ENVIRONMENTAL RESTORATIVE JUSTICE: AN EMERGING PARADIGM IN ENVIRONMENTAL GOVERNANCE
– Prof. (Dr.) Sairam Bhat* & Vikas Gahlot**
Against the backdrop of continuously escalating global environmental crisis, the United Nations General Assembly has proclaimed the years 2021-2030 as the “Decade on Ecosystem Restoration” – a global clarion call that aims to “prevent, halt and reverse” the degradation of ecosystems worldwide.[1] The objectives of the UN Decade were further supported by the 15th Conference of Parties to the UN Convention on Biological Diversity, held in 2022, which culminated with the adoption of the Kunming-Montreal Global Biodiversity Framework (GBF).[2] The GBF articulates a set of 4 Goals and 23 global targets that are to be achieved by the year 2030 and beyond. These targets are aimed at safeguarding and ensuring sustainable utilization of biodiversity. One of the central concerns of the GBF is the urgent need to “halt and reverse nature loss”. In this regard, Target 2, which is one of the cornerstones of the GBF, obligates member countries to ensure that “at least 30%” of areas of degraded terrestrial, inland, and marine and coastal ecosystems are under effective restoration by 2030.[3] Target 2 is further complimented by Target 3, which prescribed that at least 30% of terrestrial and inland water areas, and of marine and coastal areas, especially areas of particular importance for biodiversity and ecosystem functions and services to be effectively conserved and managed through “ecologically representative, well-connected and equitably governed systems” by 2030.[4] These obligations are together referred to as the 30X30 target.[5]
Although there are scepticisms expressed regarding the 30X30 target,[6], regardless, countries all around the world have started to adopt a myriad set of legal, policy, governance, and management mechanisms to achieve these targets. These approaches encompass the allocation of financial resources specifically for ecological restoration initiatives,[7] initiation of pilot-scale restoration projects,[8] rewriting of environmental laws with a shifted focus on environmental restoration rather than penalization,[9] and comprehensive update of an overarching strategy for nature conservation[10] etc. The adoption of the Nature Restoration Law by the European Parliament (EU NRL) in 2024 is another significant and ambitious milestone in this direction. The EU NRL ambitiously enunciate comprehensive, legally binding restoration targets in order to facilitate the long-term recovery of degraded ecosystems across Europe. In Particular, Article 4 of the NRL obligates the member states to undertake restorative measures to restore 30% of ecosystems that are “not in good condition” (identified in Annex I) by 2030, 60% by 2040, and at least 90% by 2050.[11]
These global developments have re-catalyzed conversations, discourses, research, dialogue and academic scholarship regarding the concept of restorative justice in the field of environment. The progressively proliferating primary and secondary literature on the subject also signifies the shift in focus of the global community with regard to developing meaningful responses to environmental harm from a predominantly punitive action-oriented framework towards the adoption of a “restorative environmental justice approach”. Hence, it is important to understand the conceptual underpinning of this new approach and its practical challenges.
At the outset, it is imperative to recognize that there is a significant divergence between the application of restorative justice in environmental context and its application in other legal disciplines, such as criminal law, where the thrust is more upon reducing reoffending, helping victims to recover, and repairing the harm caused by crime.[12] However, in environmental context, this “pure” form of restorative justice may not always be possible[13] as environmental degradation is a complex and cumulative outcome of a plethora of socio-economic and political factors rather than merely a direct consequence of environmental law violation. For instance, environmental degradation may result from harmful development policies, and may not be an outcome of violation of any environmental norm. Hence, the contemporary trends in environmental restorative justice place an increasing emphasis on developing an effective ecological restoration legal framework. However, there are numerous challenges to this approach that need to be adequately addressed.
The first critical step in this direction would be the identification and demarcation of 30% of all areas for ecological services to achieve the goals of the Montreal Protocol. Although all kinds of degraded ecosystems can be restored due to nature’s inherent healing attribute, however, it needs to be emphasized that effective ecological restoration would require fertile and quality land that can support restoration activities. Such land is limited in quantity and is already being utilized by other sectors, such as agriculture, making it difficult to allocate adequate land for ecological restoration. For instance, in India, the provisions for compensatory afforestation mandate that in order to obtain permission (Forest Clearance) for the diversion of forest land for non-forest purposes such as mining or industry, the project proponent (i.e. the person or company behind a project) has to transfer equivalent area of non-forest land along with funds for undertaking afforestation activities as a compensation for the diverted forest land. However, the implementation of this provision has been significantly deficient, and as per the official statistics, only 27% of the total area receivable under the compensatory afforestation has actually been transferred to the Forest Department.[14]
Secondly, large-scale ecological restoration requires considerable financial resources, which brings another set of challenges. For instance, the mobilization and utilization of large-scale nature restoration funds either collected by the Government or spent by the Government will require compliance with rigorous standards of transparency and accountability. Further, ensuring the effective utilization of these funds is also paramount. In India, for instance, between 2019-20 to 2021-22 only 27% of funds collected through the Compensatory Afforestation Fund (CAF) have been utilized for their intended purpose compensatory afforestation.[15] Furthermore, if we place the responsibility for nature restoration on the project proponent, then liability for failure or non-compliance should also be clearly articulated.
