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Abstract
Development of a bioeconomy is seen to offer significant possibilities to address the challenges faced by a world with a growing population, resource scarcity, environmental degradation and climate change. The technical potential for a bioeconomy is impressive. It has been estimated that over 90 per cent of oil-based products could be replaced by bio-based alternatives. However, there are several challenges, uncertainties and concerns related to the development of a bioeconomy. These include potential negative effects of increased use of biomass on biodiversity and food production, as well as health and environmental risks associated with new biotechnologies. The urgency of the problems that a bioeconomy may provide solutions to and the new sustainability challenges emerging in a growing bioeconomy indicate the need to develop regulatory regimes that make the transition to a bioeconomy more rapid, controlled and sustainable. This article discusses the key issues in developing a bioeconomy that call for regulatory intervention. Further, it explores the need for development in regulatory approaches, strategies and structures for enabling the transition to and sustaining a bioeconomy and explains why, in theory, regulatory systems based on integrative, adaptive and proactive law approaches are a promising way to meet that need.
Notes
1 According to the Organisation for Economic Co-operation and Development (OECD), the bioeconomy can be understood as ‘the aggregate set of economic operations in a society that use latent value incumbent in biological products and processes to capture new growth and welfare benefits for citizens and nations’. The OECD further states that the bioeconomy involves three elements: the use of advanced knowledge of genes and cell processes to design and develop new processes and products; the use of renewable biomass and efficient bioprocesses to stimulate sustainable production; and the integration of biotechnology knowledge and applications across a range of sectors. Organisation for Economic Co-operation and Development (OECD) International Futures Programme, The Bioeconomy to 2030: Designing a Policy Agenda (OECD 2006) 3, based on the European Commission's COM (2012) 60, bioeconomy ‘encompasses the production of renewable biological resources and the conversion of these resources and waste streams into value added products, such as food, feed, bio-based products and bioenergy. Its sectors and industries [agriculture, forestry, fisheries, food and pulp and paper production, as well as parts of chemical, biotechnological and energy industries] have strong innovation potential due to their use of a wide range of sciences [life sciences, agronomy, ecology, food science and social sciences], enabling and industrial technologies [biotechnology, nanotechnology, information and communication technologies (ICT), and engineering], along with local and tacit knowledge’. European Commission, ‘Innovating for Sustainable Growth: A Bioeconomy for Europe’ (COM (2012) 60 final) 3. In turn, the United States bioeconomy blueprint simply determines that ‘the bioeconomy is one based on the use of research and innovation in the biological sciences to create economic activity and public benefit’. White House, National Bioeconomy Blueprint (2012) 7. https://www.whitehouse.gov/sites/default/files/microsites/ostp/national_bioeconomy_blueprint_april_2012.pdf.
2 OECD (n 1) 3.
3 Nicolae Scarlat and others, ‘The Role of Biomass and Bioenergy in a Future Bioeconomy: Policies and Facts’ (2015) 15 Environmental Development 3 at 4.
4 Ibid.
5 Organisation for Economic Cooperation and Development (OECD), The Bioeconomy to 2030: Designing a Policy Agenda, Main Findings (OECD 2009).
6 European Commission (n 1).
7 Ministry of Food and Agriculture, National Policy Strategy on Bioeconomy (2014) http://www.bmel.de/SharedDocs/Downloads/EN/Publications/NatPolicyStrategyBioeconomy.pdf?__blob=publicationFile.
8 Ministry of Employment and the Economy, Ministry of Agriculture and Forestry and Ministry of the Environment, Finnish Bioeconomy Strategy (2014) https://www.tem.fi/files/40366/The_Finnish_Bioeconomy_Strategy.pdf.
9 Swedish Energy Agency, VINNOVA and The Swedish Research Council for Environment, Agricultural Sciences and Spatial Planning, Swedish Research and Innovation Strategy for a Bio-based Economy (2012) http://www.formas.se/PageFiles/5074/Strategy_Biobased_Ekonomy_hela.pdf.
10 White House (n 1).
11 Kes McCormick and Niina Kautto, ‘The Bioeconomy in Europe: An Overview’ (2013) 5 Sustainability 2589 www.mdpi.com/2071-1050/5/6/2589/htm accessed 4 May 2015.
12 Ibid.
13 Ministry of Employment and the Economy, Ministry of Agriculture and Forestry, Ministry of the Environment (n 8).
14 McCormick and Kautto (n 11).
15 For a review of literature on innovation and transition theory see, eg, Paul Twomey and Idil Gaziulusoy, ‘Review of System Innovation and Transitions Theories’ (2014) Working Paper for the Visions & Pathways Project.
16 For an overview of the strategies see Patrick Dieckhoff, Beate El-Cichakli and Christian Patermann, ‘Bioeconomy Policy: Synopsis and Analysis of Strategies in the G7’ (German Bioeconomy Council 2015).
