BARRERAS ORGANIZACIONALES

Planned adaptation responses fall into different modes, ranging from resisting change or facilitating transition, through to facilitating or triggering fundamental system

transformation.15 _{These modes can be understood in terms of changes to biodiversity and}

ecological interactions as well as to the structure and function of legal frameworks themselves.16 _{Each adaptation mode has different characteristics for decision-making}

processes, applicable laws and policies, and the extent of information required to make decisions.17 The concept of resilience, as a property of a social-ecological system, has been used to describe both the ‘resistance’ and ‘transition’ modes in this spectrum.18 _{While the}

concept of resilience is increasingly prominent in environmental law scholarship, this thesis adopts the typology of resistance, transition and transformation for clarity, and to avoid confusion with the broader concept of resilience thinking.19

14 _{Decision makers must also anticipate conflict between biodiversity and human adaptation goals eg Watson,}

James EM and Daniel B Segan, ‘Accommodating the human response for realistic adaptation planning: response to Gillson et al’ (2013) 28(10) Trends in Ecology & Evolution 573, 574.

15 _{This spectrum has been defined differently by different authors, eg JB Ruhl has described the ‘modes of}

adaptation’ as ‘resist, transform, move’, Ruhl JB, ‘Climate change adaptation and the structural transformation of environmental law’ (2010) 40 Environmental Law 363, 385-7; and Fischman and colleagues define it in terms of ‘resistance’, ‘resilience’ and ‘transformation’, Fischman, Robert L et al, ‘Planning for adaptation to climate change: lessons from the US National Wildlife Refuge System’ (2014) 64(11) BioScience 993, 1001; see also Poiani, Karen A et al, ‘Redesigning biodiversity conservation projects for climate change: examples from the field’ (2011) 20(1) Biodiversity and Conservation 185.

16 _{Park SE et al, ‘Informing adaptation responses to climate change through theories of transformation’}

(2012) 22(1) Global Environmental Change 115, 115; Ruhl JB, ‘General design principles for resilience and adaptive capacity in legal systems - with applications to climate change adaptation’ (2011) 89 North Carolina Law Review 1373.

17 _{Park et al, above n 16, 116.}

18 _{Eg Heller, Nicole E and Erika S Zavaleta, ‘Biodiversity management in the face of climate change: A}

review of 22 years of recommendations’ (2009) 142(1) Biological Conservation 14; Fischman, above n 15, 1001; Morecroft, Michael D et al, ‘Resilience to climate change: translating principles into practice’ (2012) 49(3) Journal of Applied Ecology 547.

19 _{Resilience thinking encompasses the whole spectrum of modes, anticipating the possibility – or}

inevitability over time – of system transformation, as a result of either planned or unplanned drivers of system change, focusing on the ‘dynamics and development of complex social-ecological systems… [as they] interrelate across multiple scales’, Folke C, ‘Resilience thinking: integrating resilience, adaptability and transformability’ (2010) 15(4) Ecology and Society 20.

Resistance is defined as ‘the ability of a system to withstand a disturbance without

significant loss of function’.20 Resisting change by preserving the status quo is a common strategy in existing conservation laws, including where protected area laws seek to protect particular species mixes within defined, stationary boundaries.21 In a climate adaptation context, resistance involves active intervention at one level of a system to make the whole system more able to absorb change, accepting that some changes to parts of the system may be unavoidable.22 Resistance may be a socially- and ecologically-desirable adaptation strategy for conservation in some circumstances, especially in the short-term. Interventions to minimise change to, or loss of, climate refugia or ecosystem processes – for example, by manipulating or excluding fire regimes or actively watering a drying wetland system – may be deemed an appropriate and desirable short-term goal.23 It is unlikely to be financially or ecologically viable in the long-term, particularly at large scales.24 Resistance will be undesirable in many cases, particularly if it ‘…leaves systems vulnerable to total collapse if interventions are not maintained or compromise[s] other system components’.25

Transition as an adaptation response involves accepting or accommodating change, and taking decisions in the short term that keep open different adaptation options in the future. ‘Adaptation pathways’ decision tools are an example of support for a transition response to climate change.26 _{Transition approaches may include relying on climate projections to}

20 _{Glick, Patty, Helen Chmura and Bruce A Stein, Moving the conservation goalposts: a review of climate}

change adaptation literature (US National Wildlife Federation and National Council for Science and the Environment, 2011) 10.

21 _{The term resistance is also used to describe avoiding loss from climate change, Heller and Zavaleta,}

above n 18, 25-6; Poiani, above n 15.

