Re-Valuing the Ocean in Law: Exploiting the Panarchy Paradox of a Complex System Approach

Abstract

The United States controls more ocean territory than land territory, and it depends upon marine resources for fuel, transportation, food, and recreation, among other things. U.S. law and policy currently address marine resources on a resource-by-resource and often species-by-species basis, leading to valuations of the ocean’s parts rather than a more comprehensive appreciation for its multiple roles in supporting human well-being. While marine valuation is shifting to the ecosystem level as a result of the increasing importance of marine tourism, the development of ecosystem services valuation and its incorporation into natural resources damages, and adoption of ecosystem-based management, it remains very difficult to value the ocean as a complex system. Nevertheless, the attempt to do so becomes increasingly critical, because the entire ocean is changing pervasively in ways that threaten all the aspects of the ocean that humans already value, as well as services like oxygen production that humanity should value but generally does not. Unlike most single-issue ocean law scholarship, this Article steps back to argue that we need to re-value the ocean in law as a complex adaptive system. The failure to recognize our increasing vulnerability from the ocean’s complexly changing complex system leaves law fundamentally unable to cope with those changes. In contrast a broader perspective, such as that provided by the Planetary Boundaries Project, illuminates the increasing importance of governance measures that are both less intuitively obvious and less difficult to address than climate change, such as promoting resilience-enhancing marine food security and more effectively regulating nutrient pollution. Thus, re-valuing the ocean as a complex adaptive system empowers adaptation governance to exploit this panarchy paradox by pursuing immediately possible, politically palatable, and technologically achievable governance interventions into ocean management.