From the Silo to the Landscape: The Role of Law in Landscape-scale Restoration of Coastal and Marine Ecosystems

Abstract

Internationally, we are in the midst of a shift from an environmental legal regime focussed solely on protection to one encompassing restoration. In the coastal wetland context, this move is especially needed due to the significant legacy of past losses. This article welcomes this shift, but advocates for a legal framework that embeds landscape-scale restoration from the outset, moving us from a siloed focus on single ecosystem services and projects. This argument is made by reference to learnings from the high level of fragmentation in the environmental protection space and by reference to the literature on ecological restoration and nature-based solutions. It will also use a recent example from Australia—the Blue Carbon methodology—to illustrate that momentum towards coastal restoration in legal frameworks is occurring, leaving us with a time-limited opportunity to ensure that this landscape-scale focus is embedded into restoration law before a siloed focus becomes entrenched.

1. Introduction

Coastal ecosystems, such as wetlands, are of critical importance to humanity, delivering a host of life-supporting ecosystem services. Mangroves, for example, provide essential nursery habitats for fish species, which in turn support the more than three billion people across the globe that rely on fish for nutrition, sustenance and livelihoods.¹ Coastal wetlands perform a coastal protection function through attenuating wave energy as it reaches the coast,² and are a highly effective, long-term³ and extremely stable carbon sink.⁴ They also assist with erosion and flood control, water filtration, and provide habitat for migratory species.⁵ What is more, coastal wetlands have significant cultural importance to many societies and groups, including to indigenous populations and traditional custodians of land.⁶

Whilst the critical importance of coastal wetlands is now well understood by the scientific community, these ecosystems have been subject to widespread degradation and loss, with between 30% and 50% of coastal wetland extent lost during the 20th century.⁷ The rate of loss has slowed in the past decade as scientific knowledge has increased,⁸ but coastal wetlands still remain threatened by processes, such as fishing, aquaculture, clearing and development, pollution and climate change.⁹ Combined with the legacy of past degradation and loss, this highlights an urgent need to prioritise and invest in robust coastal wetland restoration measures.¹⁰ This need for restoration of coastal wetlands reflects broader global initiatives, including the UN Decade on Ecosystem Restoration 2021–2030, which has the aim of preventing, halting and reversing the degradation of ecosystems worldwide,¹¹ and the recent Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework, which has set an ambitious target of ‘ensur[ing] that by 2030 at least 30 per cent of areas of degraded terrestrial, inland water, and coastal and marine ecosystems are under effective restoration, in order to enhance biodiversity and ecosystem functions and services, ecological integrity and connectivity’.¹²

Internationally, marine and coastal restoration has been slow to occur.¹³ This is certainly true in Australia, where coastal wetland restoration efforts have traditionally been hindered by pervasive financial¹⁴ and legal barriers,¹⁵ but a recent legal development has gone some way towards addressing these financial and legal impediments. The legislative passage of the Carbon Credits (Carbon Farming Initiative—Tidal Restoration of Blue Carbon Ecosystems) Methodology Determination 2022 (Cth)¹⁶ (‘Blue Carbon methodology’) has opened the door for some restoration projects in the coastal zone to receive carbon credits, providing the clear economic incentive to proponents that has been missing to date.¹⁷ In drafting the Blue Carbon methodology, significant legal barriers also had to be overcome,¹⁸ at least in the context of the particular project type, which is reintroduction of tidal flows to wetlands that have previously been drained or anthropogenically modified.

There is a distinct sense that we have reached a tipping point in the coastal and marine restoration space in Australia,¹⁹ and the Blue Carbon methodology may be the start of a groundswell of progress and large-scale implementation of projects. But with this potential comes a great risk. In the absence of an overarching legal objective or strategy for coastal restoration, projects may be focused on a single ecosystem component or service and the opportunity to achieve connected environmental outcomes across the landscape may be lost.²⁰

A key rationale for implementing restoration at a broad, landscape scale is simply that it is a biological necessity. Components of ecosystems are inextricably linked,²¹ and this is especially prominent in marine environments where the existence of processes like waves and currents lead to systems that are more ‘open’, with impacts occurring across greater spatial scales.²² Thus an action to restore one component of a marine environment may be ineffective unless it is considered in a broader environmental context; for example, a seagrass replanting project may be thwarted unless action is taken to reduce nutrient and sediment inputs into upstream waterways.²³ A concern levelled against a policy approach driven by blue carbon is that a siloed focus on carbon sequestration by a particular ecosystem may neglect the bigger picture of interconnectedness.²⁴

The central argument in this article is that there must be an enabling legal framework in place to move us out of a siloed focus on single ecosystems and services and guide considered and coordinated selection of restoration sites to ensure the best possible environmental outcomes are achieved across the landscape. This argument will be bolstered by two strands of reasoning. First, by drawing on the learnings from environmental law for protection and management of the coastal and marine environment. Several decades of progress in protecting and managing coastal wetlands has led to a complex and multi-layered set of legislation, policies and rules which deal with distinct aspects of coastal wetlands in a siloed and disconnected fashion,²⁵ both in Australia and across the globe.²⁶ This in turn can have negative impacts on the effectiveness of the legislative framework as a whole.²⁷ Section two of this article will analyse this issue in greater detail, and discuss how, in moving from a forward-looking protection focus to one incorporating backward-looking restoration, we can learn from the shortcomings of the protection sphere.

