Protecting a Natural Resource Legacy While Promoting Resilience: Can It Be Done?

Abstract

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost 40 years, that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes.

The effort to reform existing law or design new laws that incorporate the insights of ecology confronts a central tension: whether laws should provide agencies and resource managers more flexibility to adapt to the dynamic reality of natural systems or more clear and enforceable mandates to constrain agency discretion in the face of the overwhelming economic pressure to deplete and degrade resources.

This article explores the extent to which these two directions can be reconciled. It focuses on a concept for a new federal resource protection law proposed elsewhere – a National Environmental Legacy Act. The core objective of a Legacy Act would be to complement existing laws with a mandate that is enforceable and achieves clear conservation objectives. This paper evaluates the extent to which the design of this proposed statute is or can be made consistent with the insights of ecology. It examines how the ecological concept of resilience can help us to resolve the central tension between discretion and flexibility, on the one hand and enforceable mandates, on the other. It identifies the points of tension between the proposed statute and the lessons ecologists offer about natural resource use and management, then explores how the concept of resilience may help to address this tension.

Keywords: ecology, resilience, ecological resilience, environmental legacy, natural resource legacy, environmental law, natural resources law, natural resources conservation, dynamic natural systems, natural resource management