17 Ibid.
18 McCormick and Kautto (n 11).
19 Ibid.
20 For instance, one measure under the Finnish Bioeconomy Strategy is ‘Mapping the steering instruments for the bioeconomy in the administrative branches of the Ministry of Agriculture and Forestry, the Ministry of Employment and the Economy and the Ministry of the Environment and assessing the impacts of these on the operating conditions of the bioeconomy’. Ministry of Employment and the Economy, Ministry of Agriculture and Forestry, Ministry of the Environment (n 8) at 21.
21 See, eg, Jody Endres, ‘Bioenergy, Resource Scarcity and the Rising Importance of Land Use Definitions’ (2013) 88 North Dakota Law Review 559; Seita Romppanen, ‘The EU's Biofuels: Certified as Sustainable?’ (2012) 3 Renewable Energy Law and Policy Review 173.
22 Gregory Mandel, ‘Regulating Emerging Technologies’ (2009) Temple University Beasley, School of Law, Legal Studies Research Paper Series, Research Paper No 2009-18; John Monica, Geert van Calster and Agapi Patsa, ‘A Nanotechnology Legal Framework’ in Diana Bowman and Matthew Hull (eds), Nanotechnology Environmental Health and Safety: Risks, Regulation and Management (2nd edn, Elsevier 2014).
23 Ibid.
24 Thus far, legal research on the bioeconomy has focused on specific areas of bioeconomy, such as bioenergy. See, eg, Endres (n 21); Romppanen (n 21).
25 Helena Haapio, ‘Quality Improvement through Proactive Contracting: Contracts Are Too Important to Be Left to Lawyers!’ (1998) 52 American Society for Quality, Proceedings of Annual Quality Congress 243; Soile Pohjonen, ‘Proactive Law in the Field of Law’ in Peter Wahlgren (ed), A Proactive Approach (Stockholm Institute for Scandinavian Law 2006); Gerlinde Berger-Walliser and Paul Shrivastava, ‘Beyond Compliance: Sustainable Development, Business, and Proactive Law’ (2015) 46 Georgetown Journal of International Law 417.
26 See, eg, JB Ruhl, ‘General Design Principles for Resilience and Adaptive Capacity in Legal Systems – With Applications to Climate Change Adaptation’ (2011) 89 North Carolina Law Review 1373; JB Ruhl, ‘Panarchy and the Law’ (2012) 17 Ecology and Society 31; Craig Arnold and Lance Gunderson, ‘Adaptive Law’ in Craig Allen and Ahjond Garmestani (eds), Social-Ecological Resilience and Law (Columbia University Press 2014); Robin Craig and JB Ruhl, ‘Designing Administrative Law for Adaptive Management’ (2014) 67 Vanderbilt Law Review 1 http://ssrn.com/abstract=2222009 or http://dx.doi.org/10.2139/ssrn.2222009 last accessed 21 June 2016.
27 See among others Emilia Korkea-aho, Adjudicating New Governance: Deliberative Democracy in the European Union (Routledge 2015); Mark Dawson, New Governance and the Transformation of European Law: Coordinating EU Social Law and Policy (Cambridge University Press 2011); Burkard Eberlein and Dieter Kerwer, ‘New Governance in the European Union: A Theoretical Perspective’ (2004) 42 Journal of Common Market Studies 121; Gráinne de Burca and Joanne Scott, Law and New Governance in the EU and US (Hart Publishing 2006).
28 The term ‘regulation’ is understood by us here in this paper in a broad sense covering instruments ranging from traditional state-driven forms of legal regulation to different forms of self-regulation and co-regulation designed to guide certain activities or actors. Accordingly, by ‘regulatory system’ we mean the set of these different instruments as well as actors and institutions participating in regulatory processes.
29 McCormick and Kautto (n 11).
30 Louise Staffas, Mathias Gustavsson and Kes McCormick, ‘Strategies and Policies for the Bioeconomy and Bio-based Economy: An Analysis of Official National Approaches’ (2013) 5 Sustainability 2751.
31 Green business refers to wider areas of business than bioeconomy. Green business includes also those fields that use non-renewable natural resources as raw material but develop their production processes in a more environmentally friendly way. See, eg, Dennis Hirsch, ‘Green Business and the Importance of Reflexive Law: What Michael Porter Didn’t Say’ (2010) 62 Administrative Law Review 1063.
32 Michael Porter and Claas van der Linne, ‘Green and Competitive’ (1995) 73 Harvard Business Review 120. His views are largely supported by literature. See, eg, Landis Gabel and Bernard Sinclair-Desgagné, ‘The Firm, Its Routines and the Environment’ in Thomas Tietenberg and Henk Folmer (eds), The International Yearbook of Environmental and Resource Economics Edward Elgar Publishing (1998); Bernard Sinclair-Desgagné and Landis Gabel, ‘Environmental Auditing in Management Systems and Public Policy’ (1997) 33 Journal of Environmental Economics & Management 331; Hirsch (n 31).