Second, it will argue that landscape-scale restoration is supported by the significant literature on ecological restoration. ‘Ecological restoration’ has been defined as ‘the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed’,²⁸ and it encompasses the pursuit of restoration goals at the landscape scale.²⁹ Section three will analyse the concept of ecological restoration and more recent landscape-scape framings such as Nature-based Solutions (NbS), to support an argument for landscape-scale restoration in the coastal wetland context. Importantly, this literature also provides some guidance as to how landscape-scale restoration objectives can become embedded into law.

Once the imperative for landscape-scale restoration has been established, section four will analyse Australia’s Blue Carbon methodology, and consider why a granular-detail focus on a single project type was necessary to resolve complex legal issues and start momentum in the coastal and marine restoration realm: a space where progress had previously been stalled. However, now that momentum has begun, the time is ripe for focus to move from the fine details to the big picture. Essentially, we must now emerge from the silo and look to the landscape as we move forward with large-scale coastal and marine restoration, and consider how the law can facilitate this.

2. Learning from the Protection and Management Realm—The Problem of the Silo

Traditionally, the focus of global environmental law and policy has been the protection and conservation of nature and ecosystems from harmful actions and processes, rather than active restoration or rehabilitation.³⁰ In this sense, the law has been forward-looking and focused on reducing the impacts of future threats rather than backwards-looking and concerned with how to make good the harm caused by actions which have occurred in the past.³¹ This is reflected in a review of laws and policies relevant to mangroves and coastal wetlands in Australia, undertaken in 2019–2020.³² This review identified almost 50 pieces of legislation and policy and categorised these according to whether the instrument focused on regulating development, conserving a resource, or setting aside an area for protection.³³ There were very few examples identified of law or policy with restoration as a central goal or activity. This has been confirmed in later empirical and desktop studies, which have identified major gaps in the current legislative framework in relation to facilitating restoration,³⁴ with proponents having to engage with approvals processes designed for the prevention of harmful future activities rather than remediating the negative impacts of past actions.³⁵ It is also a problem noted in the recent statutory review³⁶ of Australia’s flagship national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which concluded that ‘a fundamental shift is required – from a transaction-based approach to one that is centred on effective and adaptive planning’.³⁷

Whilst the focus of environmental law has been predominately forward-looking and protection focused, these regimes are by no means perfect. In fact, these protection-focused regimes have been plagued by issues surrounding coherency and integration. The review of laws and policies relevant to mangroves and coastal wetlands in Australia mentioned above highlighted a host of issues with the legislative regime, including: inconsistent definitions across a large number of laws and policies which leads to uncertainty about the application of laws; a siloed focus whereby different functions of ecosystems are protected under different regimes (eg fisheries and coastal protection fall under separate legislative regimes); and a lack of harmonisation across jurisdictions.³⁸ This reflects the position in the USA, with Kieter noting that ‘the legal standards governing [land] and resources are anything but coordinated; they represent a fragmented amalgam of federal, state, and local laws, often addressing single resources rather than the ecological complex itself’.³⁹ Similar issues have been noted in Southeast Asia, where mangrove use and conservation is governed by a complex array of laws, policies and agencies, including 22 different laws and 18 different agencies in Indonesia, and 20 different laws and 7 Ministries and Departments in Thailand.⁴⁰ In the UK and Wales, management of peatlands is highly fragmented with overlapping rules, responsibilities and no overarching objectives to guide decisions.⁴¹

Addressing different components or services offered by an ecosystem in a siloed manner can be problematic in that trade-offs may be made between different ecosystem services inadvertently, and without decision-makers appreciating the ramifications of their decision about a single ecosystem service for other ecosystem services.⁴² Trade-offs in this sense refer to a situation where an improvement in the provision of one ecosystem service occurs at the expense of a reduction in the provision of another.⁴³ For example, a decision to drain a wetland may have a benefit in increasing crop production and fish ponds, but it may result in a loss of biodiversity and groundwater recharge.⁴⁴ In turn, a decision to reintroduce tidal flow to a drained wetland may result in the loss of freshwater waterbird habitat.⁴⁵ Addressing trade-offs between various ecosystem services is by no means easy and may involve complex political decisions and choices regarding prioritisation, but the first step is at least ensuring these decisions are made at all. This can be facilitated by embedding greater policy coherence⁴⁶ in a legal framework, and by creating and implementing instruments and arrangements to connect siloed decision-making entities.⁴⁷

This complexity and fragmentation has been addressed in some jurisdictions; for example, in Indonesia, a presidential decree enshrined a national strategy for mangrove conservation and use which coordinated the various agencies involved.⁴⁸ A recent empirical study of coastal managers in Australia found significant consensus support for a similar approach in Australia, comprising better cohesion and integration across policy instruments.⁴⁹ Interestingly, this study revealed a sense that perhaps we are already ‘too far gone’ in Australia to return to the drawing board and create an entirely new legal framework for the protection of coastal wetlands, and the more feasible approach would be consolidated or interconnected law and policy instruments.⁵⁰

