Environmental democracy and forest carbon (REDD+).

Author:Takacs, David
Position:Reducing emissions from deforestation and forest degradation - Introduction through V. Genuine Environmental Democracy: How Do We Know It When We See It? p. 71-102 - Author abstract
 
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  1. INTRODUCTION II. REDD+ III. PRINCIPLES OF ENVIRONMENTAL DEMOCRACY A. Introduction B. Where Do the Principles Come From ? C. The Principles D. FPIC: What Does it Mean? E. FPIC's Imprecise Legal Status: To Whom? F. FPIC's Imprecise Legal Status: When, to What, by Whom, Where? IV. THE PRAGMATIC CASE FOR ED RIGHTS IN REDD+ V. GENUINE ENVIRONMENTAL DEMOCRACY: HOW DO WE KNOW IT WHEN WE SEE IT? VI. CASE STUDIES FROM VIETNAM AND CAMBODIA: HOW ARE ED RIGHTS IMPLEMENTED IN REDD+ IN SITU? A. Vietnam B. Cambodia VII. ROADBLOCKS ON THE PATH TO GENUINE ENVIRONMENTAL DEMOCRACY IN REDD+ A. Process Is Expensive B. Process Is Impracticable C. There May Be Mismatches Between International, Domestic, and Local Law D. There May Be Mismatches in Goals of Project Actors E. There Will Be Mismatches in Capacity of Project Actors F. Environmental Democracy, Especially FPIC, May Be Impossible VIII. WAYS FORWARD TO REALIZING ENVIRONMENTAL DEMOCRACY IN REDD+ A. Weighing ED Against Imminent Threats to Life-Sustaining Forests B. Legal Pluralism and ED C. ED Skills Translate Into Broader Governance Skills, Necessary for Adaptation to Climate Change and to Broader Forest and Other Governance Issues D. Recognize that Legal Status and Requirements of ED Rights Are Likely to Expand E. "Consultation "Is Not Enough F. Use the UN's "Guiding Principles on Business and Human Rights" as a Template When Implementing REDD+ G. Earning and Maintaining a Social License to Operate H. Formulating a Community Protocol I. Ombudsperson Support for Informed Participation J. Access to Justice: The Oft-Overlooked ED Right K. Project Developers and Government Officials IX. CONCLUSION I. INTRODUCTION

    When making decisions about how vital environmental resources will (or will not) be developed, local citizens--who have close knowledge of surrounding land and resources, and have the most to gain or lose from these decisions--should be full and active partners. That is the central claim underlying the legal norms that comprise Environmental Democracy ("ED"), i.e., the right to participate in environmental decision-making; the right to access to information on environmental decisions; the right to redress and remedy when environmental rights are violated; and the right to Free Prior and Informed Consent (FPIC) when decisions are made that will affect vital resources and lands. (1) When governments or developers of environmental conservation and development programs fail to respect ED norms, they may not only violate international law; they may doom an environment-development project to failure, and worse, violate the human rights and even destroy the lives of local citizens.

    Investors are pouring billions of dollars into environment development programs known as REDD+ (Reducing Emissions from Deforestation and forest Degradation). (2) In REDD+, parties are paid to preserve forests that would otherwise be felled, or to plant forests where none presently exist. (3) The carbon stored in plants is then sold to international investors looking to offset their greenhouse gas emissions or to staunch deforestation for other reasons. REDD+ funding comes with significant strings attached for how forests can be used. (4) Because REDD+ is attracting so many billions of dollars from investors and because of its stunning potential to impact local communities--for better or for worse--it is a crucial strategic site for implementing and advancing ED rights.

    As a lawyer and a scholar, I see full, effective, informed participation as essential to fulfilling REDD+'s synergistic promise not only to preserve climate equilibrium and imperiled tropical forests, but also to equitably (re)distribute benefits from nations that have polluted the global atmospheric commons to those who will suffer most from that pollution. Local, meaningful, informed participation is the best means of warding off the negative impacts--both social and environmental--lurking in REDD+ schemes that do not fulfill ED norms.

