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Abstract: If one compares environmental trading markets (ETMs), they all seem to share a basic feature--they all exchange commodities that are fungible. A CFC molecule, kilo of herring, or ton of sulfur dioxide seems much the same as another, both in terms of its identity and impact. It's trading apples for apples. Indeed ETMs must assume fungibility--that the things exchanged are sufficiently similar in ways important to the goals of environmental protection and resource allocation efficiency. Otherwise, there would be no assurance that exchanges were equivalent, that trading ensured environmental protection. This core assumption of fungibility, however, turns out to be less obvious and more problematic than first appears.
In this Article we develop a comprehensive analytical framework for evaluating ETMs from the perspective of commodity nonfungibility and explore the challenges that nonfungibilities (trading apples for oranges) present. We argue that in order for ETMs to deliver on their promise of environmental protection, they must satisfy three standards of adequacy. "Instrumental adequacy" involves the choice of "currency" with which we value the traded commodities and carry out the exchange. A perfect ETM currency would accurately reflect ecological and social values and allow us to compare the exchanged commodities regardless of differences across the three dimensions of nonfungibility--type, space, and time. But nonfungibilities are present in almost all ETMs, most strongly in those trading habitat, and the perfect currency becomes simply too expensive to mint given time, knowledge, and financial constraints. Thus ETMs usually resort to using a crude currency--such as counting acres of wetlands--that will surely fail to reflect important values being exchanged or avoid negative externalities.
"Procedural adequacy" refers to ETM trading constraints adopted to compensate for less-than-perfect currencies. For example, if counting acres of wetland fails to account for the services delivered by different types of wetlands, we can restrict the ETM to in-kind trades. Naturally, increasing trading restrictions of type, space, and time decreases the volume of trading. ETMs using crude currencies thus must balance the desire to control externalities with the need to keep the trading market robust, or "fat." Through a case study of the wetland mitigation banking ETM, we demonstrate the inverse relation between currency adequacy and market restriction--i.e., the pressure on ETMs to keep markets fat even when it means sloppy accounting.
Our discussion of "substantive adequacy" explores measures ETMs can take to police themselves when the combination of inadequate currencies and inadequate market procedures leaves the door open to trades that lead to loss of social welfare. We argue that the presence of significant nonfungibilities shifts the model of an ETM from a commodity market to a barter market, where discretion matters. We, therefore, call for use of ex post approval measures, in part to ensure meaningful valuation of the public goods exchanged and in part to counteract the agencies' and trading parties' inherent biases to encourage nonfungible trades. We further argue that it is inappropriate to use the conventional permitting process to carry out habitat trades and explore options for new institutional design of a "permit-plus" system that preserves the efficiency benefits of ETMs, while more clearly acknowledging the inherent costs in trading nonfungible commodities.
Abstract: In the decade since the Corps of Engineers (Corps) and Environmental Protection Agency (EPA) officially blessed wetland mitigation banking for purposes of satisfying mitigation requirements under Section 404 of the Clean Water Act (CWA), the practice has fueled an ongoing debate about its pros and cons. For the most part, however, the debate has focused on the relative advantages and disadvantages of banking programs in terms of administrative efficiency and ecological impact, with little attention being paid to the effects of wetland mitigation banking on people. This article presents the first comprehensive empirical study of the demographics of wetland mitigation banking, revealing what has long been suspected - that banking facilitates the redistribution of wetland resources from urban to rural areas, taking with them the important ecosystem service values wetlands provide to human communities.
After an overview of the economic service values wetlands provide, the structural biases inherent in the wetland mitigation banking program, and the lack of information about the effects of wetland banking in general, we present the results of an empirical study of 24 wetland mitigation banks in Florida accounting for over 95 percent of all bank activity. By comparing the demographic attributes of the area around each bank to the areas around the development projects that purchase mitigation bank credits to satisfy their mitigation requirements, we show that the loss of wetland resources is concentrated in urban areas, whereas the compensatory mitigation provided by wetland banks is concentrated in rural areas, and that the composition of the project area and bank area populations is significantly different. We examine the policy implications of this effect and suggest several steps that can be taken to better understand and respond to its impact on the distribution of ecosystem services associated with wetland resources.
Abstract: This Article examines the challenges global climate change presents for the Endangered Species Act (ESA) and its primary administrative agency, the U.S. Fish and Wildlife Service (FWS). Climate change will reshuffle ecological systems in ways that will defy prediction using existing knowledge and models, posing threats to species through primary and secondary ecological effects and the effects of human adaptation to climate change. Even assuming global-wide regulation of greenhouse gas emissions eventually yields a more stable climate variation regime, it will differ from the recent historical regime and many species will not survive the transition regardless of human interventions using the ESA. Yet many other species can survive with the assistance offered through a focused application of the ESA. The Article proposes a policy approach aimed toward that objective. Part I introduces the climate change challenge facing the FWS and explains why, after the Supreme Court's decision in Massachusetts v. EPA, the agency must develop a response. Part II examines the likely ecological consequences of climate change, for which we have no analog, and develops a typology of threats species will experience. Part III explores the pressures climate change will place on FWS policy decisions as increasingly more species face increasingly more serious imperilment as a result of climate change. Part IV methodically probes the relevant provisions of the ESA to identify the range of policy discretion the FWS has in making those decisions. Part V then lays out a plan for the FWS to use the ESA to build bridges for climate-threatened species across the climate change transition and into the no-analog future. Most significantly, I propose that the ESA not be used to regulate greenhouse gas emissions, but rather that it be focused on establishing protective measures for species that have a chance of surviving the climate change transition and establishing a viable population in the future climate regime. In particular, the ESA can help ensure that human adaptation to climate change does not prevent other species from adapting as well.
climate change, endangered species, agency discretion, ecosystems
Abstract: Farms are one of the last uncharted frontiers of environmental regulation in the United States. Despite the substantial environmental harms they cause-habitat loss and degradation, soil erosion and sedimentation, water resources depletion, soil and water salinization, agrochemical releases, animal wastes, nonpoint source water pollution, and air pollution-environmental law has given them a virtual license to do so. When combined, the active and passive safe harbors farms enjoy in most environmental laws amount to an anti-law that finds no rational basis given the magnitude of harms farms cause. This paper comprehensively documents the environmental harms farms cause and the safe harbors they enjoy in environmental law, then argues for a core federal statute that blends regulation, information, tax, incentive, and trading instruments to address several of the major sources of harm. It is shown that conventional prescriptive regulation simply will not effectively fit the geographic, economic, and political demographics of farms, but that the proposed blend of instruments could achieve significant gains in farms' environmental performance without excessive administrative or compliance complexities and costs.
Abstract: The history of environmental law provides as good an example as any other field in regulatory law of how successful prescriptive regulation has been at meeting public policy objectives, but how difficult it will be to extend that experience much farther into the future. For decades so-called "command and control" regulation has picked the low-hanging fruit - in environmental law, for example, it has gone after emissions from smokestacks and discharge pipes, disposal of wastes in landfills, transportation of hazardous chemicals, and similar discrete, easily-identified sources of environmental harm.
The future that lies ahead for most fields of regulation, however, is filled with problems of unwieldy dimensions and intractable causes. In environmental law, for example, the problems that are foremost to many observers include the invasion of non-native species into ecosystems, the depletion of estuarine resources by fertilizer runoff from countless agricultural operations hundreds to thousands of miles inland, the degradation of habitat from suburban "sprawl," and the evidence of climate change, which itself is irrefutable even if its causes are not. In this brand of environmental policy challenge, there are no discrete sources or clearly traced lines of causation. Rather, problems such as these exhibit the hallmark characteristics of complex adaptive systems. Their behavior emanates from a multitude of diverse, dispersed sources responding to co-evolving interactions, feedback loops, and nonlinear cause-and-effect properties. They are, to put it simply, excruciatingly hard for researchers to understand, and thus even harder for law to wrestle under control.