In the spirit of promoting interconnected approaches across law, we must be careful not to artificially separate protection, management and restoration. These are not dichotomous goals, and they are best pursued in tandem; research has demonstrated that both protection and restoration are critical to conservation strategies where the goal is optimising biodiversity conservation or provision of ecosystem services.⁵¹ Indeed, the 2020 UN Strategy underpinning the UN Decade on Ecosystem Restoration recognises protection and restoration as complementary goals, with all activities under the initiative to have a dual focus on protection as well as restoration.⁵² Restoration also should not be a substitute for continued efforts to preserve pristine areas of the environment, especially given restoration projects may not deliver ecosystem service benefits for some time.⁵³ However whilst protection remains as a critical goal of environmental law, the regime must shift from a protection-dominant paradigm towards one that prioritises restoration much more highly.⁵⁴ Richardson argues that the foundations for this are already present in law; indeed, the dictionary definition of ‘conservation’ is ‘preservation, protection or restoration of the natural environment’, therefore, international obligations to conserve the environment may implicitly import obligations to restore.⁵⁵

A move towards a legal regime encompassing restoration goals more completely is needed and welcomed, but it is imperative that governments and policymakers take note of the issues and problems that have occurred in the protection and conservation realm, and approach restoration with integration and cohesion as a goal from the outset, ensuring that initiatives move beyond a siloed focus on single ecosystem services and project types and consider landscape-scale interventions. Early developments in the restoration space support the need for a sharpened focus on this issue, as where restoration activities have occurred, they have generally been single-site projects chosen based on factors such as cost-effectiveness,⁵⁶ or delivered as part of an offset condition attached to a development approval.⁵⁷ To achieve major restoration goals, restoration activities must be strategically planned across the landscape.⁵⁸

To further bolster this argument, the next section will analyse some of the key theoretical framings that are permeating restoration literature and major global restoration efforts: Ecological Restoration, and NbS. Whilst these concepts have some key differences, as will be unpacked in section three, they share a common emphasis on the need for restoration to occur at the landscape-scale, rather than a fragmented approach with segmented efforts across individual projects and ecosystems.

3. Theoretical Framings and Possible Solutions for Landscape-Scale Restoration

There is no scarcity of possible theoretical underpinnings for a law and policy framework that enables cohesive coastal wetland restoration. Ounanian and others⁵⁹ discuss different discourses surrounding restoration and argue they can be categorised according to two primary factors: the degree of human intervention involved with a restoration activity, and whether the motivations for the restoration activity are eco-centric or anthropocentric. Another key issue is that of scale, as some theoretical framings are specifically aimed at restoring the environment at a landscape scale, whilst others may permit a more project-specific focus.⁶⁰ This section will consider two interrelated framings: ecological restoration and NbS. These two framings have been chosen as landscape-scale outcomes are a key feature of both. They also offer a mix of viewpoints on eco-centric and anthropocentric approaches to restoration.

The object of analysing these two framings is twofold. First, to demonstrate the strong support for the notion of landscape-scale restoration in the academic and scientific literature. Second, to consider the elements that might underpin a legal framework for a coordinated, landscape-scale approach to marine and coastal restoration.

3.1 Ecological Restoration

The literature on ecological restoration is particularly instructive to draw upon, as it is a concept that has gained significant traction in science, conservation and policy circles. The Society for Ecological Restoration (‘SER’)—a global organisation dedicated to advancing the field of ecological restoration—defines ecological restoration as ‘the process of assisting the recovery of an ecosystem that has been degraded, damaged or destroyed’.⁶¹ It distinguishes between ‘restoration’ as the activity undertaken, and ‘recovery’ as the outcome that is sought or achieved.⁶² To inform the practice of ecological restoration, SER produced a set of international principles and standards, including the ‘Eight Principles that underpin ecological restoration’.⁶³ These principles encompass stakeholder engagement and incorporation of all forms of knowledge, including indigenous knowledge (Principles 1 and 2); ensuring that ecological restoration is undertaken with reference to the native, pre-degradation ecosystem, but acknowledging that it may not be feasible to restore an ecosystem back to a historic state (Principle 3); facilitation of ecosystem recovery processes, which is measured against clear goals and objectives, and seeks the highest level of recovery attainable (Principles 4, 5 and 6); aiming for landscape-scale outcomes, as many ecological processes function at the landscape or watershed level, and small-scale projects may not succeed unless the broader landscape condition is addressed (Principle 7); and acknowledging that ecological restoration is part of a continuum of restorative activities, including reduction of actions that harm the environment (Principle 8).⁶⁴ The pursuit of landscape-scale restorative outcomes features as one of these key principles, and it is therefore inherent in SER’s conceptualisation of ecological restoration that restoration should be pursued across the landscape, whilst also integrating multiple perspectives and knowledge, underpinned by coherent goals.