33 Porter and van der Linne (n 32) 99.
34 John Dernbach, ‘Creating the Law of Environmentally Sustainable Economic Development’ (2011) Widener Law School Legal Studies Research Paper Series no 11-10, at 630.
35 See, eg, Amanda Perry-Kessaris (ed), Law in the Pursuit of Development: Principles into Practice? (Routledge-Cavendish 2010).
36 Dernbach (n 34).
37 Ibid at 632.
38 Dieckhoff and others (n 16).
39 For example, Ministry of Employment and the Economy, Ministry of Agriculture and Forestry, Ministry of the Environment (n 8).
40 Ibid.
41 Food, Conservation, and Energy Act of 2008, 7 USC § 8111 (2012).
42 Ibid.
43 Property rights and their scope have not been defined precisely in legislation and they’ve been constituted differently at different times. Also transition to a bioeconomy and the associated land use problems may well have an effect on evolution of property rights. As Scotford and Walsh explain, rights to use land are affected in many ways by environmental regulations, and these regulations partly constitute property rights. In turn, property rights affect environmental regulation, through legal protection for property interests. Responding to the rising opportunities and land use problems associated with a growing bioeconomy calls for property rights to be adaptive and responsive. Eloise Scotford and Rachel Walsh, ‘The Symbiosis of Property and English Environmental Law – Property Rights in a Public Law Context’ (2013) 76 The Modern Law Review 1010.
44 Ibid.
45 Jan Coen van Elburg and Derk Loorbach, ‘Transition Perspective on Regulation and Renewable Energy’ (2012) The European Business Review 67.
46 Matti Hyyrynen, ‘Ympäristön kannalta haitalliset tuet’ (2013) 13 Ympäristöministeriön raportteja, 1.
47 OECD (n 1).
48 Ibid.
49 Geert van Calster and Thomas de Romph, ‘Regulating Opportunity and Innovation in the EU. The Case of Sustainable Materials (Plastics) Management’ (1 March 2015) http://ssrn.com/abstract=2588562 or http://dx.doi.org/10.2139/ssrn.2588562 last accessed 21 June 2016.
50 Eija Punta and Joonas Alaranta (eds), ‘Niukat resurssit viisaasti käyttöön -sääntelystä biotalouden edistäjä’ (2016) 6 Valtioneuvoston selvitys- ja tutkimustoiminnan julkaisusarja 1.
51 McCormick and Kautto (n 11).
52 Elena Blanco and Jona Razzaque, Globalisation and Natural Resources Law (Edward Elgar 2011).
53 Committee on America's Energy Future, Division on Engineering and Physical Sciences and National Research Council, America's Energy Future: Technology and Transformation (2009) (listing ten reasons why energy efficiency opportunities are not more attractive). http://www.nap.edu/catalog/12091/americas-energy-future-technology-and-transformation.
54 Dearbhla Keegan and others, ‘Cascading Use: A Systematic Approach to Biomass beyond the Energy Sector’ (2013) 7 Biofuels, Bioproducts & Biorefining 194.
55 Ibid.
56 The ‘waste hierarchy’ sets the following priority order when shaping waste policy and managing waste at the operational level: prevention, (preparing for) reuse, recycling, recovery and, as the least preferred option, disposal (which includes landfilling and incineration without energy recovery). http://ec.europa.eu/environment/waste/ accessed 3 March 2016.
57 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives.
58 Regeling van de Minister van Economische Zaken van 27 maart 2015, nr WJZ/15024397, houdende wijziging van de Algemene uitvoeringsregeling stimulering duurzame energieproductie en de Regeling aanwijzing categorieën duurzame energieproductie 2015 in verband met de opname van de duurzaamheidscriteria voor het gebruik van vaste en gasvormige biomassa en enkele technische aanpassingen.
59 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC.
60 Regulation (EC) No 2003/2003 of the European Parliament and of the Council of 13 October 2003 relating to fertilisers.
61 http://european-biogas.eu/wp-content/uploads/files/2013/11/2013-11-28-Position-paper-digestate-and-REACH-EN-final.pdf accessed 20 April 2016.
62 Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC.
63 Proposal for a Regulation on the making available on the market of CE marked fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009, COM (2016) 157.
64 Endres (n 21).
65 Tobias Plieninger and Mirijam Gaertner, ‘Harnessing Degraded Lands for Biodiversity Conservation’ (2011) 19 Journal for Nature Conservation 18.
66 Eckehard Brockerhoff and others, ‘Plantation Forests and Biodiversity: Oxymoron or Opportunity?’ (2008) 17 Biodiversity Conservation 925.