This kind of policy problem thus confounds the prescriptive regulation model, because there are no readily available targets for the prescriptions and, even worse, we have no idea what response the system would exhibit to any particular command. Even if legislatures armed them with unlimited powers, administrative agencies could not simply command away invasive species, or farm runoff, or new rooftops, or global climate change. There is almost universal agreement that problems of this sort demand new approaches to regulation. Agencies thus have experimented with many alternatives to prescriptive regulation, including market-based programs, information-based programs, negotiated project-specific licensing, ecosystem-scaled land management programs, multi-party collaborative planning efforts, and government-private quasi-partnerships.
To take advantage of their inherently adaptive qualities, however, these regulatory instruments must themselves be managed adaptively. It will do no good, in other words, to hand an agency a market-based program only to have the agency administer the program through centralized decision making. Nor is likely that the now dominant public land use theme of ecosystem management, which focuses on landscapes and ecosystem dynamics rather than discrete media or species, can successfully be implemented through decision making that relies on reductionist, linear models of how "parts" of ecosystems function. Not only must the instruments of regulation be transformed, therefore, but so too must the methods of regulation. Hence it is almost universally the case that advocates of regulatory innovations also advance the method of implementation known generally as adaptive management.
The voluminous literature that exists today to describe what adaptive management means traces its roots to Professor C.S. Holling's seminal work in the field, "Adaptive Environmental Assessment and Management." Although almost 30 years have passed since he and his colleagues first described the adaptive management methodology, no work on the topic since then has improved on their core theory, and far be it from me to try where so many others have failed. Its essence is an iterative, incremental decision-making process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly. It is, in other words, far more suited to the needs of future regulatory challenges than is prescriptive regulation.
On the one hand, nothing about this is startlingly new or unusual as a general means of decision making - businesses implement adaptive management all the time, or they perish. Ironically, however, the puzzle is whether administrative agencies can behave adaptively and survive. As a leading proponent of adaptive management once observed, agencies "have not often been rewarded for flexibility, openness, and their willingness to experiment, monitor, and adapt." The deterrents to these core attributes of adaptive management come from three fronts: legislatures, the public, and the courts. In short, in order for adaptive management to flourish in administrative agencies, legislatures must empower them to do it, interest groups must let them do it, and the courts must resist the temptation to second-guess when they do in fact do it. The track record of administrative law from the era of prescriptive regulation suggests that none of these three institutional constraints will yield easily. Quite simply, there is good reason to doubt whether regulation by adaptive management is possible without substantial change in the administrative law system.
In this Article I explore the concern just raised using the example of the Endangered Species Act's (ESA) Habitat Conservation Plan (HCP) program. Part I of this Article briefly provides the general background of interest - the potential for collision between adaptive management theory and administrative law institutions - to more firmly illustrate the nature of the problem. Part II then grounds the topic in a real-world context through the story of the HCP program. Although Congress appears to have hoped that the HCP program would promote adaptive management of imperiled species, its delegation of authority to FWS was an imprint of prescriptive regulation. Nevertheless, during the 1990s, while Congress was functionally inert on reform of the ESA despite much reform rhetoric, FWS essentially reinvented the program through administrative reform in the mold of adaptive management. Soon, however, citizen groups representing environmental protection interests responded with vociferous and litigious opposition to reform, ultimately bearing down on the agency's injection of "flexibility" in the program through repeated lawsuits challenging HCP permits. With few (but notable) exceptions, the courts were all too quick to pounce as well, stifling the agency's willingness to experiment. The result could be one of the tragedies of environmental and administrative law - today, the HCP program increasingly resembles a plain vanilla regulatory program, functional on that level but increasingly stripped of its once promising adaptive qualities. One can only hope this is not a harbinger for the future of adaptive management in general, for if it is, regulation by adaptive management will not be possible.
Abstract: What to do with the public trust doctrine? Environmental law scholars have been asking that question for going on 40 years, ever since Professor Joseph Sax surmised in his famous law journal article on the topic that of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. In this Article we briefly survey reasons why his vision has yet to be fulfilled, and we propose a way the public trust doctrine can be used to achieve a good measure of Sax's vision by working from within the doctrine, not by changing it.
Unlike the outpouring of academic proposals to liberate, expand, and modify the public trust doctrine to fulfill Sax's goals, for purposes of this Article we accept that the doctrine remains bound to its utilitarian origins. Rather than propose expanding the doctrine outside of its traditional boundaries, therefore, we use its core utilitarian purposes as the medium for protecting ecological resources. We employ the concepts of natural capital and ecosystem services to develop the ecological scope of the public trust doctrine from within. Our argument is straightforward: traditional public trust resources often contain natural capital supplying economically valuable ecosystem services to the public; the public's enjoyment of those values is appropriately treated as a use of the trust lands within the meaning of the public trust doctrine; therefore, the restrictions applicable under the public trust doctrine attach to the natural capital found on trust lands. Thus, rather than reshape the public trust doctrine to fit ecological goals, we propose reshaping the way ecological goals are framed to fit the public trust doctrine. This approach both advances Sax's vision and mitigates the concerns other scholars have expressed about stretching the public trust doctrine beyond its traditional scope.
Abstract: The legal system. It rolls easily off the tongues of lawyers like a single word - the legal system - as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life? Why do answers to these questions make the legal system seem so complex?
Would assembling a cogent, descriptively accurate theory of what makes the legal system complex help us to formulate more accurate and useful propositions about the legal system? I have to believe it would, and in my pursuit of such an explanation I have leaned heavily on the theory of complex adaptive systems - the study of systems comprised of a macroscopic, heterogeneous set of autonomous agents interacting and adapting in response to one another and to external environment inputs.
At its deepest level, complex adaptive systems theory as applied to the legal system presents a rich and dynamic field of study. It asks whether the targets of law are complex adaptive systems, and if so what that means for law's design. It asks whether law itself, however we define its boundaries, is also a complex adaptive system, and if so what that means for law's design. And it asks how law and its regulatory targets co-evolve and what that means for law's design.
This article orients those three questions within the context of complex adaptive systems theory. Part I provides a short primer on complex adaptive systems theory and suggests ways of usefully mapping it onto the legal system to expand our understanding of its behavior and properties. To make the case for the practical utility complex adaptive systems theory has for law, Part II explores a few of the major implications the theoretical foundation has for institutional and instrument design issues in law. I close by offering suggestions for next steps in the development of the theory of law's complexity.
Abstract: Over the past decade, there has been an explosion of interest in ecosystem services from scientists, economists, government officials, entrepreneurs, and the media. This article traces the development of the ecosystem services concept in law and policy. We prepared it in connection with a symposium held at Florida State University in April 2006. The presentations at the symposium, which then developed into the articles in a special issue of the Journal of Land Use and Environmental Law (volume 22, issue 2), approached the topic of ecosystem services and the law from two perspectives. One set of presentations focused on the law of specific natural resources, and the other set focused on different legal institutions as agents of integration of ecosystem services into law and policy. The resource presentations covered water and watershed resources, agricultural and rangeland resources, and coastal resources, while the institutional presentations addressed land use regulation, common law remedies, public law enforcement regimes, and second generation approaches in energy policy. This article provided the historical and conceptual anchor for the symposium.