The fact that the SER sets out eight comprehensive principles to describe ecological restoration suggests that it is a difficult concept to define with brevity. This is also reflected in the academic literature. There is no internationally recognised definition of ecological restoration,⁶⁵ and ecological restoration can perhaps be best described by reference to what it is not: environmental restoration. Richardson explains that environmental restoration is piecemeal in nature and ‘has a limited scope, such as rehabilitation of a former mining site, while [ecological restoration] ambitiously seeks systemic improvements to entire ecosystems and landscapes’.⁶⁶ The distinction articulated by Richardson essentially juxtaposes a narrow project focus against a landscape-scale focus, which reflects the emphasis on landscape-scale initiatives in the SER principles. The requirement to focus on the landscape as the relevant scale for restorative intervention is also echoed by Telesetsky in her call for restoration of the ‘ecoscape’, which is ‘a landscape or seascape that transcends political boundaries and, instead, creates boundaries based on sustaining ecological functions and on protecting human needs for living landscapes’ and a viable alternative to current piecemeal restoration efforts.⁶⁷ Palmer and Ruhl similarly emphasise that ecological restoration needs to be focussed on restoring a system and its dynamics and interactions, and also consider the broader ecological context. In particular, it must incorporate action to remove stressors, and restorative interventions must be located where the restored ecosystem can become self-sustaining eventually.⁶⁸ This emphasis on interconnectedness and the landscape as the scale of reference rather than a single site or project suggests a drive for cohesion which could answer some of the concerns regarding the current fragmentation present in environmental protection law.

Whilst ecological restoration has enormous conceptual promise, there are some major barriers to its implementation. Richardson notes that ecological restoration has unique governance challenges due to the spatial scale of projects, which in turn gives rise to a need for cooperation amongst multiple actors, and potentially high financial costs.⁶⁹ He also points to the temporal challenges inherent in ecological restoration, with human actors and decision-makers needing to redress harms that occurred prior to their lifetimes, and with benefits that will accrue and endure far beyond them.⁷⁰ Richardson is equally critical of current legal and planning law frameworks which, combined with tenure issues, are recognised as a barrier to ecological restoration.⁷¹ Similar challenges have been identified in other studies. Cortina-Segarra and others conducted a Delphi study of European experts, who identified a number of hurdles to ecological restoration, the top three being insufficient funding, conflicting interests amongst different stakeholders, and low political priority given to restoration.⁷² Legal and ownership issues were also identified as barriers, including the complexity of the legal framework, the lack of integrated land-use planning, and the difficulty in obtaining legal or property rights over a restoration site.⁷³ Perring and others reflect on progress in the ecological restoration realm and point to the need for it to be upscaled as current local-scale restoration initiatives are insufficient to achieve the degree of change required to achieve ecosystem sustainability.⁷⁴ Again, one of the articulated difficulties in doing this is the presence of legal and governance barriers.⁷⁵

Despite the complexities involved with restoring ecosystems across large spatial scales, there is also authority to suggest that ecological restoration can be facilitated through law reform. Cliquet and others urge States to consider the uptake of binding legal principles to restore, but caution against the use of quantitative targets, noting that ‘the existence of quantitative targets may unintentionally lead States to pursue strategies to meet short-term targets without fully considering the long-term consequences of certain investment strategies or the creation of unwanted ecological effects’.⁷⁶ Instead, Cliquet and others advocate for an international legal principle on restoration, which may facilitate States to go beyond simple quantitative targets, and oblige them to aim for the highest level of recovery possibly in ecosystems.⁷⁷ Similarly, Palmer and Ruhl advocate for a national law setting out minimum best practice and standards for ecological restoration.⁷⁸ Richardson calls for legal frameworks to be ‘clear, comprehensible and workable’. This involves addressing inconsistent terminology (‘remediate’, ‘repair’, ‘restore’, etc.), enshrining restoration goals in law, and equipping agencies and lawmakers with the legal tools to facilitate restoration.⁷⁹ This point perhaps circles us back to many of the concerns raised in section two about the legal framework for wetland protection, including a lack of consistent terminology and no widespread enshrinement of ecosystem services and values into legal frameworks.

In summary, ecological restoration offers considerable promise as a theoretical basis for coastal wetland restoration law, given its emphasis on landscape-level outcomes. The implementation of it though would require law reform, potentially at a high level, enshrining overarching goals for restoration across the landscape. Although this would require some significant reimagination within a legal system that is traditionally equipped to address individual harmful activities, this may be a necessarily to confront the scale of restoration needed to meet international objectives.

3.2 Integrating Ecological Restoration and Ecosystem Services—A Nature-based Solutions Approach

While ecological restoration is a useful theoretical framework for restoration law, it may also be an uneasy bedfellow in a regime that commenced with the Blue Carbon methodology and is therefore premised on the quantification of ecosystem services and natural capital. There exist mixed opinions in the literature regarding the co-existence of ecosystem services framings and ecological restoration. Telesetsky is critical of an ecosystem services approach to restoration, arguing that such an approach risks emphasising one particular service to the detriment of others.⁸⁰ If ecosystem services is the dominant framing, she suggests that ‘we will collectively end up with a patchwork of commodity policies rather than a workable conservation policy that focuses on the whole system rather than selective parts of the system’.⁸¹ Thus her central concern is the potential for siloed treatment of different services, to the detriment of a landscape-scale approach.