22 _{Heller and Zavaleta, above n 18; Morecroft, above n 18, 548.}

23 _{Eg Stein, Bruce A et al, ‘Adaptation to impacts of climate change on biodiversity, ecosystems and}

ecosystem services’ in Impacts of climate change on biodiversity, ecosystems, and ecosystem services: technical input to the 2013 U.S. National Climate Assessment (2012) 244, 6-4; Hansen LJ, JL Biringer and JR Hoffman, Buying time: a user’s manual for building resistance and resilience to climate change in natural systems (World Wildlife Fund, 2003).

24 _{Millar, Constance I, Nathan L Stephenson and Scott L Stephens ‘Climate change and forests of the future:}

managing in the face of uncertainty’ (2007) 17 Ecological Applications 2145, 2147 describe it as a futile effort to ‘paddle upstream’; Dunlop, Michael et al, The implications of climate change for biodiversity conservation and the National Reserve System (Final synthesis report prepared for the Australian Government, CSIRO Climate Adaptation Flagship, 2012) 21-2.

25 _{Heller and Zavaleta, above n 18, 25.}

26 _{Commonwealth Scientific and Industrial Research Organisation, ‘Enabling adaptation pathways’}

<https://research.csiro.au/eap/>; Wise RM et al, ‘Reconceptualising adaptation to climate change as part of pathways of change and response’ (2014) 28 Global Environmental Change 325.

justify listing currently healthy species populations as threatened,27 or designating and conserving critical habitat that is projected to be lost under climate change.28 These approaches would direct prioritised conservation planning effort towards climate vulnerabilities, and lend greater weight to climate-threatened biodiversity in land use planning decisions. While transition responses may be appropriate as a starting point, greenhouse gas emissions are not being reduced at the rate needed to limit global

temperatures to 1.5 to 2̊C of warming. As the climate continues to change, ecological and legal transformations to facilitate biodiversity adaptation in the long-term will be

necessary.29

Transformational change involves ‘efforts that enable or facilitate the transition of

ecosystems to new functional states’.30 For example, removing sea defences can facilitate, among other effects, ecological changes to intertidal zones, reshaped coastlines and the creation of new coastal habitats.31 Transformation may include statutory protected area management plans accommodating or even requiring the creation of novel ecosystems within park boundaries to support biodiversity adaptation.32 _{Transformational approaches}

may also involve engineering a complete changeover in vegetation in an ecosystem to achieve a ‘more desirable’ rather than ‘less desirable’ alternate ecosystem state. For example, with repeated, catastrophic, climate-driven wildfires in alpine forests, land managers may be faced with a high likelihood of ecosystem collapse.33 _{Responses may}

include intervention to direct ecosystem transformation instead of collapse, for example, by introducing warm-adapted, non-alpine plant species from downslope to enhance the

27 _{Eg US National Marine Fisheries Service listed the (currently healthy) Bearded Seal (Erignathus barbatus}

nauticus) as a threatened species under the Endangered Species Act 1973, 16 USC § 1531 et seq (1973), on the basis that it will lose its habitat to climate change by the end of this century; a finding that was upheld on appeal in Alaska Oil & Gas Association v. Pritzker (9th _{Cir, 14-35806, 24/10/2016).}

28 _{Eg a decision to designate Polar Bear (Ursus maritimus) habitat as ‘critical habitat’ based primarily on}

climate change projections was similarly upheld, in Alaska Oil and Gas Ass’n v. Jewell, 815 F 3d 544, 551 (9th Cir. 2016).

29 _{Poiani, above n 15, 198-9, transformation may include changing the area of existing conservation projects,}

and reprioritising or even abandoning some focal species or ecosystems.

30 _{Stein et al, above n 11, 505; Park et al, above n 16, 119.} 31 _{Morecroft, above n 18, 548.}

32 _{For discussion of US climate adaptation and protected area management planning, see Fischman et al,}

above n 15.

33 _{Bowman, David MJS et al, ‘Abrupt fire regime change may cause landscape-wide loss of mature obligate}

seeder forests’ (2014) 20(3) Global Change Biology 1008; Enright, Neal J et al, ‘Interval squeeze: altered fire regimes and demographic responses interact to threaten woody species persistence as climate changes’ (2015) 13(5) Frontiers in Ecology and the Environment 265.

adaptive capacity of the area and its habitat value for climate-driven species

redistribution.34 Transforming conservation laws for adaptation may include shifting the focus of legislative and policy priorities from the traditional concept of threatened species to ‘climate-critical’ or highly interactive species as the target of species-specific

conservation;35 or from species altogether, to a focus on conserving ecosystem health and function regardless of its components.36 No biodiversity conservation legislation in Australia currently anticipates the potential for ecological transformation or provides guidance for decision-making processes that facilitate transformation in response to climate change.37

The adaptation modes available in any given scenario will depend on the extent of change that is being experienced by an ecological system.38 In this thesis, resisting change is contemplated for short term goals in some limited contexts but most recommendations relate to actively promoting incremental or transformational adaptation.