Abstract: While not a high priority issue for most people, the public has long recognized the general importance of wetlands. Since President George H.W. Bush's campaign in 1988, successive administration have pledged to ensure there would be "no net loss" of wetlands. Despite these continuous presidential pledges to protect wetlands, in recent decades, as more and more people have moved to coastal and waterside properties, the economic benefits from developing wetlands (and political pressures on obstacles to development) have significantly increased. Seeking to mediate the conflict between no net loss of wetlands and development pressures, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have employed a range of policy instruments to slow and reverse wetlands conversion. Through the 1970s and 1980s, the EPA and the Corps relied on prescriptive regulation that discouraged development of wetlands and, even if a permit for wetland filling were granted, required on-site mitigation of destroyed wetlands to ensure no net loss. To defuse the growing political pressure for substantial change to this "404 Permit" process for developing wetlands, however, since the 1990s the agencies and state governments have promoted a market mechanism that seeks to ensure wetlands conservation at minimum economic and political cost. This instrument is known as wetlands mitigation banking (WMB). In WMB, a "bank" of wetlands habitat is created, restored, or preserved and then made available to developers of wetlands habitat who must "buy" habitat mitigation as a condition of government approval for development. This mechanism has also provided a model for endangered species protection and is in the process of being extended to other settings including watershed protection. Given the shift in emphasis from prescriptive regulation to trading, the government's longstanding pursuit of no net loss of wetlands provides a particularly useful case study for comparing the use of regulatory and market instruments for environmental protection. Indeed, WMB provides a rare example of robust trading outside the air pollution context and the trading habitat-based goods raises very different concerns than seen in trading mobile pollutants. Examining the evolution of WMB also forces us to think carefully over how to assess the "success" of a trading program. The traditional measure would likely be efficiency. But one must also consider effectiveness. In this regards, WMB poses two different types of failures - failure of instrument design (a "front-end" problem) and failure of implementation through monitoring and enforcement (a "back-end" problem). As many of the case studies in this book illustrate, performance of WMB depends critically both on institutional design and implementation. Another important measure of success concerns distributional equity. Who wins and who loses from banking? Such concerns are far more difficult to assess as good or bad policy in habitat trading than the traditional "hot spots" of pollutant trading programs. The chapter ends by drawing out key lessons for market-based approaches to watershed protection.
Wetlands, protection, environmental, law
Abstract: The substantive contours of the Endangered Species Act (ESA) have been largely worked out for quite some time. Starting in the mid-1990s, however, opponents of Fish and Wildlife Service and National Marine Fisheries Service decisions from both the industry and the environmental group corners realized that the methodological contours of the ESA were not nearly as settled as their substantive kin. Thus a frenzy of ESA methodology debate materialized in the late 1990s and has been going strong since then, reflecting the realization industry and environmental interests must have made - that how these methodological rules get worked out could revolutionize the ESA for decades to come. This Article explores the breadth and depth of the ensuing battle over ESA methodology. It begins by laying out a framework for evaluating decisionmaking methodologies. One basis on which we might choose how to go about making decisions is what level of confidence we wish decisions to enjoy. Also, how we frame the hypotheses to be tested will influence who favors which methodology. And methodology selection also has much to do with aversion to mistaken conclusions about whether the hypothesis is true.
Because methodology selection depends so much on how hypotheses are stated and the risk aversion bias of different interest groups, the Article next provides some background on the ESA and its numerous decisionmaking nodes - the points at which a choice among the three methodologies must be made using one or more of the frameworks discussed above. Three features of the ESA make its decisionmaking context particularly susceptible to fights over methodology. First, many decisions the agencies must make involve questions of biological science for which the available scientific database is either sparse or inconclusive. Second, these biological evaluations often arise in legal contexts that present a poor fit between science and policy. Finally, ESA decisions are characterized by the intense involvement of viciously combative interest groups willing to sue each other and the agencies with what appears to be gleeful abandon. Where the opportunity presents itself to shape ESA methodology, the opposed interest groups seem happy to litigate to a pitched battle in short order.
Next the Article frames and assesses the battle positions, which fall into three competing methodological camps I call the Professional Judgment Method, which is the default rule for the ESA, and its two postulated alternatives, the Scientific Method and the Precautionary Principle Method. These three methodologies incorporate starkly different approaches to management of risk relating to species conservation. Yet, close examination reveals neither of the postulated alternatives to the Professional Judgment Method finds support in the statutory framework of the ESA.
Nevertheless, there are times when the Scientific Method and the Precautionary Principle Method have a role to play under the ESA, sometimes even hand-in-hand. The challenge is to design a framework that both gives them a role and keeps them under control. The final section of the Article outlines a proposal to create a procedure under which FWS and NMFS could elect to adopt the precautionary principle in discrete decisionmaking instances based on a finding that a significant risk of error with severe consequences exists in connection with a decision not to extend protection to a species. Any interested person could then require the agency to obtain a rigorous scientific peer review of the basis for the agency's decision as means of checking against irrational precaution. Conversely, the proposal would also establish a process under which any interested person could petition a standing committee of scientists to decide whether require a scientific peer review upon finding that the agency may have failed to elect the precautionary principle when it should have under reasonable precautionary guidelines. To guard against overuse of either procedure, the results and findings of the peer review would be entitled to great deference in any judicial review proceeding of the agency's final decision. This would leave the Professional Judgment Method in its appropriate position as the default methodology for ESA decisions, but allow the Scientific Method and Precautionary Principle Method a role in difficult cases.
Abstract: During the Montana Constitutional Convention of 1889, John Wesley Powell, envisioning a landscape of watershed commonwealths, proposed that Montana adopt watersheds as the boundaries of its counties. The idea did not catch on. Over time, the power of local governments to regulate land use has grown immensely, but the misfit between their political boundaries and environmental policy problem sheds has persisted. As our understanding of ecosystem dynamics improves, however, natural resources management policy is gravitating, once again, to the watershed as an appropriate unit of governance. Many federal and state natural resource management initiatives have come on line in the past five years using watersheds as their primary focus. Yet, these new programs lack coherence and invest inadequate authority in watershed-based units of government. Representing perspectives from law, geography, economics, and anthropology, the authors propose the framework for a model state watershed management law. They conclude that the federal government is ill-equipped to take on the role of comprehensive watershed management czar as it has for pollution control and other environmental programs. Yet, local governments, even if organized around watershed boundaries, are unlikely to provide the platform for effective policy implementation. Rather, the authors propose a multi-tiered governance system linking state, regional, and local units of government through careful distribution of planning responsibilities and policy implementation authorities. Although for many states this framework would introduce a new layer of governance, its superior correspondence to the inescapable realities of ecosystem dynamics makes it worth serious consideration.
Abstract: In his majority opinion in Lucas v. South Carolina Coastal Council, Justice Scalia established the relevant background principles of state property law as the reference point for testing whether public regulation or private property goes so far as to constitute a categorical taking of property. He also confirmed, however, that those background principles evolve with new knowledge and changed circumstances. Over the past decade, the discipline of ecological economics has produced a burgeoning body of research illuminating the significant economic value that functioning ecosystems, acting as natural capital, supply humans in the form of direct and indirect ecosystem services, such as the capacity of coastal wetlands to mitigate storm surges. This article explores how these findings fit into the Lucas calculus. Based on work by Professor John Sprankling, the Article concludes that the background principles of property law have resisted integrating concepts like natural capital and ecosystem services into property doctrine. On the other hand, based on work by Professor Michael Blumm, the Article confirms that the amassing body of research about natural capital and ecosystem service values is precisely the kind of new knowledge that ought to transform those background principles. The Article concludes by discussing two recent cases in which courts have done exactly that - to integrate knowledge about natural capital and ecosystem service values in order to apply common law property doctrine in ways contrary to the established background principles. If this trend spreads, Lucas will indeed have opened a Pandora's box, with impacts on the common law it is difficult to imagine the Justice Scalia and majority had in mind.
Abstract: Common law nuisance doctrine has the reputation of having provided much of the strength and content of environmental law prior to the rise of federal statutory regimes in the 1970s, but since then has taken a back seat to regulatory law with respect to the environment. In particular, whereas nuisance doctrine has been criticized - many say too harshly - as being inadequate for dealing with the demands of modern pollution control, it has never been considered as having much at all to do with management of ecological concerns. Yet nuisance law evolves with changed circumstances and new knowledge. This article examines one such evolutionary force - new knowledge of the economic value of natural capital, such as coastal wetlands, and the ecosystem services that flow from it, such as mitigation of storm surges.