Thirdly, whenever a law is formulated, providing precise definitions of key terms is one of the biggest hurdles. In the context of environmental restoration, the definition of the terms such as “restoration”, “degradation” and “degraded land” will play a pivotal role. These terms are undefined in the Global Biodiversity Framework, allowing for a broad spectrum of interpretations, including both narrow and wide interpretations. For instance, should the word “restoration” mean restoration of nature as per pre-industrialized standards or should it be sufficient to restore just to the level of “baseline report” (which documents the current state of nature) prepared at the stage of Environmental Impact Assessment process conducted by the project proponent or should it be understood as recovery of degraded/damaged land to the “highest level of condition attainable” as defined in the EU NRL or should it also cover recovery of lost biodiversity including extinct species and restoration of soil health a process that may span decades and even centuries. Additionally, the occurrence of events such as forest fires, cyclones, etc., may delay or impede the process of restoration in the long term; hence, should restoration also include long-term maintenance if the responsibility is placed on the project proponent? These are some of the critical questions that environmental restorative justice needs to address.
Lastly, it is imperative to underscore that effective environmental restorative justice should also be inclusive of local and Indigenous communities and activists who are at the frontline of environmental defence and are disproportionately impacted by environmental degradation.[16] Hence, effective environmental restorative justice must also incorporate provisions and mechanisms for their rehabilitation and security of livelihood through policies such as Joint Forest Management and the adoption of a decentralized approach that empowers local communities and recognises the value of their traditional knowledge.
To conclude, the adoption of a restorative justice approach to environmental protection and formulation of international covenants like the GBF and EU NRL marks a new era for the environmentalist movement, and it will be correct to anticipate that future environmental legislations and re-formulations of existing environmental laws will be along the lines of restorative justice approach and will increasingly focus on ecological restoration rather than punitive action. However, the content and scope of restoration may vary from country to country, with varied degrees of interpretations being adopted. Hence, moving forward it is imperative to engage in continuous research and dialogue and ensure that nature restoration policies and legal framework are coherent as well as effective and equitable.
The present blog is the academic version of a guest blog written by Prof. (Dr.) Sairam Bhat & Mr. Vikas Gahlot for the WHY-ME.ORG a London-based charity organisation that promotes and delivers restorative justice. The blog can be accessed at: https://why-me.org/2024/what-is-environmental-restorative-justice/
***
* Prof. (Dr.) Sairam Bhat, Professor of Law, National Law School of India University, Bengaluru.
** Vikas Gahlot, Senior Research Associate, National Law School of India University, Bengaluru.
[1] United Nations Decade on Ecosystem Restoration 2021-2030, https://www.decadeonrestoration.org/ (last visited Aug. 8, 2024).
[2] Convention on Biological Diversity, Kunming-Montreal Global Biodiversity Framework, United Nations Environment Programme (Dec. 19, 2022), https://www.unep.org/resources/kunming-montreal-global-biodiversity-framework
[3] Kunming-Montreal Global Biodiversity Framework, 2022, CBD/COP/DEC/15/4, Target 2.
[4] Id. Target 3.
[5] See Veronica Lo & Nicole Jong, The Global Biodiversity Framework’s “30X30” Target: Catchy Slogan or Effective Conservation Goal?, International Institute of Sustainable Development (Dec. 6, 2022), https://www.iisd.org/articles/insight/global-biodiversity-framework-30×30-target.
[6] Id.
[7] Centre Disburses Over Rs 1,000 Crore for Ecological Restoration and Wildlife Habitats, Outlook Planet (July 31, 2024), https://planet.outlookindia.com/news/centre-disburses-over-rs-1000-crore-for-ecological-restoration-and-wildlife-habitats-news-418248.
[8] Krishna Ray et al., Ecological Restoration at Pilot-Scale Employing Site-Specific Rationales for Small-Patch Degraded Mangroves in Indian Sundarbans, 14 Scientific Reports 12952 (2024), https://doi.org/10.1038/s41598-024-63281-8.
[9] See e.g., the Jan Vishwas (Amendment of Provisions) Act, 2023 (India); The Forest (Conservation) Amendment Act, 2023 (India); Australia Must Lead the World on Nature Restoration Through Ambitious Interpretation of International Law, The Conversation (Mar. 22, 2024), https://theconversation.com/australia-must-lead-the-world-on-nature-restoration-through-ambitious-interpretation-of-international-law-225903.
[10] Australia’s Strategy for Nature, Department of Climate Change, Energy, the Environment and Water, Government of Australia, https://www.dcceew.gov.au/environment/biodiversity/conservation/strategy (last visited Aug. 08, 2024).
[11] Proposal for a Regulation of the EuChapter 2 (Restoration Targets and Obligations) Article 4, https://eur-lex.europa.eu/resource.html?uri=cellar:f5586441-f5e1-11ec-b976-01aa75ed71a1.0001.02/DOC_1&format=PDF; See also European Parliament, Press Release, 20240223IPR18078, https://www.europarl.europa.eu/pdfs/news/expert/2024/2/press_release/20240223IPR18078/20240223IPR18078_en.pdf.
[12] Keeva Baxter, General Election 2024: What Does this mean for Restorative Justice?, Why Me (May 24, 2024), https://why-me.org/2024/general-election-2024-what-does-this-mean-for-restorative-justice/.
[13] Angus Nurse, Contemporary Perspectives on Environmental Enforcement, 66(4) International Journal of Offender Therapy and Comparative Criminology 327 (2022), https://doi.org/10.1177/0306624X20964037.
[14] https://cag.gov.in/uploads/download_audit_report/2013/Union_Compliance_Civil_Compensatory_Afforestation_21_2013_exe_sum.pdf.
[15] Bharath Kancharla, Only 27% of CAMPA Funds Utilized Between 2019-20 and 2021-22, FACTLY (Apr. 17, 2023), https://factly.in/data-only-27-of-campa-funds-utilized-between-2019-20-and-2021-22/.
[16] Brunilda Pali, Restorative Environmental Justice, European Forum for Restorative Justice (2020), https://www.euforumrj.org/sites/default/files/2020-05/EFRJ_Thematic_Brief_Restorative_Environmental_Justice.pdf (last visited Aug. 8, 2024).
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