67 Miren Onaindia and others, ‘Co-benefits and Trade-offs between Biodiversity, Carbon Storage and Water Flow Regulation’ (2013) 289 Forest Ecology and Management 1.
68 Julian Aherne and others, ‘Impacts of Forest Biomass Removal on Soil Nutrient Status under Climate Change: A Catchment-based Modelling Study for Finland’ (2012) 107 Biogeochemistry 471.
69 Ibid.
70 IPPC, ‘Transport and Its Infrastructure’ in B Metz and others (eds), Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2007).
71 For scholarship that discusses the tragedy of the commons, see Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press 1990); Carol Rose, ‘Rethinking Environmental Controls: Management Strategies for Common Resources’ (1991) 1 Duke Law Journal 1; Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243.
72 To this end, some of the sustainability challenges related to the use of biomass resources in the future economy can be addressed through moderate evolution of contemporary norms. Some regulations addressing these new sustainability problems regarding the growing bioeconomy have already been adopted. For instance the EU has tackled the sustainability problems related to biofuels through introducing so-called sustainability criteria for biofuels. However, these criteria have been criticised as inadequate to secure the true sustainability of biofuels and changes are being made to the directive. Moreover, the sustainability criteria currently apply only to liquid biofuels leaving solid and gaseous biomass uses outside the scope. They also don’t apply to biomass used for the production of bio-based products and bio-chemicals. See, eg, Renske Giljam, ‘Towards a Holistic Approach in EU Biomass Regulation (2016) 28 Journal of Environmental Law 95.
73 Among others, Endres argues that legal metrics are urgently needed to reconcile complex interactions between the economic, cultural and ecological values inherent in ‘MIDA’ lands and to manage those lands for optimum social, economic and environmental benefits. She notes that even the concrete definitions for MIDA lands that could be operationalised into legally enforceable classification criteria to guide resource allocation are missing in both the US and the EU. Endres (n 21).
74 W Kip Viscusi, ‘Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety’ (1989) 6 Yale Journal on Regulation 65.
75 See, eg, John Graham and Jonathan Baert Wiener (eds), Risk versus Risk: Trade-offs in Protecting Health and the Environment (Harvard University Press 1995).
76 See, eg, Volker Mauerhofer, ‘Lose Less Instead of Win More: The Failure of Decoupling and Perspectives for Competition in a Degrowth Economy’ (2013) 22 Environmental Values 43.
77 Volker Mauerhofer, ‘3-D Sustainability: An Approach for Priority Setting in Situation of Conflicting Interests towards a Sustainable Development’ (2008) 63 Ecological Economics, 496.
78 Blake Alcott, ‘Jevons’ Paradox’ (2005) 54 Ecological Economics 9; John Polimeni and others, The Myth of Resource Efficiency: The Jevons Paradox (Earthscan 2008).
79 M Binswanger, ‘Technological Progress and Sustainable Development: What About the Rebound Effect?’ (2001) 36 Ecological Economics 119; European Environment Agency, Late Lessons from Early Warnings: The Precautionary Principle 1896–2000 (European Environment Agency, Environmental Issues Report, no 22, Copenhagen, Denmark 2001) www.eea.europa.eu/publications/environmental_issue_report_2001_22 last accessed 21 June 2016.
80 Mauerhofer (n 76).
81 Uwe Schneidewind and Angelika Zahrnt, The Politics of Sufficiency, Making It Easier to Live the Good Life (Oekom 2014); Blake Alcott, ‘The Sufficiency Strategy: Would Rich-World Frugality Lower Environmental Impact?’ (2008) 64 Ecological Economics 770; Hermand Daly, Steady-State Economics (2nd edn, Island Press 1991); Rob Dietz and Dan O’Neill, Enough Is Enough (Berrett-Koehler 2013); Tim Jackson, Prosperity without Growth: Economics for a Finite Planet (Earthscan 2009).
82 Frank Figge, William Young and Ralf Barkemeyer, ‘Sufficiency or Efficiency to Achieve Lower Resource Consumption and Emissions? The Role of the Rebound Effect’ (2014) 69 Journal of Cleaner Production 216.
83 On this benchmark see, eg, Mathis Wackernagel and William Rees, Our Ecological Footprint: Reducing Human Impact on the Earth (New Society Publishers 1996); Gernot Stoeglehner and Michael Narodoslawsky, ‘Implementing Ecological Footprinting in Decision-Making Processes’ (2008) 25 Land Use Policy 421.
84 Pete Smith and others, ‘Competition for Land’ (2010) 365 Philosophical Transactions of the Royal Society B 2941.
85 Brett Frischmann, Infrastructure: The Social Value of Shared Resources (Oxford University Press 2012) at 227.
86 See, eg, Volker Mauerhofer, Ewald Galle and Marco Onida, ‘The Alpine Convention and Wilderness Protection’ in Kees Bastmeijer (ed), Wilderness Protection in Europe: The Role of International, European and National Law (Cambridge University Press 2016).
