Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act

Symposium: Missing Information: The Scientific Data Gap in Conservation and Chemical Regulation, held on March 24, 2006 at Indiana University School of Law- Bloomington

Beach Law Cleanup: How Sea-Level Rise Has Eroded the Ambulatory Boundaries Legal Framework

As the sea level rises, the boundaries between privately owned coastal property and sovereign submerged lands held in public trust are becoming increasingly contested. The common law doctrines that determine these boundaries under conditions of change—primarily accretion, erosion, reliction, and avulsion—have important implications for all those involved in adaptation planning along our coasts. This includes private owners of coastal property, local government officials seeking to develop and implement adaptation strategies, beachgoers seeking to use shrinking beaches, beach-tourism-dependent businesses, and courts facing cases involving boundary disputes at the water’s moving edge. This paper raises the questions of whether and how the common law doctrines remain relevant and applicable in an era of sea-level rise. Using Florida law as an illustration, Part I of this paper sets forth the constitutional and common law that governs littoral property rights and defines those lands protected by the public trust as sovereign submerged lands. Part II identifies four doctrinally significant factual predicates for application of these doctrines that are absent in an era of sea-level rise. In Part III, the paper presents two distinct approaches courts might take to adapt the law to the new coastal realities. Part III sketches how a court adopting either approach would analyze a boundary question, and identifies some of the critiques and concerns that each approach raises

Beyond the Spotted Owl Problem: Learning from the Old-Growth Controversy

This Article is a case study of a single controversy that has been raging in the Pacific Northwest: the now infamous dispute over logging in publicly owned old-growth forests and the attendant threat to the northern spotted owl. The spotted owl, confronting extinction, sits at the center of the controversy, but the debate extends far beyond the fate of the owl, raising issues about the intrinsic value of unique and native ecosystems and the long-term consequences of logging practices on our public lands on the one hand, and about the costs of environmental protection and economic transition on the other

Section 404 at Thirty-Something: A Program in Search of a Policy

This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years

Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act

This paper focuses on a public trust resource -- wetlands -- and examines an issue that has been studied primarily with reference to health-based pollution-control statutes. This paper assesses whether information gaps create an obstacle to successful regulation under section 404 of the Clean Water Act (CWA or the Act ) as it applies to discharges of dredged and fill material in wetlands. It focuses on how section 404 and the regulations governing permitting determine information demands, information supply, and the legal consequences of a gap between supply and demand. The goal of this inquiry into the demand/supply/consequences scheme is to determine if, taken as a whole, the scheme is coherent and rational in light of the policies that underlie section 404

Restoration Rx: An Evaluation and Prescription

In this introductory article, I explore what ethics, science, economics, and law suggest about the value of restoration. These themes -- the questions and challenges posed by ethics, science, economics, and law -- resonate throughout the Articles in this Symposium. Drawing on the presentations given at the Symposium and the literature on environmental restoration, this article reviews some of the major questions that science and ethics pose for restoration, as well as the challenges posed by the economic and legal contexts within which environmental restoration occurs. After a brief comment on the definition of restoration, this article addresses the challenges posed by science, ethics, and the legal and socioeconomic contexts in which restoration occurs

Protecting a Natural Resource Legacy While Promoting Reslience: Can it be Done?

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 forty 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. This effort to reform existing law or design new laws that incorporate the insights of ecology confronts a central tension. Scholars differ in their assessment of the key failures in existing law, depending on whether they approach the question from a legal or scientific perspective. Those focused on the legal dimension frequently see the unmet challenge as designing effective and enforceable conservation laws with clear objectives. They often see the central failure as inadequate or ineffective constraints on private actions that degrade or deplete our resources. On the other hand, those focused on the insights from science often point to the failure of legal regimes to provide agencies and land managers adequate flexibility to make scientifically sound decisions in light of our limited knowledge about the environment and the inevitability of change and surprises. These different perspectives create a fundamental tension that cannot be easily or generically resolved. In order to benefit from the insights of both law and science, reform efforts must heed both perspectives. Taken together, the two perspectives call for legal regimes that are enforceable, achieve clear results, and yet permit flexibility in their implementation -- a seeming oxymoron. This Article explores whether, how, and to what extent these two goals can be reconciled. It employs a single example -- a proposal for a new federal statute -- to examine whether and how the tension can be addressed in the design of that particular statute

Restoration Rx: An Evaluation and Prescription

In this introductory article, I explore what ethics, science, economics, and law suggest about the value of restoration. These themes -- the questions and challenges posed by ethics, science, economics, and law -- resonate throughout the Articles in this Symposium. Drawing on the presentations given at the Symposium and the literature on environmental restoration, this article reviews some of the major questions that science and ethics pose for restoration, as well as the challenges posed by the economic and legal contexts within which environmental restoration occurs. After a brief comment on the definition of restoration, this article addresses the challenges posed by science, ethics, and the legal and socioeconomic contexts in which restoration occurs

Section 404 at Thirty-Something: A Program in Search of a Policy

This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years

In Search of an Environmental Ethic

A preliminary analysis of several core environmental provisions suggests that the mix of values embedded in our environmental statutes is substantially similar to the values found in the common law and non-environmental statutes. That is, the environmental statutes tend to reflect human concerns that predate any dawning of environmental awareness -- with only a modest introduction of new values or reasons for caring that are uniquely attributable to concern for the human relationship to the environment. If this is true, it seems to undermine a tenet of the public debate. It may call into question the very naming of these as environmental laws and their easy identification with environmentalism and environmental ethics. Apart from this, my goal is to focus attention on the nature of the values included and those excluded from consideration under our various laws. I envision a study of the process by which our law and our values evolve. This study should enhance our understanding of the law and of the role of various institutions in the development of both the law and its ethical content. This article suggests that despite impressive consensus and legacy, it is not clear that environmental laws do reflect any clearly articulated ethic that should be called environmental. The aim of this article is to explore whether and how we can know if our laws relating to the environment accurately reflect values held by a majority of people. This article posits the value of a concerted effort by legal scholars to articulate more clearly the values and ethics that underlie our environmental laws and that are promoted by them