Part I of the Article outlines the prima facie case of an ecosystem services nuisance, showing that the conventional doctrine of private and public nuisance is aptly suited to engaging situations when one landowner manages his or her property so as to deprive another of economically valuable ecosystem services. Temporal, spatial, and cumulative effects may complicate such cases, but do not shift this form of injury outside the scope of nuisance. Part II examines the advantages and disadvantages of relying on nuisance law in this context. The primary advantages are the local focus of nuisance law and its information-producing effects, whereas the disadvantages normally associated with common law claims are not strongly operative. Part III argues that the ecosystem services nuisance theory of liability should be pursued alongside statutory regimes designed to manage natural capital and ecosystem services, so as to promote legitimacy of the statutory program and to help insulate it from regulatory takings claims. On the other hand, Part III also argues against a more expansive common law theory designed to encompass moral, ethical, and scientific harms to our sense of ecological integrity.
Abstract: This review of Daniel Farber's recent book Eco-pragmatism, in which he argues on behalf of taking more pragmatic approaches to the development of environmental policy, provides both the background necessary for appreciating Farber's union of ecosystem dynamics science and environmental pragmatism philosophy, and the basis for extending the new "eco-pragmatism" approach into natural resources conservation settings. Eco-pragmatism implies the intersection of two components-the eco, being the rich and developing field of ecosystem science and management, and the pragmatism, being the classical American pragmatist philosophy represented today in environmental settings through the emergence of environmental pragmatism philosophy. Unfortunately, Eco-pragmatism provides little background on either of these sources of eco-pragmatist approaches to environmental law. The review demonstrates that the science of ecology and the philosophy of environmental pragmatism do indeed make a fitting pair, and that Farber has provided the service of combining them in an approach that is adapted to modern environmental law and policy. The eco-pragmatist approach is different from either of the existing models for environmental decision making in they each relies on positivist foundations that portray environmental decisions as matters purely of economic efficiency (one extreme) or environmental preservation (the opposite extreme), whereas pragmatism looks to experience rather than dogma as its source of theoretical foundation. As Farber describes it, eco-pragmatism uses dynamical regulatory frameworks to blend economic efficiency and environmental protection in an approach that uses environmental goals to maintain a baseline of protection and economic analysis to place a check on overprotection. Unfortunately, Farber demonstrates the force of the eco-pragmatist approach only in the narrow setting of pollution and its public health consequences. The review demonstrates that eco-pragmatism also has value in the natural resource conservation setting, where emerging themes of biodiversity, ecosystem services, and adaptive management correspond to Farber's framework for environmental baseline, economic backstop, and dynamical regulation. Eco-pragmatism thus offers some deliverance from the seemingly endless warfare between the positivist ends that has burdened environmental policy in all its applications.
Abstract: One would think that the Endangered Species Act (ESA), the purpose of which is to conserve the ecosystems upon which endangered species depend, would employ the most advanced tools of ecosystem management. It does not. No serious account of the discipline of ecosystem management fails to position adaptive management techniques as the central approach for implementation of policy and decisions. Yet the ESA hardly mentions ecosystems, much less adaptive management. Rather, it is a classic example of what Professors Sidney Shapiro and Robert Glickstein have described as "front end" decision making that relies almost exclusively on ex ante analysis of decision impacts, whereas adaptive management requires a significant commitment to back end monitoring and adjustment of decision performance.
In this Article I explore the history and potential of adaptive management under the ESA. Over the past decade, administrative agencies responsible for implementing the ESA made significant strides toward seeking more back end approaches to the ESA, principally through what is known as the Habitat Conservation Plan (HCP) program. Yet there remains no integrated approach for adaptive management connecting the statute's information and planning programs (listing, critical habitat, and recovery plans) with the statute's regulatory programs (federal agency consultations, HCPs). In short, the statute does not create, and the agencies have not adopted, a comprehensive monitoring-adjustment feedback loop for the statute.
Rather, adaptive management remains, for all practical purposes, a limited, crisis-driven undertaking for the ESA. The HCP program, which showed early promise as a font of adaptive management implementation, has not lived up to that potential. Other programs within the statute, such as recovery planning and federal agency conservation planning, have been the victims of crabbed judicial and administrative interpretations that suck the life out of any adaptive management potential. Only in response to economic crisis, such as the recent (and continuing) saga of the Klamath River Basin, have Congress and the agencies supported a more aggressive and concerted adaptive management effort. Adaptive management, however, is supposed to avoid crisis, not mop up after it. Much work remains, therefore, before the ESA can be called a model of adaptive management.
Abstract: Agriculture has long been the Rubik's Cube of environmental policy. Although agriculture is a leading cause of pollution and other environmental harms, it has been resistant to regulation and remarkably successful at requiring payment to do the right thing. This article focuses on hints of movement in a new direction for agriculture, arising out of a merger between the age-old practice of paying farmers to do what is right, the fear of losing agricultural lands to suburban development, the rising fiscal burdens to state and local jurisdictions presented by new suburban development, and the new understanding that farms may hold tremendous untapped value as providers of ecosystem services to local, regional, and national communities.
Abstract: In recent years, ecologists and economists focusing on agriculture have forged a vision of agricultural lands as housing the natural capital capable of providing a stream of diverse good and services, including ecosystem services such as increased biodiversity, carbon sequestration, pollination, groundwater recharge, and improvement of water quality. This Article explores the emerging theme of farms as multifunctional land uses and suggests ways state and local governments can help ground it through flexible, efficient policy instruments. Although federal farm subsidy programs surely could be repositioned to better promote farm multifunctionality directly, the benefits of multifunctional agricultural production, compared to the conventional commodity production orientation, are primarily local. On this policy front, therefore, I envision federal policy providing support to state and local innovations rather than dominating the field as has been the case historically.
Part I examines the theme of farms as multifunctional production units as it is developing in ecological literature, then examines farm policy through four guiding principles: cross-cutting regulatory approaches; trade-offs; scaling regulatory authority to the problem; and expanding the use of decentralized strategies. Part II provides a general survey of the potential future scenarios of agricultural land uses and the tools state and local policy could use to help break the logjam of agriculture-environment policy by promoting the multifunctionality of farms. My focus is on exploring how state and local land use policy can play that role with respect to the production of ecosystem services from farms, which are, after all, profoundly local in character. Part III of the Article then uses two case studies from Florida to focus on two such tools in particular - payments for ecosystem services (PES) and the transferable development right (TDR). Although distinct in several ways, including fiscal impact, the role of regulation, and the medium through which provision of ecosystem services is rewarded, these two approaches share design issues being worked out in two newly-initiated programs in Florida, as summarized in Part III.
This Article makes the case that state and local policy, through PES, TDR, and similar techniques, can have a significant role to play in moving toward that vision. Federal farm policy should encourage and support such state and local initiatives, as it is in the national interest to maintain and enhance the natural capital that agricultural lands contain and can deliver locally across the landscape.