87 Frischmann (n 85). A first step could be also to use existing artificial plantations more intensively and allow for natural rejuvenation or afforest trees that do not solely grow there but reflect the potential natural tree composition of that stand. Volker Mauerhofer and Takashi Hayashi (forthcoming). Volker Mauerhofer, ‘3-D Sustainability: An Approach for Priority Setting in Situation of Conflicting Interests Towards a Sustainable Development’ (2008) 63 Ecological Economics 496.
88 Frischmann (n 85) at 246–47. Kevin Hanna, Ismo Pölönen and Kaisa Raitio, ‘A Potential Role for EIA in Finnish Forest Planning: Learning from Experiences in Ontario, Canada’ (2011) 29 Impact Assessment and Project Appraisal 99.
89 Hanna and others (n 88).
90 For an overview see, eg, Volker Mauerhofer, ‘Public Participation in Environmental Matters: Compendium, Challenges and Chances Globally’ (2016) 52 Land Use Policy 481.
91 Biotechnology can be understood as the science of using living things to produce goods and services. It involves manipulating and modifying organisms to create new and practical applications for primary production, health and industry.
92 Nanotechnology involves a variety of activities designed to manipulate matter at the atomic scale. Building matter from the atom up allows for more precise and complex configuration of material, and permits the production of materials with different physical, chemical and biological properties from what was previously possible. Certain materials, for example, become stronger, more flexible, change their conductivity, or develop biological and antimicrobial properties at the nanoscale. Such developments have widespread potential application in health care, medicine, energy, environmental sciences, electronics, optics and other applied materials sciences. Mark Ratner and Daniel Ratner, Nanotechnology: A Gentle Introduction to the Next Big Idea (Pearson Education 2003).
93 McCormick and Kautto (n 11).
94 Viscusi (n 74).
95 Mandel (n 22), at 1.
96 Ibid.
97 Gregory Mandel, ‘Gaps, Inexperience, Inconsistencies, and Overlaps: Crisis in the Regulation of Genetically Modified Plants and Animals’ (2004) 45 William & Mary Law Review 2167; Gregory Mandel, ‘Nanotechnology Governance’ (2008) 59 Alabama Law Review 1323.
98 Mandel (n 22).
99 Ibid.
100 Van Calster and de Romph (n 49).
101 Mandel (n 22).
102 Ibid.
103 Well-known criteria for selecting among options in public environmental law include, inter alia, effectiveness, economic efficiency, environmental justice and the ability to stimulate technological innovation. See, eg, Sarah Light and Eric Orts, ‘Parallels in Public and Private Governance’ (2015) 5 Michigan Journal of Environmental & Administrative Law 1, describing sets of criteria developed by environmental scholars and instrument choice theorists.
104 See, eg, Gunther Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law & Society Review 239.
105 Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Socio-Legal Studies, Oxford University Press 1995).
106 Elinor Ostrom, ‘A Polycentric Approach for Coping with Climate Change’ (2009) World Bank Research Working Paper No 5095 https://openknowledge.worldbank.org/bitstream/handle/10986/4287/WPS5095.pdf last accessed 21 June 2016.
107 See, eg, Korkea-aho (n 27); Neil Gunningham, ‘The New Collaborative Environmental Governance: The Localization of Regulation’ (2009) 145 Law & Society 36; Orly Lobel, ‘The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought’ (2004) 89 Minnesota Law Review 342.
108 Jody Freeman, ‘Collaborative Governance in the Administrative State’ (1997) 45 UCLA Law Review 1; Bradley Karkkainen, ‘Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism’ (2002) 21 Vanderbilt Environmental Law Journal 189.
109 Light and Orts (n 103).
110 Ibid.
111 Ministry of Employment and the Economy, Ministry of Agriculture and Forestry, Ministry of the Environment (n 8).
112 See, eg, Craig Arnold, ‘Fourth-Generation Environmental Law: Integrationist and Multimodal’ (2011) 35 William & Mary Environmental Law and Policy Review 771; Robin Craig, ‘Climate Change, Regulatory Fragmentation, and Water Triage’ (2008) 79 University of Colorado Law Review 825; Holly Doremus, ‘CALFED and the Quest for Optimal Institutional Fragmentation’ (2009) 12 Environmental Science & Policy 729.
113 Ralf Michaels, ‘The Mirage of Non-State Governance’ (2010) Duke Law Working Papers, Paper 26 scholarship.law.duke.edu/working_papers/26.