    The twin threats of climate change and deforestation present a calamity of opportunity; herein I analyze how REDD+ responds to that opportunity. By examining how REDD+ schemes are (or are not) promoting environmental participatory democracy, I wish to show REDD+'s realized and unrealized potential as a model for natural resource law and policy. I see the principles of ED not merely as legally required out of fairness to those most affected by projects, but as pragmatically necessary for long-term sustainable resource management. ED provides equitable means to sustainable environmental and human rights enhancing ends. REDD+ is, and could increasingly be, contributing to local resilience not only through supporting the ecological matrix in which communities live, but through abetting the socioeconomic and institutional resilience required to weather the threats of climate change. I believe that all parties benefit most when local stakeholders are full and equal partners.

    This article asks: How are (or aren't) principles of ED being manifested in REDD+ in developing countries? After outlining the emerging legal norms of ED and explaining the fundaments of REDD+, I explain the importance of these ED norms for REDD+. I then compare how these norms should operate in REDD+ with how they are operating. I use case studies from Vietnam and Cambodia, where I conducted field work in December 2012, to suggest that even the best intentioned REDD+ schemes fall short of fulfilling ED requirements, likely to the detriment of all actors, including local people and the ecosystems that sustain them.

    If full-throated ED in REDD+ is difficult at best and impossible at worst, does that mean we should call for a halt to REDD+ and its potential synergistic benefits? I conclude it does not. Like other economic, social, and cultural human rights norms--and like democracy in any context--ED ideals are realized progressively and incrementally. As the ED principles move towards customary legal status--or as they are mandated by law or the standards used to certify a project--REDD+ is the most important laboratory to develop law in situ. It is "most important" because so much money and effort is currently being invested, because the harms are so grave when ED norms are not respected, and because the prospective, synergistic benefits are so great precisely when ED norms are fully fulfilled. REDD+ actors may promote environmental programs to improve democracy and promote democratic reforms to improve the environment, while fomenting ecological, social, and institutional adaptation to the coming depredations of climate change.

    I argue that the REDD+'s portended benefits justify (carefully) continuing. I conclude with pragmatic approaches towards fulfilling the legal exigencies of ED in REDD+ in a deeply equitable way.

  2. REDD+

    In REDD+, a local community, private developer, government entity, or individual landowner reforests degraded land or preserves a forest that would otherwise be cut down. (5) They may then sell the stored carbon for a contracted period of time to entities that want to offset their greenhouse gas (GHG) emissions (either because they are legally mandated to do so or they are voluntarily reducing their climate change footprint), or simply wants to foment forest preservation. (6) REDD+ may happen on a project-by-project basis, where a developer contracts with landowners to preserve or reforest a discrete area of land, and sells the carbon thus sequestered. Or, increasingly, REDD+ operates on a broader scale, i.e., a nation, state, or province uses REDD+ funding to reduce deforestation or promote reforestation in a wide geographic area, resulting in greater stored carbon than would have occurred without the funding. (7)

    Deforestation accounts for somewhere between 11 and 28% of GHG emissions. (8) Terrestrial plants absorb about a quarter of the C[O.sub.2] that humans emit. (9) REDD+ mitigates climate change if trees retain carbon that deforestation or forest degradation would otherwise release. Healthy forests help communities adapt to climate change through providing resilience by sustaining ecosystem services--including preventing erosion, increasing rainfall, buffering floods, cleansing drinking water, and harboring crop pollinators--and biodiversity crucial for human survival. (10) REDD+ investments may also promote socioeconomic climate change adaptation through new sources of income by providing, for example, direct payments for preserving forests, by teaching new forestry-related skills, (11) or by providing for more secure, formal land title. (12) REDD+ may further institutional adaptation as community leaders, landowners, and government officials develop and manage REDD+ projects and hone skills and institutions to negotiate effectively with project developers and government functionaries. (13)

    Because of its potentially enormous synergistic benefits, REDD+ has many disparate supporters. (14) National and subnational government officials in both the developed and developing world, environmental and social welfare NGOs, companies looking for GHG offsets, international financial institutions, the United Nations, and private citizens have pledged or spent over $5 billion dollars for REDD+. (15) But despite its promised potential, critics claim that REDD+ does not mitigate global climate change, and instead violates human rights, circumvents democracy, is methodologically suspect and unworkable in practice, and allows the already rich (mostly in the global North) to profit at the expense of the poor (in the global South) they are allegedly aiding. (16) At the same time, REDD+ exacts high opportunity costs, because nations and local people may be barred from using forests to generate profits (e.g. through logging) or to sustain local communities (e.g. through conversion to agricultural land or harvesting trees for building material.) (17)

    I have been among REDD+'s critics, analyzing how early...

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