Abstract: Much has been written lately in legal scholarship about the role of science in policy and the role of policy in science - and perhaps in no field of law has more been said about them than environmental law. Yet asking the question, "What is the proper role of science in environmental policy?" is utterly misguided, in that it suggests that science operates on the other side of a Wall of Virtue from policy. In The Honest Broker, Roger Pielke, Jr. refers to this as the "linear model" of science in society, "whereby knowledge is created in the lab, packaged by scientific experts, and then handed off to politicians to do what they will." The end result of this vision of science, however, is that "science has come to be viewed as simply a resource for enhancing the ability of groups in society to bargain, negotiate, and compromise in pursuit of their special interests." But in many ways science has asked for this by demanding, as Einstein once put it, to be "left in peace." In contrast to this vision, Pielke outlines a "stakeholder model" in which scientists-as-experts work to understand the interests of different groups and the users of knowledge themselves have some role in its production. Environmental law, in particular, is well-suited to Pielke's stakeholder model. As a body of law it is defined by an intersection between policy and science that entangles the two so much so that it is impossible to unravel a "proper role" for either without considering the "proper role" of the other. Rather, using the Endangered Species Act (ESA) as an example, I contend that law and science co-evolve in a law-science process that is continually in flux and often under stress, with the relevant question being how to manage them in unison so the process leads to sensible decisions. The real question, therefore, is how best to design, build, and maintain it as a set of principles that foster and protect the law-science process of environmental agencies. This paper addresses that question in four stages. Part I briefly lays out the kind of law-science process trangressions that give rise to concern about the integrity of agency decision making. Part II introduces the ESA as a case study. Part III outlines some general principles for agency decision making processes designed to match the realities of the law-science process context. Part IV grounds those general principles with several maxims for the exercise of agency policy discretion by agency officials responsible for the law-science interface. The consequence of my approach is that, while Einstein's honest servants of the truth are not left in peace, they can remain committed to serving the truth as stakeholders in the agency's law-science process.
science and law, environmental law, environmental policy, endangered species
Abstract: Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, "agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed." Whether sprawl, climate change, or other daunting challenges, agencies are increasingly being told to address massive problems but without obvious tools or strategies to do so. In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship has assumed that massive problems are similar to one another, focusing instead on issues of jurisdiction and instrument choice - who should whittle and which knife they should use. In Part I we argue that the nature of the problem - the stick to be whittled - deserves equal attention. Some problems, because of the presence of certain types of cumulative effects from multiple sources, are significantly more difficult for agencies to manage. In Part II, using examples from the fields of environmental and land use law, we develop a model to identify the different attributes of cumulative effects that drive massive problems and how these can distort or undermine policy responses. In Part III we explore the three different strategies currently used in administrative law to manage massive problems, showing each to be deficient. In Part IV we draw from recent scholarship on Dynamic Federalism, New Governance, and Transgovernmental Network theories to propose an effective strategy for agencies to whittle away at massive problems through loosely-linked "weak ties" networks of federal, state, and local agencies. Part V illustrates how this can work in practice, using a case study of water pollution in the Gulf of Mexico. We explore both how such multi-scalar, multi-agency coordination networks function and the challenges they pose for administrative law. The Court's observation is quite correct - agencies, even when working together, can only whittle away at massive problems. This article takes the next step, creating models that explain the challenges posed by different types of massive problems and proposing strategies for engaging in more effective multi-agency coordination.
Abstract: Environmental law stands out among all fields of law as the one most concerned with the physical world around us. This is both its great appeal and its heavy burden. If environmental law has done anything in the epistemological sense, it has taught us how little we know about the physical world and, even more so, how little we know about how to improve the physical world through law. Alas, environmental law seems puny and confused compared to its intended beneficiary, and we have made many mistakes with it.
Lately, however, we hear much about science coming to the rescue of environmental law. The so-called sound science movement promises to improve decision making under environmental law by infusing the field with better and more practice of science. Of course, I am not about to argue against sound science, whatever it means, as it is one of those loaded terms that almost begs a fight. Who is for unsound science? Not I, but I am for a sound approach to sound science. Maybe sound science is good for environmental law, but we all know that too much of a good thing can be bad for you. So, I ask, could sound science, depending on how it is dosed out to environmental law, be counterproductive?
I am by no means the first to ask this question, or to suggest, as I do, that the answer is yes. But I wish to focus on the one component of sound science that is most often held out as the panacea by some and the problem by others - peer review. So, to be more precise, what I examine here is whether peer review, depending on how it is dosed out, could be counterproductive for environmental law.
The peer review question has not received as much discrete attention in environmental law literature, but it is truly the sleeping dog of the sound science movement. Understanding why requires some background on science and administrative law. The sound science movement, as its name suggests, advocates that environmental law decisions be made based principally on scientific information and conclusions that have been derived through the rigorous, unbiased practice of science. Science is generally regarded as a formalized system for gathering and evaluating information about the world in which prescribed methods of observation, communication, informed criticism, and response must be carefully followed. If these steps work for science, so goes the argument, they should work for environmental law as well.
One difficulty the sound science movement faces, however, is that many of the components of science are already firmly embedded in environmental law, not only through occasional specific references to science in environmental laws, but generally so through basic standards of administrative law prescribed under the Administrative Procedure Act (APA). Thus, just as a scientist would be accused of practicing unsound science in research if he or she declared that some set of relevant data was ignored or altered in reaching the research conclusion because the original data did not support the conclusion, an agency would also be chastised for doing the same in reaching the decision of any rulemaking or adjudication. That would be arbitrary and capricious behavior any court acting on judicial review of the decision would know to strike down as a violation of the APA. A court would not need sound science to get there. Thus, although the Endangered Species Act (ESA) ominously requires that many decisions called for under the statute be based on the best scientific data available, there is no evidence that this standard has made a bit of difference in terms of how agency decisions are examined in judicial review settings. Courts do not implement the ESA standard in ways that add anything beyond the demands that are already placed on the decision maker under the APA.
The sound science movement thus has a difficult time articulating exactly what it seeks when it comes to matters such as data quality, because many of the sound practices of science already are required of agencies in some degree or another. What is sound science adding? To be sure, one can envision requiring additional procedural steps agencies must take to assure the public about such matters as data quality - in essence, enforcing sound science by mandating more science - but it is simply not the case that the substantive demand for data quality is something the sound science movement brings new to the table for environmental law.
By contrast, peer review is a practice of science that is neither specifically required by most environmental laws nor generally required through administrative law doctrines. Peer review is generally described as a scientifically rigorous review and critique of a study's methods, results, and findings by others in the field with requisite training and expertise who are independent of the persons conducting the study. The sound science movement holds out peer review as an immutable principle of environmental decision making through the following syllogism:
Premise 1: The practice of sound science is an essential component of many decisions required by environmental law.
Premise 2: Peer review is an essential component of the practice of sound science.
Conclusion: Therefore, peer review is an essential component of those environmental law decisions for which sound science is an essential component.
On its surface this argument appears unassailable - if peer review is part of science, which it is, and science is part of environmental decision making in many instances, which it is, ought not peer review be a part of environmental decision making? But the answer is, not necessarily. What the argument fails to reveal is that, even with respect to environmental decisions for which sound science is an essential component, sound science is not the only essential component. This is because science, even sound science, usually does not lead to compelling answers about the questions posed in environmental law. Indeed, it frequently leads in no particular direction at all. Sound science could produce a mountain of relevant data of the highest quality and still provide no clues as to what to do for purposes of the environmental law decision. In at least those cases something else will be needed in order to reach decisions, such as sound judgment by agency decision makers, sound procedures for weighing alternatives, sound understanding of social and economic impacts, sound methods of providing public information and soliciting public views, and even sound politics.
There are, in other words, many ingredients to sound decision making in environmental law, with sound science being only one among them. But advocates of peer review are likely to observe that this argument alone does not refute the case on behalf of including peer review, for it does not demonstrate why peer review should ever be left out of the sound science package. Particularly because peer review is the one element of sound science not already incorporated at some level through environmental law, they may argue that it should be the last to be excluded from the mix.