Other scholars see a more peaceful co-existence between ecological restoration and ecosystem services. Martin draws on a body of literature recognising ‘inherent and critical links between ecological restoration and ecosystem services’⁸² and advocates for an alternative definition of ecological restoration as ‘the process of assisting the recovery of a degraded, damaged, or destroyed ecosystem to reflect values regarded as inherent in the ecosystem and to provide goods and services that people value’.⁸³ This provides a flexible principle that recognises both inherent values and more conventional ecosystem services, and recognises both the ‘what’ and the ‘why’ of restoration.⁸⁴ Alexander and others also acknowledge the concerns relating to commodification of nature, but argue that the risks of failing to find common ground and restoration therefore not occurring at all are greater than the perceived risk of the commodification of nature.⁸⁵

Debate about quantifying nature versus respecting its inherent value is certainly nothing new,⁸⁶ and this article does not intend to attempt to resolve this tension inherent in the literature. Rather, it recognises that there is at least a sub-set of the literature that recognises a synergistic relationship between ecological restoration and ecosystem services framing. Furthermore, in moving forward with restoration law it is not necessarily essential that a legal framework coheres exclusively with one particular philosophical approach anyway; and indeed more recent theoretical concepts that build upon ecological restoration and draw upon ecosystem services framings may address Telesetsky’s concern of siloing.

An approach that aims to promote landscape-scale restoration and integrated treatment of ecosystem services is NbS. NbS emerged as a concept in 2008,⁸⁷ and is defined by the European Commission as mechanisms that ‘aim to help societies address a variety of environmental, social or economic challenges in sustainable ways’,⁸⁸ and by the IUCN as ‘actions to protect, sustainably manage and restore natural or modified ecosystems, which address societal challenges…while simultaneously providing human well-being and biodiversity benefits’.⁸⁹ These definitions are necessarily high-level and broad, but lack clarity as a result,⁹⁰ which has hampered its integration into law and policy.⁹¹ A recent systematic literature review undertaken of all literature on NbS sought to analyse definitions of the concept and provide greater conceptual clarity.⁹² To this end, the authors articulated the use of nature as a solution to global challenges as the core idea of the NbS concept, with NbS benefiting both natural ecosystems and the people that depend on them.⁹³ The emphasis on the ‘use of nature’ as a unifying feature across definitions of NbS indicates a service-focussed perspective, therefore perhaps having greater synergies with ecosystem services-type theoretical framings rather than more eco-centric, nature-focussed concepts. However, it is argued that NbS goes further than ecosystem services framings due to specifically integrating social factors such as human well-being.⁹⁴

The question then is what NbS as a conceptual framing offers in addition to existing concepts. In this respect, the focus on interventions at the landscape level has been identified as a novel aspect of NbS, distinguishing it from conceptually similar ideas.⁹⁵ The IUCN built upon its definition of NbS by articulating eight principles and importantly, Principle Six is that NbS must be carried out across the landscape.⁹⁶ This aspect is seen as critical, because any intervention or restoration project undertaken at a site-specific level may be undermined by threats occurring off-site.⁹⁷ It has also been argued that another novel aspect of NbS is its focus on coordination of efforts, addressing the interactions between ecological, social, legal, institutional and political systems.⁹⁸ This can occur through mainstreaming NbS into legal frameworks and moving away from siloed management of natural resources towards integrated management encompassing different levels and branches of government.⁹⁹ Addressing restoration at the landscape scale is particularly important for addressing trade-offs. Considering the complex interactions between components of nature allows for decisions to be made about which services to prioritise.¹⁰⁰ Whilst it certainly does not negate the existence of trade-offs, making them explicit at least means that decisions are made with regard to available information, as opposed to being made inadvertently.

Whilst purists may question the validity of linking the concept of ecological restoration to ecosystem services framings, NbS may offer a compromise that explicitly recognises the need to ensure individual ecosystem services are not considered in a siloed manner. Furthermore, it is also important to recognise that the instrumental versus intrinsic value of nature debate is not one that is black and white. Hahn and others propose a spectrum of ecosystem services comprised of six degrees based on the degree of commodification involved.¹⁰¹ Similarly, Eggermont and others offer a useful typology of NbS, comprised of three types: no/minimal intervention in ecosystems, but service delivery is a specific intent of protection (Type One), management approaches designed to improve the delivery of services (Type Two) and finally intrusive management interventions such as artificial ecosystems (Type Three).¹⁰² Whilst everyone will have their own personal view as to where intervention or commodification crosses an ethical line,¹⁰³ a policy approach that simply communicates the value of nature in relation to humans may find broader favour than one which commodifies and creates markets for ecosystem services.