114 Ibid.
115 See, eg, Arnold (n 112); Doremus (n 112); Craig (n 112); Tumai Murombo, ‘Regulating Energy in South Africa: Enabling Sustainable Energy by Integrating Energy and Environmental Regulation’ (2015) 33 Journal of Energy & Natural Resources Law 320.
116 Suvi Borgström and Jukka Similä, ‘Assessing Governance Structures for Green Infrastructure’ (2014) 3 Nordic Journal of Environmental Law 7.
117 Arnold (n 112).
118 Ministry of Employment and the Economy, Ministry of Agriculture and Forestry, Ministry of the Environment (n 8).
119 See, eg, Ostrom (n 106).
120 See, eg, ibid; Teubner (n 104); Korkea-aho (n 27); Freeman (n 108). There are already numerous examples of polycentric and multiscalar approaches in the field of environmental law. One such example is the European regulatory framework for sustainable forestry. Currently, forest regulation comes from all levels of governance: from international and European to national and subnational, and includes both public and private regulatory tools. The privately held forest certification schemes such as the Programme for the Endorsement of Forest Certification (PEFC) and the Forest Stewardship Council (FSC) are among the oldest private environmental standards. In 2013 these private schemes were complemented by a new piece of public regulation, as the EU Timber Regulation (Regulation 995/2010/EU 2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market) came into force prohibiting the placing of illegally harvested timber on the EU market and requiring traders to exercise due diligence. This combination of public and private regulation illustrates the multilayered and increasingly concurring legislative practice in modern environmental regulation. See, eg, FH Kistenkas, ‘Concurring Regulation in European Forest Law. Forest Certification and the New EU Timber Regulation’ (2013) 22 GAIA 166.
121 Tapio Määttä, ‘Biomassan kestävä käyttö ja uudistuva luonnonvaraoikeus’ in Mikale Hildén and others (eds), Uusi luonnonvaratalous (Gaudeamus 2013).
122 Ibid. Climate change is an example of a complex global problem that has blurred the boundaries between natural resources and pollution control regulation, which have traditionally developed separately. As climate change is not only due to the increased GHG emissions but also affected by the use of natural resources such as forests, the international climate policies include tools to address both reduction of GHG emissions and use of forests.
123 Arnold (n 112). Similarly Doremus characterises the rejection of unimodal centralised governance and the alternative use of networks and new governance structures to link fragmented institutional structures as ‘optimal fragmentation’. Doremus (n 112).
124 Arnold (n 112), at 874.
125 Ibid, 868.
126 Ibid, 872.
127 Ibid.
128 Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning.
129 http://europa.eu/rapid/press-release_IP-14-459_en.htm accessed 4 March 2016. See also FH Kistenkas, ‘Sustainable Development: New Thoughts, New Policy, New Law’ in Volker Mauerhofer (ed), Legal Aspects of Sustainable Development (Springer International Publishing 2016).
130 Volker Mauerhofer, ‘The “Governance-Check”: Assessing the Sustainability of Public Spatial Decision-Making Structures’ (2013) 30 Land Use Policy 328.
131 JB Ruhl, ‘General Design Principles for Resilience and Adaptive Capacity in Legal Systems – With Applications to Climate Change Adaptation’ (2011) 89 North Carolina Law Review 1373; JB Ruhl, ‘Panarchy and the Law’ (2012) 17 Ecology and Society 31; Arnold and Gunderson (n 26); Robin Craig and JB Ruhl, ‘Designing Administrative Law for Adaptive Management’ (2014) 67 Vanderbilt Law Review 1 http://ssrn.com/abstract=2222009 or http://dx.doi.org/10.2139/ssrn.2222009 last accessed 21 June 2016.
132 Teubner (n 104).
133 Ayres and Braithwaite (n 105).
134 Ostrom (n 106).
135 See, eg, Korkea-aho (n 27).
136 Freeman (n 108).
137 Charles Sabel and Jonathan Zeitlin (eds), Experimentalist Governance in the European Union (Oxford University Press 2010).
138 See, eg, Craig and Ruhl (n 131); Arnold and Gunderson (n 26).
139 Ruhl 2011 (n 131); Marleen van Rijseick and William Salet, ‘Enabling the Contextualization of Legal Rules in Responsive Strategies to Climate Change’ (2012) 17 Ecology & Society 18; Robert Glicksman, ‘Ecosystem Resilience to Disruptions Linked to Global Climate Change: An Adaptive Approach to Federal Land Management’ (2009) 87 Nebraska Law Review 833; Alejandro Camacho, ‘Adapting Governance to Climate Change: Managing Uncertainty through Learning Infrastructure’ (2009) 59 Emory Law Journal 1.
140 Holly Doremus, ‘Precaution, Science, and Learning While Doing in Natural Resource Management’ (2007) 82 Washington Law Review 547; Daniel Schramm and Akiva Fishman, ‘Legal Frameworks for Adaptive Natural Resource Management in a Changing Climate’ (2010) 22 Georgetown International Environmental Law Review 491.