Nevertheless, the complexity of environmental decision making will rarely allow us to practice all of the ingredients of decision making to their soundest degrees. Even where time and money would allow the possibility of engaging in any one of the ingredients to the highest standards, there will be cases in which attempting to do so for all at the same time would pose conflicting constraints between the respective ingredients. For example, at some point the quest for more relevant and reliable data may add so much time onto a decision making process, such as the decision whether a species is endangered, that the effectiveness of the decision is impeded - what a hollow victory for sound science it would be to spend so much time ensuring the reliability of the data proving the species is endangered that the species is already extinct by the time the decision to declare it endangered is made. Adding time and budget constraints to the picture amplifies the prospect and potential intensity of these conflicting constraints, requiring that we make trade-offs between the components of decision making in order to get the job of decision making done. Sound decision making, in other words, may require that we practice all of the decision making components, including sound science, at, say, only 80 percent of their respective soundest levels.
Taking this phenomenon of conflicting constraints to heart, the central thesis of this Article is that, of all the components of sound science, peer review presents one of the highest potentials for triggering conflicting constraints with other components of sound decision making. Using the Endangered Species Act as a case study, in Part II of the Article I describe the three conflicts unrestrained doses of peer review pose for environmental decision making. First, because its advocates regularly overstate what peer review will accomplish for environmental law decision making, mandating it across the board raises unrealistic expectations of the quality of agency decisions and weakens the position of other important components of decision making. Second, inflexibly mandating rigorous peer review adds substantial demands on agency resources, potentially draining resources from other decision making components and, in many cases, impeding decision making altogether. Finally, peer review is subject to abuse if it is adopted in ways that allow agencies to manipulate the process and thereby rig outcomes so as to justify agency decisions that would not withstand legitimate peer scrutiny.
Peer review, in other words, can be prescribed at overdose levels even though it is an essential component of sound science. In Part III of the Article I then suggest two ways peer review could be incorporated into environmental laws in ways that retain its value while minimizing its potential adverse effects. One approach is to identify criteria which, when present, suggest that a particular decision could benefit from rigorous peer review, with the idea being that the criteria would screen out most cases to produce a limited set of instances justifying substantial expenditure of resources for peer review. Peer review in these cases would be rigorous - the soundest attainable. Another approach is to develop an independent peer review swat team that would conduct random, less intensive peer reviews of agency decisions, with the idea being to derive much of the decision making quality incentives peer review can produce without suffocating overall agency practice. These uses of peer review substantially reduce the potential for conflicting constraints while still allowing environmental law to reap most of its benefit. More potent doses of peer review, I contend, offer little incremental benefit but risk significant adverse effects.
Arguing against broad use of peer review in environmental law invites accusations of trying to hide the flaws of agency practice in the shadow of agency expertise. Peer review is the light that will expose those flaws, its advocates contend. But while that is indeed the purpose of peer review in science, I question whether those who advocate it unyieldingly in environmental law really have that purpose in mind. The optimal use of peer review in environmental law, I contend, is not all the way all of the time, but at the right dose at the right time. The sound use of sound science demands nothing less than a careful approach to writing that prescription.
Abstract: Derived from funds of natural capital, ecosystem services contribute greatly to human welfare, yet are rarely traded in markets. Most supporting (e.g., soil formation) and regulating (e.g., water purification, pest regulation) ecosystem services, and some cultural (e.g., aesthetic enrichment) and provisioning (e.g., capture fisheries, fuel wood) ecosystem services are declining because of a complex social trap, the "tragedy of ecosystem services," which results in part from the overconsumption of common-pool resources. Additionally, current economic incentives encourage the development of funds of natural capital on private lands for marketable commodities at the expense of ecosystem services that benefit the public. Such ecosystem services are therefore underprovided. Most critically, property law reinforces these market failures by creating incentives to convert funds of natural capital into marketable goods and by assigning no property rights to ecosystem service benefits. Although there is no one pathway out of this tragedy of ecosystem services, potentially effective remedies lie in the evolution of the common law of property, in the reform of economic incentives, and in the development of ecosystem service districts.
common law of property, ecosystem services, market failure, natural capital, tragedy of the commons
Abstract: On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into the mitigation decision-making standards, requiring that "compensatory mitigation...should be located where it is most likely to successfully replace lost...services." Easily overlooked in the in the 210-page Federal Register document, this is a potentially significant development, but it will be unlikely to gain policy traction without substantial research into the development of efficient and reliable wetland ecosystem service assessment methods. To help orient such research efforts, this article provides: (1) background on the compensatory mitigation program and ecosystem services prior to promulgation of the new rule; (2) an overview of how the new rule integrates ecosystem service analysis into compensatory mitigation decisions; and (3) suggestions for a research agenda to support implementation of that feature of the rule.
Abstract: The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those who contend that peer review will politicize and burden agency activities. While peer review is fast becoming an integral and controversial part of agency behavior, it has received remarkably little scholarly attention. This article presents a comprehensive and current examination of peer review and is supported by new empirical data. To help sharpen our analysis, we conducted a nationwide survey of environmental law practitioners - lawyers who regularly practice on behalf of or before agencies with substantial regulatory missions. Most advocates of regulatory peer review argue that agencies regularly overstate the extent of scientific support for their policy decisions and that peer review will help correct that problem. Its critics contend it will unduly slow down agency decision-making. Our survey results suggest that those who actually practice regulatory law believe both of those propositions are likely. The challenge, therefore, is how to derive the benefits of regulatory peer review while minimizing its costs. Based on our survey, our evaluation of research from a wide variety of fields, and our own experience, which includes co-author J.B. Ruhl's tenure as the lawyer on a National Academy of Sciences committee that conducted the first high-profile peer review under the Endangered Species Act, we believe that peer review can assist the transparency and legitimacy of agency decisions by sharpening the line between scientific support and policy judgment in agency decision-making. Yet neither we nor anyone else who has entered the debate can say whether this benefit outweighs the costs that would result from adding such a procedure to agency processes, for the simple reason that nobody has produced robust empirical evidence to answer three basic questions - do agencies regularly overstate the scientific support for their decisions; if so, does this practice make a difference in terms of the policy merits of their decisions; and if so, does regulatory peer review provide a cost-effective means of correcting the practice? This gap in empirical data points to our proposed solution. We argue that regulatory peer review should take advantage of another practice of science - random sampling - in order to serve a diagnostic function in addition to its quality improvement function. By applying rigorous peer review to the science component of a small number of selected regulatory decisions, regulatory peer review could (a) help in defining the scope of the problem of agency overstatement of scientific support and (b) induce agencies to pay more attention to clearly articulating where science ends and policy judgment begins in the justification of their decisions. We provide the details of the proposal in the closing section of the manuscript.
regulation; environmental law; administrative law; peer review
Abstract: The geographic footprint of cities - the space they occupy - is relatively small in comparison to their ecological footprint measured in terms of impact on the sustainability of resources situated mostly outside of the urban realm. Ironically, the Endangered Species Act (ESA), though widely regarded as one of the most powerful environmental laws, has been and continues to be administered with respect to urbanized land masses primarily with the objective of managing their geographic footprints. This Article uses the example of "green construction" techniques to explore this disconnect between the macro-scale contribution of cities' ecological footprints to species endangerment and the micro-scale orientation of ESA law and policy toward cities' geographic footprints. The movement toward codifying standards for green construction is less concerned with geographic footprints than with ecological footprints, and widespread adoption of green construction codes thus could significantly improve the condition of imperiled species. So why is the ESA not being used to require or facilitate green construction techniques? I argue that one reason is the statute's harm-preventing focus, which does not fit well with the benefit-providing emphasis of green construction. Also, I argue that the ESA is ineffective at preventing harms that are the result of complex, large-scale, indirect causal mechanisms, which largely is the nature of cities' ecological footprints. Nevertheless, the Article identifies ways in which the ESA can be used directly and indirectly to support green construction and thereby help mitigate the ecological footprints of cities.
