From the ABA-ELI Committee. . .
Experts Say Ecosystem Services Reshaping Policy, Law; Stress Corporate Role
Inside Green Business, February 22, 2007
Ecosystem services have moved beyond the scientific realm and will increasingly impact national environmental policy and law, according to a panel of experts who discussed the growing corporate and government interest in ecosystem service issues.
Ecosystem services refers to the many key functions—such as flood and climate control, water purification, and providing food and raw materials—that natural systems provide. These functions underlie the economy and life in general, yet have not to date had a central place in policy and law, according to the panelists.
Corporations have begun paying attention to the concept, however, and significant “environmental markets” built around ecosystem services are beginning to emerge. The World Business Council on Sustainable Development and Business for Social Responsibility, two key players in corporate sustainability, have initiatives focused on environmental markets.
Speaking at a February 21 brown bag luncheon co-sponsored by the Environmental Law Institute and the American Bar Association/Section on Energy, Environment and Resources, panel moderator Ira Feldman—a well-known expert on sustainability—noted that good governance today is predicated on good ecosystem management. Lawyers are starting to advise their clients on the implications of ecosystem management for their operations, and the concept is transitioning from the “scientific and technical sphere” to law and policy, he said.
Some 50 people participated in the panel discussion by phone and approximately 20 attended in person.
Going-Forward Framework
Feldman also said that ecosystem services “is the framework going forward” and is “one of the most important concepts we’ve come across” in environmental policy. While not a part of previous environmental policy and law, the ecosystem services concept “will play a transformative role in environmental regulation,” he suggested.
The Millennium Ecosystem Assessment (MEA), a scientific appraisal of the conditions and trends of major ecosystems worldwide, which was conducted between 2001-2005, has been a major factor in putting ecosystem services higher on the agenda of governments and businesses, Feldman and other panelists said.
Panelist Tundi Agardy, a lead author of the MEA chapter on coastal ecosystems and executive director of Sound Seas, noted that 15 of the 24 “services” provided by ecosystems that were assessed in the MEA have been degraded. “There will be more and more need for policy-makers to focus on ecosystem services,” Agardy said.
A similar point was made by the Environmental Protection Agency’s Science Advisory Board (SAB) in a 1990 report, “Reducing Risk,” that called for the agency to give much greater emphasis to ecosystem protection. The SAB’s committee on valuing the protection of ecological systems and services is completing a major report that will call on EPA to expand and integrate ecosystem valuation approaches into its air, water, waste and other programs.
Organizing Principle
J.B. Ruhl, a professor at Florida State College of Law, said he recognized ecosystem services as “an organizing principle” for law and policy after attending a 1998 conference at which only two lawyers were present. He acknowledged that it is a “big challenge” to design law with ecosystem services in mind, but said he and others have begun assessing the knowledge base from which such laws would have to build.
“Ecology is complex,” he noted, and will entail “many trade-offs” as society thinks of how to protect ecosystem services. Controlling floods with wetlands in one area, for example, will impact other ecosystems. Property rights issues are central to the ecosystem services policy and legal discussion, he stressed.
Integrating regulatory and technical assistance programs to help businesses “go beyond compliance” are key to the hands-on efforts of a Georgia Department of Natural Resources performance-based program that aims to preserve ecological service functions and “build a conservation ethic” within companies, said Bob Donaghue, director of the Pollution Prevention Assistance Division (P2AD).
Under the program, Dalton Utilities used source reduction-or pollution prevention-for phosphorous treatment and avoided $30 million in costs, Donaghue said. Delta Airlines saved half a million dollars by cutting its water usage with assistance from P2AD.
Sustainability Programs
Every state now has a pollution prevention program, Donaghue said-and, with protecting ecosystems at the fore, these programs “are morphing into sustainability programs.”
Janet Ranganathan, the director of the People and Ecosystems program at the World Resources Institute (WRI), said that the MEA and the new focus on ecosystem services “changes the debate” and makes ecosystem services central to development. “It’s hard to imagine a business or government decision without an ecosystem services impact,” Ranganathan said. However, she added that information about ecosystems is not used in decision making to the extent that it must be in light of the MEA. Currently, the management of ecosystem services is fragmented across agencies, each focused on one aspect of complex ecosystems.
“The private sector will be key,” Ranganathan said, noting that WRI is working with several corporations to pilot test a “corporate ecosystem services risk assessment tool” that will help companies assess their reliance on ecosystems and the vulnerability of their operations from disruptions in the services they receive from natural systems.
Richard S. Davis, an attorney with the firm Beveridge & Diamond, who described himself as a lawyer who works on media-specific issues, said the “enthusiasm ecosystem services reintroduces into the debate” will drive policy and law. Noting that media-specific law has become so “routinized” that lawyers deal with subparts of regulations and forget they are dealing with environmental policy, Davis said he was “very excited” by the emergence of the ecosystem services concept.
At the same time, Davis said, the transition to an ecosystem services-focused law poses many challenges. For example, in the “valuation” of damages to ecosystem services, the “credibility” of monetary estimates will be a difficult key issue. He suggested carefully choosing and “good first opportunity” to create a transition into ecosystem services law and recommended the “law of the sea” as good starting place because the oceans are “no one’s property,” and economic structures protecting various vested interest have yet to be created, as they have been with property rights on land. He also said the WRI corporate risk assessment tool will play a key role in the transition.