141 Olivia Green and others, ‘EU Water Governance: Striking the Right Balance between Regulatory Flexibility and Enforcement?’ (2013) 18 Ecology and Society 10 http://dx.doi.org/10.5751/ES-05357-180210; Barbara Cosens, ‘Transboundary River Governance in the Face of Uncertainty: Resilience Theory and the Columbia River Treaty’ (2010) 30 Journal of Land, Resources and Environmental Law 229.
142 Ahjond Garmestani and Melinda Benson, ‘A Framework for Resilience-Based Governance of Social-Ecological Systems’ (2013) 18 Ecology and Society 9; Ahjond Garmestani, Craig Allen and Heriberto Cabezas, ‘Panarchy, Adaptive Management, and Governance: Policy Options for Building Resilience’ (2009) 87 Nebraska Law Review 1036; Ruhl 2012 (n 131); Arnold and Gunderson (n 26).
143 Carl J Walters and CS Holling, ‘Large-scale Management Experiments and Learning by Doing’ (1990) 71 Ecology 2060; Holly Doremus and others, ‘Making Good Use of Adaptive Management’ (2011) Center for Progressive Reform White Paper No 1104, UC Irvine School of Law Research Paper No 2011-24 http://ssrn.com/abstract=1808106 or http://dx.doi.org/10.2139/ssrn.1808106 last accessed 21 June 2016 (also notifying that adaptive management has not always been successful).
144 Arnold and Gunderson (n 26).
145 Ibid.
146 Craig and Ruhl (n 131); Ruhl 2011 (n 131).
147 See, eg, JB Ruhl, ‘Regulation by Adaptive Management – Is It Possible?’ (2005) 7 Minnesota Journal of Law, Science & Technology 21 (arguing that adaptive management may be incompatible with existing public administrative law).
148 Garmestani and Benson (n 142).
149 See, eg, Arnold and Gunderson (n 26); Ruhl 2011 (n 131).
150 Arnold and Gunderson (n 26).
151 Ibid.
152 See also Ostrom (n 106).
153 Advocates for monocentric approaches contend that subnational governments and private sector actors lack sufficient incentives, authority/power, expertise or resources to address these problems adequately. See, eg, Benjamin Sovacool, ‘The Best of Both Worlds: Environmental Federalism and the Need for Federal Action on Renewable Energy and Climate Change’ (2008) 27 Stanford Environmental Law Journal 397; Kirsten Engel, ‘State Environmental Standard-Setting: Is There a “Race” and Is It “To the Bottom”?’ (1997) 48 Hastings Law Journal 271; Robert Glicksman and Richard Levy, ‘Climate Change Adaptation: A Collective Action Perspective on Federalism Considerations’ (2010) 40 Environmental Law 1159. For a critique of state and local climate policies and a call for a global legal regime to address climate change, see Jonathan Wiener, ‘Think Globally, Act Globally: The Limits of Local Climate Policies’ (2007) 155 University of Penn Law Review 1961.
154 A growing number of experts on complex environmental problems have argued for the superiority of polycentrism: Ostrom (n 106); Doremus (n 112); Zygmunt Plater, ‘Environmental Law and Three Economies: Navigating a Sprawling Field of Study, Practice, and Societal Governance in Which Everything Is Connected to Everything Else’ (1999) 23 Harvard Environmental Law Review 359.
155 Brian Galle and Joseph Leahy, ‘Laboratories of Democracy? Policy Innovation in Decentralized Governments’ (2009) 58 Emory Law Journal 1333.
156 Doremus (n 112).
157 Arnold and Gunderson (n 26).
158 Ostrom (n 106).
159 JB Ruhl and James Salzman, ‘Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away’ (2010) 98 California Law Review 59, 80; Arnold and Gunderson (n 26).
160 Arnold and Gunderson (n 26).
161 Ibid.
162 Punta and Alaranta (n 50).
163 Craig Arnold, ‘Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands’ (2011) 61 Syracuse Law Review 213.
164 Arnold and Gunderson (n 26).
165 Ibid.
166 Ibid.
167 Ibid.
168 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy, Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy.
169 Eric Biber, ‘Adaptive Management and the Future of Environmental Law’ (2013) 46 Akron Law Review 933.
170 See Bruce Pardy, ‘The Pardy-Ruhl Dialogue on Ecosystem Management Part V: Discretion, Complex-Adaptive Problem Solving and the Rule of Law’ (2008) 25 Pace Environmental Law Review 341.