Finally, other recent developments in the ecosystem services space demonstrate that the problem of siloing is a high priority. For example, there is work underway considering alternative approaches to Payments for Ecosystem Services (PES) schemes, such as common asset trusts, which facilitate the restoration of wetlands generally for the plethora of services they provide, rather than using single service-focussed approaches.¹⁰⁴ There is also current research examining how to integrate different environmental markets to increase funding and address problems of trade-offs,¹⁰⁵ and how to facilitate multi-habitat restoration across the landscape.¹⁰⁶ The central premise in this article is that coastal wetland restoration should be governed by a cohesive legal framework to prevent this problem of siloing, and these approaches can assist with this goal.

3.3 Reflections on Ecological Restoration and NbS

It is beyond the scope of this article to argue for an approach based on the intrinsic or instrumental value of nature, but it is sufficient to note that environmental markets seem to be the future policy direction of governments both in Australia and in many other countries. In the coastal wetland restoration space, the Australian experience with the Blue Carbon methodology is likely just the beginning of a trend of commodification of ecosystem services associated with coastal wetlands. The ecological restoration and NbS literature considered together offer great value in providing useful insights to be applied in this market-based setting to embed greater cohesion within legal frameworks to facilitate the pursuit of landscape-scale restoration. They also offer some potential solutions, both in terms of embedding high-level legal objectives for landscape-scale restoration into law and ensuring that there is coordinated management across different levels and branches of government. The following section will address the Blue Carbon methodology and the context in which it was developed in more detail, before circling back to these recommendations from the literature.

4. The Beginnings of Coastal Wetland Restoration in Australia—The Blue Carbon Methodology

4.1 Overview

In January 2022, the Australian Government passed a legislative instrument (Carbon Credits (Carbon Farming Initiative—Tidal Restoration of Blue Carbon Ecosystems) Methodology Determination 2022 (Cth)) (‘Blue Carbon methodology’) to enable a particular type of coastal wetland restoration project—reinstatement of tidal flow—to generate Australian Carbon Credit Units (‘ACCUs’) for sale or trade once the project is established and abatement is delivered. The Blue Carbon methodology is a watershed moment for coastal wetland restoration in Australia, as it is the first time a direct financial incentive has been available for a type of coastal restoration project. This is critically important as a lack of funding and financial incentives has been identified—along with legislative and governance barriers—as one of the biggest barriers to scaling-up coastal restoration in Australia.¹⁰⁷

The road to the Blue Carbon methodology was not a straightforward one. It is the product of a long selection, planning and co-design process that involved government, scientists, industry, academia and potential end-users¹⁰⁸ and required the design of a technical model for estimating the carbon abatement generated by a restoration project.¹⁰⁹ It also required the consideration and resolution of numerous complex legal issues, which will be discussed below.

First though, it is necessary to briefly consider the statutory context in which the Blue Carbon methodology is situated. The predominant legal response to climate change mitigation in Australia over the past decade has been the Emissions Reduction Fund (‘ERF’). The ERF legislative framework creates a scheme under which carbon abatement projects can be ‘accredited’ and are, therefore, eligible to ultimately be credited with ACCUs once abatement has been delivered. To be eligible to participate in the ERF, a proponent of a project must apply to a federal government agency called the Clean Energy Regulator (‘CER’) for the project to be registered as an ‘eligible offsets project’.¹¹⁰ Once an eligible offsets project has delivered carbon abatement, the ACCUs are issued,¹¹¹ and can either be sold to the government through the ERF reverse auction scheme—a pool of government funds used to purchase carbon abatement generated by accredited projects—or sold on the voluntary carbon market.¹¹²

There are limits on the type of projects that can be accredited under the ERF. The application for registration as an eligible offsets project must include legislatively prescribed matters including a description of the project, and must also identify the applicable methodology determination.¹¹³ If the CER is satisfied with an application, it may then declare a project to be an eligible offsets project and the declaration must, amongst other things, identify the applicable methodology determination.¹¹⁴ Thus methodology determinations are given particular significance in the ERF statutory scheme as a project cannot participate in the ERF unless it is covered by a methodology determination. Currently, there are 36 declared methodology determinations in force, covering projects and sectors including energy efficiency, carbon capture and storage, and abatement in the transport, mining, agriculture and vegetation sectors.¹¹⁵ Until 2022, there were no methodology determinations applicable to restoration in marine and coastal environments. The Blue Carbon methodology has therefore, as mentioned earlier, provided the first opportunity for a category of coastal restoration projects to attract a financial benefit.

4.2 A Siloed Focus

It must be acknowledged that the situation of restoration within the context of the ERF necessarily leads to a siloed focus on a single activity or project type, as well as on a single ecosystem service (carbon sequestration). This is a natural by-product of the way the ERF and the methodology framework are designed: methodologies are developed in relation to a single sector to allow for carbon abatement to be measured and calculated with a high level of rigour.