Abstract: The disconnect between adaptive management in practice and adaptive management in law is quite palpable. Today's practitioner of natural resources law is bombarded with adaptive management. It is firmly entrenched in natural resource management agency practice from headquarters to the field level. It shows up in land management plans, resource development permits, and agency guidance documents. Yet, it appears almost nowhere as codified statutory and regulatory text, and it is dealt with significantly in only a handful of judicial opinions. Agencies can practice adaptive management because their organic statutes are sufficiently vague to allow it, but few statutes mention adaptive management and even fewer require it. No other principle of natural resources management has so deeply permeated the practice on the basis of so little mention in the law. Is this because adaptive management is both inevitable for the practice of natural resources management while being impossible under existing procedural conventions of natural resources law? This chapter explores that paradox and provides a practical overview of adaptive management for natural resources lawyers. The first section describes the origins of adaptive management theory and examines the difficult time natural resources policy has had in translating the theory into statutory and regulatory text. The next section examines applications of adaptive management in three contexts: (1) environmental assessment processes; (2) regulation of private resources; and (3) public lands and resources management. The final two sections survey some of the implementation concerns and difficulties that adaptive management has generated thus far in its brief history and review how adaptive management has fared in the courts.
Abstract: The Endangered Species Act (ESA) has long been the workhorse of species protection in contexts for which a species-specific approach can effectively be employed to address discrete human-induced threats that have straightforward causal connections to the decline of a species, such as clearing of occupied habitat for development or damming of a river. Its resounding success there, however, has led to the misperception that it can duplicate that record anywhere and for any reason a species is at risk. Yet is the statute adaptable to the sprawling, sometimes global phenomena that are wearing down our environmental fabric on landscape scales through complex causal mechanisms? For example, can the ESA effectively be used to combat climate change by regulating greenhouse gas emissions, to combat the impacts of urbanization by mandating green buildings, or to mitigate ecological degradation by demanding that resource users take into account the values of natural capital and ecosystem services? This Article suggests that it would be unwise to push the ESA in that direction, but that the ESA nonetheless has a supporting role to play in the development of policies designed to address those problems. In particular, the ESA should be focused toward consolidating its core power to arrest the conversion of intact habitat to urban land uses, and from there it should be used to leverage its habitat protection function to promote policies responding to climate change, urban impacts, ecological degradation, and other ecological problems characterized by complex, large-scale, indirect causal mechanisms.
Abstract: This article suggests ways in which the common law can integrate concepts of ecosystem services to fulfill pragmatic objectives of common law doctrine. Rather than requiring a radical departure from traditional common law doctrine as is often proposed in environmental literature on the common law, ecosystem services can fold seamlessly into existing common law principles as a source of new knowledge and changed circumstances.
Abstract: This article examines the interstate water controversy between Florida, Georgia, and Alabama regarding allocation of water in the Apalachicola-Chattahoochee-Flint River Basin (ACF). The three states have been unable after 20 years of negotiation to resolve conflicts between urbanization in Atlanta, commercial uses in Alabama, and ecological protection in Florida. This article proposes that, were the states to seek apportionment of water by the Supreme Court under the Court's doctrine of equitable apportionment, the ecosystem services flowing within the ACF should be an integral allocation factor in deciding the flow regime Georgia and Alabama must ensure enters the Florida portion of the ACF.
Abstract: The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.
The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.
This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.
sustainable governance, coasts and estuaries, wateshed managment, adaptive management, public trust doctrine, polluter pays, precautionary principle
Abstract: This article takes lessons learned from western states' water conflicts and applies them to eastern contexts as exemplified by the dispute between Florida and Georgia over water allocation in the ACF River basin.
Abstract: This article is the second in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first installment (in the Duke Law Journal), this work develops an evolutionary theory of legal systems as CAS. It suggests that long-term fitness of the legal system will require use of innovative, adaptive legal institutions and instruments.
Abstract: This article explores sustainable development and environmental justice as potentially conflicting policy goals. Sustainable development includes equity as one of its five dimensions (in addition to environment, economy, time, and space), whereas environmental justice focuses principally on equity. Over time there is likely to be an increasing number of contexts in which sustainability-based policy solutions do not satisfy environmental justice advocates.
Abstract: This article uses a hypothetical future based on Lon Fullers classic Speluncean Explorers work to construct and contrast different perspectives on environmental law and policy: cost-benefit analysis; free market environmentalism; precautionary principles; sustainability; environmental justice; property rights; and deep ecology.
Abstract: This article argues that Section 404 of the Clean Water Act provides ample statutory authority for the Corps of Engineers and EPA to integrate ecosystem service values and impacts into wetlands impact and mitigation decisions.
Abstract: This article describes and evaluates the habitat conservation banking program the Clinton Administration conceived and the Bush Administration adopted under the Endangered Species Act.
Abstract: Second in my series of articles on farming and environmental policy, this article examines farmland stewardship rhetoric in light of the reality of extensive agricultural exemptions from environmental regulation.
Abstract: This article is the first in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It builds the basic model of CAS and maps it onto legal systems, offering some suggestions for what it means in terms of legal institution and instrument design.
Abstract: This article uses my work on complex adaptive systems to think about how litigation and mediation differ in terms of adaptive qualities, suggesting that mediation is indeed a more adaptive mode of dispute resolution in certain contexts.
Abstract: The Endangered Species Act permits land development induced take of protected species on the conditions that the take is not the purpose for the development project, and that certain measures are implemented to minimize harm to the species. One form of incidental take authorization in the Endangered Species Act is the section 10 habitat conservation plan (HCP) permit program. Section 10 of the Endangered Species Act specifically provides for the permitting of incidental takes occurring in land development projects not carried out, funded, or authorized by the federal government. With the increasing attention to private lands as critical habitat for endangered species, this permit program has become important. Relatively little has been written in the way of guidance for land development attorneys on how to navigate the HCP permit process. This Article seeks to fill that gap so that all sides can participate in a more efficient process, one that promotes both development and sustainable conservation. This Article examines the HCP permit process from the perspective of an attorney whose client wishes to develop a moderately-sized parcel of land, the development of which may adversely affect an endangered species.
The Article begins by exploring the factors used to determine whether an HCP permit is necessary for the project. Next, the Article explains how to obtain the permit once its necessity has been determined. Finally, the Article discusses methods to ensure the client's long-term compliance with the permit. Resolution of these three fundamental issues depends in differing degrees upon the black letter law of the HCP program, written and unwritten guidance and policy, other sections of the Endangered Species Act and other laws, as well as varying interpretations and implementations of the applicable law. The author concludes that despite disagreement over whether the HCP program can truly work effectively toward both real estate development and species conservation, those who understand how the Endangered Species Act works in practice are better situated to contribute to those dual ends.
Abstract: This article is the fourth in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It applies the model built in the three prior installments (in the Duke, Vanderbilt, and UC-Davis law reviews) to the specific context of environmental law. The work describes the subject matter of environmental law as a CAS and explains why environmental law thus must "think like a complex adaptive system" in order to accomplish its objectives.
Abstract: One of the mysteries of environmental policy in the Bush Administration will be how and why it squandered an opportunity to continue market-based administrative reforms of the Endangered Species Act begun, ironically, in the Clinton Administration under the direction of then Secretary of the Interior Bruce Babbitt. This article traces the momentum built for reform in the Babbittonian era and examines what has not happened since then.
Abstract: This article describes sustainable development as involving five dimensions: environment, economy, equity, time, and space (or scale). I suggest that the complexity inherent in balancing these five dimensions demand algorithmic approaches like those being explored in complex adaptive systems theory.
Abstract: This article examines some of the perverse consequences of the structure of the Endangered Species Act, namely that it deters property owners from conserving threatened species and lacks proactive measures.
Abstract: This article builds a model of federal constitutional amendments using proposed environmental quality rights amendments as a case study. I argue that environmental quality rights amendments are unworkable and violate the underpinnings of federal constitutional design.