171 See, eg, White House (n 1).
172 The approach specifically called proactive law emerged in Scandinavia in the late 1990s, first as an effort to improve the contracting process in business dealings. The goal was to move the focus from the traditional contract law approach, which is based on interpretation of legal rules by a court, ie, ex post, to the contracting process and to develop an adequate set of tools for promoting and building well-functioning collaboration in real-life relationships. Since then the idea of proactive law has been further developed and extended into new areas and its fields of application enlarged. Gerlinde Berger-Walliser, ‘The Past and Future of Proactive Law: An Overview of the Development of the Proactive Law Movement’ in Gerlinde Berger-Walliser and Kim Østergaard (eds), Proactive Law in a Business Environment (Djof Publishing 2013).
173 Ibid.
174 See, eg, ibid; Haapio (n 25); Gerlinde Berger-Walliser and Paul Shrivastava, ‘Beyond Compliance: Sustainable Development, Business, and Proactive Law’ (2015) 46 Georgetown Journal of International Law 417; Opinion of the European Economic and Social Committee on ‘The Proactive Law Approach: A Further Step Towards Better Regulation at EU Level’ (2009/C 175/05).
175 Pohjonen (n 25) at 56.
176 Berger-Walliser and Kim Østergaard (n 172) at 16.
177 Ibid.
178 Other approaches included in this category include among others feministic law, pluralistic and polycentric law and restorative justice. Susan Daicoff, ‘Law as a Healing Profession: The Comprehensive Law Movement’ (2005) Pepperdine Dispute Resolution Law Journal, NYLS Clinical Research Institute Paper No 05/06-12 http://ssrn.com/abstract=875449 last accessed 21 June 2016.
179 Berger-Walliser and Kim Østergaard (n 172), at 18.
180 Proactive law practice has its origins in preventive law. The idea of prevention was first introduced by Louis M Brown in the 1950's in his ground-laying treatise Preventive Law. Preventive law focuses on managing conflict and avoiding litigation, handling problems and managing risks, minimising costs and losses and provides professional legal care. Louis M Brown, Preventive Law (Prentice-Hall 1950). See more on differences between proactive law and preventive law in Berger-Walliser (n 171) at 20–23.
181 Berger-Walliser (n 171), at 22; Opinion of the European Economic and Social Committee on ‘The Proactive Law Approach: A Further Step towards Better Regulation at EU Level’ (2009/C 175/05) at 5.5.
182 Opinion of the European Economic and Social Committee on ‘The Proactive Law Approach: A Further Step towards Better Regulation at EU Level’ (2009/C 175/05) at 1.4 (emphasis in original).
183 Ibid, 1.5.
184 Ibid, 1.10.
185 See, eg, Haapio (n 25); Pohjonen (n 25).
186 Ibid.
187 A case in point is the relatively new piece of EU timber regulation (EUTR) (Regulation No 995/2010 of the European Parliament and of the Council of 20 October 2010) which requires companies placing timber or timber products on the European market (both imported and domestic) to implement a due diligence system (DDS). The EUTR DDS includes the following three elements to minimise the risk that timber products come from illegal harvesting: (1) Information: Companies must have access to information specifying the timber and timber products, country of harvest, species, quantity, details of the supplier and information on compliance with national legislation; (2) Risk assessment: Based on the information provided and criteria set out in the EUTR, companies must assess the risk of illegal timber in their supply chain. Supplies with ‘negligible’ risk may be traded further; (3) Risk mitigation: In case of ‘non-negligible’ risk of timber products being illegal, risk mitigation measures can minimise the risk effectively. Measures may range from requiring additional information from suppliers and/or requesting the supplier to obtain PEFC certification, for example.
188 See, eg, Haapio (n 25); Pohjonen (n 25); Berger-Walliser and Shrivastava (n 25).
189 Pohjonen (n 25).
190 Ibid.
191 Teubner (n 104).
192 Berger-Walliser and Shrivastava (n 25).
193 Pohjonen (n 25) at 52.
194 Ibid.
195 Ibid.
196 Pohjonen (n 25); Berger-Walliser and Shrivastava (n 25).
197 Berger-Walliser and Shrivastava (n 25); George Siedel and Helena Haapio, ‘Using Proactive Law for Competitive Advantage’ (2010) 47 American Business Law Journal 641.
198 See, eg, OECD (n 1); White House (n 1); David Wield, ‘Bioeconomy and the Global Economy: Industrial Policies and Bio-Innovation’ (2013) 25 Technology Analysis & Strategic Management 1209; Joanna Chataway, Joyce Tait and David Wield, ‘The Governance of Agro- and Pharmaceutical Biotechnology: Public Policy and Industrial Strategy’ (2006) 5 Technology Analysis & Strategic Management 169; Mandel (n 22).
199 See, eg, Mandel (n 22); Monica and others (n 22).
200 Ibid.
201 See, eg, Mandel (n 22); Monica and others (n 22).
202 Ibid.
203 Van Calster and de Romph (n 49).
204 McCormick and Kautto (n 11).
205 Mandel (n 22).