In the multi-year process to develop the Blue Carbon methodology, one of the key threshold decisions to be made was which particular type of coastal restoration activity to focus on for the methodology. There are many different types of coastal wetland restorative interventions that can generate abatement, including land-use change, avoided clearing and soil disturbance, offsite management to alter nutrient and sediment inputs, and reintroduction of tidal flow.¹¹⁶ Leading blue carbon scientists considered these activity types in detail and concluded that reintroduction of tidal flow offered the highest mean abatement intensity of organic carbon,¹¹⁷ and thus a decision was made to focus on this activity for the first Blue Carbon methodology. It was also determined that the carbon abatement generated by these activities could be accurately modelled,¹¹⁸ and the scientific team behind the Blue Carbon method designed a model called BlueCAM which allows abatement to be estimated with a high degree of accuracy from measurement of the area of blue carbon vegetation types that develop with tidal introduction.¹¹⁹ This prospect of accurate measurement was crucial, because in making a methodology determination the Minister must comply with the ‘offsets integrity standards’,¹²⁰ which are a set of principles set out in section 133 of the relevant legislation.¹²¹ The offsets integrity standards include a requirement that carbon abatement is measurable and verifiable,¹²² which BlueCAM allows.

There are also ample opportunities for projects under a reintroduction of tidal flow methodology. In Australia and globally, there is a long history of anthropogenic modifications to the floodplain to increase agricultural productivity.¹²³ This may include the construction of bund walls or tidal gates to remove saline hydrology from land and create areas of retained freshwater run-off. This creates high-quality cattle fodder for grazing during the dry season.¹²⁴ In turn, if these structures are removed, saline hydrology is restored and coastal wetlands may naturally re-establish.¹²⁵ This is the activity that the Blue Carbon methodology is concerned with.

4.3 Overcoming Legal Barriers to Coastal Wetland Restoration

Integrating marine and coastal restoration into the ERF involved the resolution of complex legal problems. Interestingly, despite the narrow focus on a single activity type within the ERF, these legal issues largely reflected the same ones discussed above in the discussion on ecological restoration, including land-use planning issues, and difficulties in obtaining legal rights. Coastal wetland ecosystems exist within the intertidal zone, where the boundary is often not well-defined, and a legal right to occupy marine land may not be clearly identifiable.¹²⁶ This is problematic because an ERF project application must include information demonstrating the proponent’s legal right to carry out the project.¹²⁷ Passive restoration activities (eg removal of stressors such as poor water quality or barriers which impede saline hydrology) may make providing additionality difficult, and permanence may be affected by sea-level rise and coastal squeeze.¹²⁸ Re-flooding land is inherently risky, with the potential for a restoration of tidal flow project to have ramifications beyond the intended property’s boundaries. If flooding occurs to a neighbouring property without consent, the owner of that property may have a legal claim against the entities responsible for both instigating and approving the project.¹²⁹

These legal issues were systematically resolved. It was determined that complex questions around boundaries and ownership of carbon credits could be resolved by contractual agreement and assignment of rights.¹³⁰ The potential for flooding of adjacent land could be ascertained through hydrological modelling, and the proponent must submit with their application to be declared an eligible offsets project maps that identify all ‘impacted land’.¹³¹ If the mapping identifies impacted land that is not part of the project area, then the proponent is required to obtain consent from the landholder of that other land.¹³² Additionality, permanence and no net loss can be assured by the proponent complying with an accompanying method guide.¹³³ There was some concern that, due to a legacy in Australia of illegally constructed coastal modifications,¹³⁴ removal of a structure may not be truly ‘additional’ as the removal could technically be compelled by law. Trying to uncover the historical approval pathway for a structure is deeply complex, and would require in-depth analysis of legal requirements across time at the local and state levels. This is because there was likely a time period during which no approval was required to construct a coastal modification, and it would be necessary to assess whether the structure was built during or after that time. To avoid the need for such complex historical analysis, the Blue Carbon methodology guide instead requires proponents to provide evidence that the tidal restriction mechanism was permitted under the relevant state and territory laws at the time of construction. This may be in the form of a relevant planning approval/s, or perhaps a statement from the administering government authority attesting that no approval was required at the time of construction.¹³⁵

The possibility of no net loss arises as the abatement generated by a project could be displaced if the proponent commences a project elsewhere on site that results in emissions. To this end, the proponent is required to include within their project's operations and maintenance plan information about any tidal restriction mechanism that the proponent intends to install as part of the project’s activities.¹³⁶ This plan must be prepared prior to the proponent applying for the project to be accredited as an eligible offsets project under the ERF, and will therefore inform the regulator’s decision whether to accredit the project.

Finally, permanence raises particularly challenging issues for vegetation projects as there is an ever-present possibility that re-emission of carbon could occur due to vegetation being deliberately or inadvertently disturbed. The ERF recognises the difficulty in securing carbon abatement in perpetuity and instead requires proponents to select a permanence period.A permanence period of 100 years or 25 years may be chosen, although the number of carbon credits will be discounted for 25-year projects.¹³⁷ The Blue Carbon method also imposes additional measures to achieve permanence, including prohibiting and restricting some activities on project land such as cropping, grazing, aquaculture and some vegetation removal.¹³⁸ The method guide suggests that a permanence plan may include actions the proponent will take to reduce the threat of carbon abatement being lost, such as fire hazard reduction and weed or feral animal management.¹³⁹

4.4 Reflections on the Blue Carbon Methodology

The importance of the Blue Carbon methodology cannot be understated as it represents the crucial first step towards incentivising and encouraging coastal wetland restoration in Australia. Given the sheer scale of past losses of coastal wetlands this enabling mechanism for coastal wetland restoration in Australia, as indeed globally, is so critically needed. The financial incentive offered by the Blue Carbon methodology aims to generate momentum in this restoration space and ideally start a flurry of activities to restore these past losses.