Abstract: Since the New Deal, and even before, regulatory law has grown relentlessly ever more massive, detailed, and encompassing. The sentiment, "there's too much law", surely rings true on a daily basis to both practitioners and regulated parties, but there is remarkably little scholarship delving beneath this glib cliche. Scholarly elaborations on "optimal precision" and "mud and crystals" explore the design of individual regulations, and are valuable in that sense, but they do not examine the systemic implications of regulatory accretion. As easy as it is to find quips in the literature decrying the accumulation of "too many rules", one searches in vain for principled analysis of the problem and its solutions. We argue that regulatory accretion warrants serious consideration in its own right. Accretion presents a different kind of problem than the traditional critiques of inefficiency, complexity, or democratic accountability. It creates a separate type of challenge that has not, and will not, be addressed adequately by many of the entries in the current parade of proposed reforms.
Part I of the Article describes the phenomenon of regulatory accretion from several perspectives. We define a range of metrics, showing that over the last 50 years, regulatory growth has been the rule rather than the exception using virtually any measure. We also show why regulatory law theory suggests we should expect accretion to be the dominant dynamic in regulatory systems, overwhelming any forces of regulatory "erosion". We close Part I with evidence that the regulatory community - both regulators and the regulated - perceives regulatory accretion as a significant factor in the prevalence of noncompliance and the fulfillment of policy objectives.
Part II lays out our theory of how regulatory accretion, even of perfect rules, increases noncompliance by changing the very quality of how the regulatory system operates. The conventional view is that compliance is simply a matter of investing the appropriate level of resources toward gathering the information needed to perform the tasks required to comply (information burden), and then performing them (effort burden). Accretion of rules adds a third challenge to compliance, however, which we call system burdens. These burdens arise from the operation of the collection of rules as a system. Overlooked in regulatory law theory, system burdens can confound compliance even when sufficient resources are devoted to meeting all the effort and information burdens.
In Part III we explore the practical implications of system burdens. There is always bound to be some residual or background noncompliance, what regulatory law theory calls "slippage". Additional investment in enforcement and compliance behavior may chip away at this residual, but will not do so with equal success across the three forms of compliance burdens. Noncompliance stemming from system burdens will be much harder to resolve than will noncompliance associated with effort and information, because it is not associated with discrete rules. In regulatory fields that experience high levels of system burdens, such as environmental law, there will be high rates of noncompliance and, more important, compliance itself may be difficult to translate into a tangible policy goal "payoff". This combination can lead the regulated community to question the legitimacy of the system in general, and value compliance behavior less.
In Part IV we offer observations about how regulatory law can respond to the problem of accretion. We describe the fallacy of rule-specific solutions, positing instead that any meaningful response must tap into system level behaviors. Because of the focus in regulatory law and theory on efficiency, clarity, and accountability, conventional policy approaches generally describe problems in rule-specific terms. Although the number of rules in the administrative state may trigger system burdens that interfere with the very goals of regulation, the solution is not, it cannot be, to reduce the number of rules. Rather, as we go on to explain, the best strategy for managing system burdens is to evolve with them. Rather than myopic attention to each rule, the focus should be on building adaptive structures in the administrative system itself, so as to take advantage of the system-wide nature of large rule-based regimes. We show that the emerging body of literature on regulatory reform adopts this approach through its focus on market-based, information-based, and performance-based regulatory instruments. Our model of regulatory accretion offers original insights into not only why deregulation offers little promise in addressing system burdens but, more important, a central principle on which to design the next generation of regulation.
Abstract: This article examines the field of environmental law as a potential minefield for malpractice claims given its complex and dynamic nature. The article outlines principles for malpractice law applied to environmental law, based on malpractice principles applied in the tax and patent fields.
Abstract: The Article evaluates the Endangered Species Act using Dan Farber's theory of eco-pragmatism. Eco-pragmatism employs environmental baselines, a moderated precautionary principle, and adaptive management to mediate environmental policy issues. I conclude that the ESA reflects some of these attributes, but does not coherently assemble a truly eco-pragmatic framework.
Abstract: This article advocates an active, concerted strategy for staking out the middle ground in environmental policy. The middle ground - the domain of "middle of the roaders" - has conventionally been defined by compromise, and as a result lacks any defining content and principles. I propose an aggressive middle that uses enriched sources of information, agency professional judgment, and transparent adaptive management as its components.
Abstract: This article is the third in my series studying agriculture and environmental law. It asks why agriculture has not evolved toward more environmentally responsible behavior and points to possible "green" solutions that will move agriculture into necessary transformations.
Abstract: This article is the third in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first two installments (in the Duke and Vanderbilt law reviews), this work examines the "arrow" or direction of the legal system in the context of the administrative state. Drawing from diverse work such as Burke's study of history's nonlinearity and Tainter's classic study of the collapse of complex civilizations, we argue that the administrative state is becoming too resource intensive and burdened by a proliferation of rules.
Abstract: This article probes the history, meaning, and potential applications of section 7(a)(1) of the Endangered Species Act, which by its terms imposes a "duty to conserve" on all federal agencies. The article examines how agencies and courts have watered down this potentially forceful species conservation directive and suggests that, by linking it with the recovery planning function of section 4(f) of the Act, the duty to conserve could help us gain traction on species recovery.
Abstract: This article comprehensively examines the history and content of the numerous administrative reforms of the Endangered Species Act program carried out under the tenure of Department of the Interior Secretary Bruce Babbitt. The assessment is that these reforms provide a tremendous impetus for innovation of species conservation.
Abstract: This article explores the evolution of the concept of "sustainable development" through what I suggest are the "seven degrees" of relevance of legal conceptualizations: (1) translation of concept into norm; (2) uncontestability of the norm; (3) intolerance of violation of the norm; (4) demand for fulfillment of the norm; (5) translation of the norm as policy goal; (6) policy consequences based on the norm; (7) translation into hard law to apply. I suggest that, at the time of the writing (1998), sustainable development was stuck on level five.
Abstract: This article, fourth in a five-part dialogue appearing in the Pace ELR, further responds to Professor Bruce Pardy's critique of ecosystem management. I defend ecosystem management, arguing it does not involve the standardless, unbridled administrative discretion Pardy suggests.
Abstract: What do environmental lawyers consider the most significant environmental cases? In 2001, Jim Salzman conducted a survey of the envlawprofs listserv for the "Most Excellent" environmental law cases in the field, tabulating the top cases for law profs and for practicing attorneys. Given the significant decisions over the eight years, we thought it would be useful to conduct the survey again, this time using a dedicated website and surveying both the envlawprofs listserv and members of the ABA's Section on Environment, Energy and Resources. We enjoyed a high level of participation, with over 440 responses from across the nation, from academics and practitioners alike. Among the most interesting findings are: (1) not surprisingly, Chevron remains firmly in the Top Three cases; (2) more surprisingly, the relatively young Massachusetts v. EPA has vaulted to the top as the most significant case in the field; (3) most surprisingly, Rapanos scored in the Top Three in most categories of respondents and in the top four for almost all the categories; (4) TVA v. Hill , while still a favorite among academics, has faded from prominence among practitioners; and (5) some of the classic environmental law cases that scored high on the 2001 survey, such as Overton Park and Ethyl Corp., have fallen off the cliff. Our article discusses the findings in more detail and our musing explanations for the surprise results.
Abstract: This article, second in a five-part dialogue appearing in the Pace ELR, responds to Professor Bruce Pardy's initial evaluation of ecosystem management. I defend ecosystem management, arguing it is not directed at changing nature as Pardy suggests.
Abstract: This article offers an early examination of the law and governance of biodiversity (circa 1995) through the lenses of the Endangered Species Act, Clean Water Act, and Coastal Zone Management. It suggests that true multi-scalar, cooperative federalism will be needed to manage complex ecological resources for biodiversity conservation. A suggested model employing regional biodiversity management approaches is outlined.
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