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Abstract:
One of the defining issues of the twenty-first century will be the allocation of fresh water supplies, both in the United States and abroad. Population growth, increased per capita consumption, water pollution, and climate change all conspire to challenge the water allocation systems of even the wettest states. Florida, for example, which enjoys an average annual precipitation of over fifty inches, currently experiences regional water shortages, with more predicted for the future. This Article takes a broad view of the modernization of water law, considering five of the most pressing and controversial modern challenges into a national and historical context: a) advancing the public interest while allocating water among competing users; b) retaining sufficient water in natural stream, lakes, and aquifers to maintain vibrant aquatic ecosystems; c) ensuring that adequate water supplies will be available for future needs; d) determining the extent to which managers should transfer water from places of relative abundance to places of relative scarcity; and e) determining the role, if any, of the free market in allocating water resources within states. The first part of this Article provides a general overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in piecemeal fashion, resulting in a patchwork of rules - common law and statutory, old and new. In rare cases - including that of Florida - the process may be more comprehensive, with states supplanting their entire body of common law with modern statutory codes. The second part examines the evolutionary path of Florida, a state that has adopted generally wholesale and comprehensive reform in modern times. Because this reform took place in 1972 - at the dawn of the modern environmental era - the reform reflects modern environmental and public interest sensibilities. The third part turns from process to substance, looking more closely at five problems that plague virtually every state.

water, water law, riparian, prior appropriation

Abstract:
Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, we are experiencing unprecedented declines in bird and wildlife species, as well as ecosystem services. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carryout its mission. Moreover, a number of lawsuits have been filed recently asserting that the registration of certain pesticides is in violation of the federal endangered species act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, such as the devastating impacts DDT had on predatory bird populations, which fueled the environmental movement of the late 1960's and early 1970's, largely have been ignored for the past 30 years. Only very recently has there been renewed interest in the ecological (as opposed to human health) risks posed by pesticides. Moreover, the explosion of pesticidal genetically modified organisms (GMOs) in agriculture has raised concerns regarding the novel risks to biodiversity posed by these new pesticides. Surprisingly, however, the primary federal statute governing pesticides, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), has not changed significantly with regard to ecological matters since 1972 and remains primarily a consumer protection statute not well suited for ecological protection. Moreover, the manner in which the Environmental Protection Agency (EPA) has implemented FIFRA has not kept pace with developments in our understanding of the uncertainty, complexity, and changing nature of ecological systems. This Article breaks new ground by being the first to use the new legal discipline of "eco-pragmatism" to analyze, and then reinvent, U.S. pesticide law to better protect ecological resources.

For years, environmental legal scholars have sought a middle ground between absolutist risk-based approaches to environmental regulation and cost/benefit analysis approaches. In the past several years, scholars have begun exploring the emerging field of eco-pragmatism - a dramatic new framework for environmental decision-making developed by Professor Daniel Farber - as a way to achieve a workable middle ground. Although a number of prominent legal scholars have analyzed eco-pragmatism in a general sense, none have attempted to apply an eco-pragmatic framework to any environmental pollution control law. This Article is the first to do so. This Article builds on Farber's work and the works of a number of other prominent legal scholars by first bolstering eco-pragmatism through consciously incorporating into it principles of ecological science, and then applying the strengthened eco-pragmatism to a long overlooked area - pesticide law. As the first attempt to actually apply eco-pragmatism to a field of environmental pollution control law, this Article represents an important step in the development of this area of legal theory. By analyzing current pesticide law as well as EPA's implementation of such law through an eco-pragmatic lens, this Article identifies areas of the law that are in need of revision and proposes revisions based on eco-pragmatic principles, which if implemented would greatly enhance our ability to protect critical ecological resources.

Environmental Law, Pragmatism, Law & Economics, Adaptive Management, Pesticides