In this sense, the Blue Carbon methodology is both the culmination of a lengthy journey and also the beginning of another as governments consider further methodologies for carbon abatement activities in the coastal zone, and laws and policies to encourage coastal wetland restoration through other mechanisms such as biodiversity offsets. The Blue Carbon methodology is deliberately narrow in that it applies to a single activity type, and it also has a strong carbon focus due to its location within the ERF. The development of the methodology also required the resolution of complex scientific and legal issues that necessarily led to a focus on fine details rather than the big picture.

In the coming years, there is likely to be further development of methodologies for other coastal restoration activities, as well as other schemes to promote coastal wetland restoration, such as the recent Nature Repair Bill, which will underpin a biodiversity market.¹⁴⁰ But this gives rise to the need for a note of caution, as rapid deployment of legislation, policies and incentive schemes for coastal and marine restoration could steer us into a regime comprised of a fragmented and uncoordinated suite of restoration policies, plagued by the clear problems which have become entrenched in the management realm. In particular, a siloed focus on individual ecosystem services to the detriment of pursuing landscape-scale interventions.

Whilst the areas of analysis in the development of the Blue Carbon methodology were inherently small-scale and granular, the time has now come to shift focus to the bigger picture and think about how we can approach coastal and marine restoration with cohesion across the broader landscape. The literature discussed in section three on ecological restoration and NbS advocates for the embedding of landscape-scale restoration objectives in a legal framework, combined with mechanisms to promote coordination between various levels and agencies of governments. Such initiatives should be a key focus of future legal process in the coastal restoration space.

5. Conclusion: Emerging from the Silo and Looking towards the Landscape

The time is ripe for large-scale restoration of coastal wetlands in Australia and across the globe. In Australia, the legislative passage of the Blue Carbon methodology is a pivotal moment in coastal wetland restoration as it has provided a financial incentive for restoration, and confronted some of the pervasive legal and policy barriers to restoration. Its inception is both an end point and a starting point, and it will likely herald a suite of future developments in this area. However, the location of the Blue Carbon methodology within Australia’s ERF means that we have potentially set down a path whereby focus will be on single project types, and single ecosystem service delivery.

Whilst this article recognises and supports the urgent need for measures to facilitate and encourage the uptake of restoration projects, it argues that we must not lose sight of the bigger picture. Whilst implementing restoration into law will, like in the experience of the Blue Carbon methodology, require the resolution of granular legal details, we must consider how to implement an enabling legal framework that moves us beyond a siloed focus on single project types and ecosystem services towards a landscape-scale approach to restoration.

We do not need to look far for an example of what can happen with a siloed focus on individual ecosystem services. Across the globe, regimes for the forward-looking protection of coastal ecosystems reveal a fragmented farrago of legislation and policy, often leading to siloed treatment of different aspects of an ecosystem.¹⁴¹. The risk is that a similar situation will occur in the restoration space, with an explosion of legal instruments each targeted at a separate restoration intervention or ecosystem service, with no coordination, integration, and cohesion.

We have a unique but time-limited opportunity to learn from this, and move forward with intention, developing and implementing a cohesive legal framework to support restoration across the landscape. This article has offered some potential theoretical framings for this, as well as some solutions, drawing upon literature on ecological restoration and NbS. Advocates for ecological restoration call for national-scale laws setting out restoration targets or standards,¹⁴² as well as mechanisms to coordinate government agencies,¹⁴³ and this may be a useful starting point to focus efforts. Importantly, the barriers to implementing ecological restoration as identified in the literature are not necessarily alleviated when considering single activity or project types. In fact, the experience with the Blue Carbon methodology demonstrated the significant and difficult legal issues that had to be overcome to get the methodology to the implementation phase. Many of these legal issues actually echo those raised in the ecological restoration context, such as land-use planning barriers, and challenges in demonstrating a legal right to undertake projects.

It is hoped that this will be the start of a broader conversation on how we can move beyond the silo and look towards developing an integrated and cohesive framework for coastal wetland restoration focused on landscape-scale interventions, both in Australia and in other jurisdictions grappling with these challenges.

Acknowledgements

This article draws on research undertaken for a project on 'A model national legal framework for mangrove ecosystem services' (project DP190101185), for which I gratefully acknowledge the support of the Australian Research Council. It also draws on research undertaken for the Clean Energy Regulator as a consultancy project during the Blue Carbon methodology development. I also thank the anonymous referees for their insightful comments, and the journal editor for her insights and efficient edits. Any errors remain my own.

Footnotes