Embracing Uncertainty, Complexity and Change: An Eco-Pragmatic Reinvention of a First Generation Environmental Law

ABSTRACT Embracing Uncertainty, Complexity and Change: An Eco-Pragmatic Reinvention of a First Generation Environmental Law Mary Jane Angelo, University of Florida Levin College of Law 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

Regulating Evolution for Sale: An Evolutionary Biology Model for Regulating the Unnatural Selection of Genetically Modified Organisms

In the past ten years there has been an explosion in the genetic manipulation of living organisms to create commercial products. This genetic manipulation has, in effect, been a directed change in the evolutionary process for the purpose of profit. This deliberate alteration of the path of evolution has brought with it a panoply of novel environmental, human health, and economic risks that could not have been foreseen when U.S. environmental and health protection laws evolved. Many products of genetic engineering have been modified to possess traits that increase their ability to reproduce and survive in the environment. By genetically manipulating microorganisms, plants, and animals to make them more “fit” from an evolutionary standpoint, science has altered the path of evolution to favor not those organisms that have evolved to be more fit for their natural environment, but instead those organisms that have become more fit at the hand of humans for commercialization and profit-making. U.S. environmental law has not evolved to keep pace with these dramatic changes in the evolution of biological systems and has been constrained by outdated policies adopted in the 1980s. Accordingly, the law governing GMOs has emerged as a piecemeal patchwork of regulations implemented by three federal agencies plagued by interagency turf battles, bureaucratic inertia, and conflicting regulatory standards. The thesis of this Article is that a new legal approach, which draws on principles of evolutionary biology, is needed to address the novel risks of environmental harms caused by man’s intervention in, and manipulation of, evolution through the development of GMOs. This Article is the first to analyze the complete array of U.S. regulatory programs addressing GMOs and the adequacy of these programs to address the novel elements of risk posed by GMOs. Moreover, this Article is the first ever to propose a new approach to regulation of GMOs utilizing principles drawn from evolutionary biology theory. By applying evolutionary biology theory to the regulation of GMOs, this Article provides a comprehensive legal framework for determining which GMOs should be permitted to be released into the environment under what conditions. This approach has the potential to revolutionize environmental law as it relates to GMOs, as well as to other artificially cultivated living organisms

Florida\u27s Troubled Phosphate Companies: Can Bankruptcy Law Be Used to Relieve Their Obligation to Reclaim the Land?

The conflict that brings us here arises when the earth is disturbed and the environment in which we live is threatened. . . . On the one hand are the corporations who mine phosphate reserves in Florida—their intentions are based on the argument that an ever-shrinking agrarian base in America must have fertilizer to remain effective and productive. On the other hand are the individuals and groups who oppose that mining and their argument is based upon the contention that such mining is too destructive of a unique and very fragile ecosystem. By the year 2000, phosphate companies will have mined over 160,000 acres of Florida land. At the present rate, only one third of that land will be reclaimed or in the reclamation process - leaving over 100,000 acres stripped of all vegetation and natural contours and posing potential health and environmental hazards. To complicate the scenario, current financial woes of Florida\u27s phosphate industry are forcing several companies into bankruptcy court. Many fear these bankrupt companies will breach their obligation to reclaim mined lands. This note will analyze whether Florida\u27s financially burdened phosphate industry can employ bankruptcy law to escape its obligation to reclaim lands. Although courts have not specifically addressed the issue, bankruptcy case law relating to the obligation of hazardous waste cleanup indicates how courts will likely treat the obligation to reclaim mined lands. This note will evaluate legal commentators\u27 proposed resolutions and comparable legislation of other states. This note concludes by proposing legislation to ensure compliance with Florida phosphate reclamation obligations

Discordant Environmental Laws: Using Statutory Flexibility and Multi-Objective Optimization to Reconcile Conflicting Laws

The current morass of federal environmental laws has led to significant conflicts among statutes and the manner in which agencies implement them. In recent years, this quagmire of environmental laws has hindered the progress of a number of high-profile environmental regulatory programs and restoration projects. Neither the Courts nor legal scholars have developed approaches to resolving conflicts in a manner that harmonizes environmental statutes while at the same time protecting the most critical environmental resources. A standard methodology that optimizes the multiple objectives of environmental statutes and their implementing programs would greatly enhance decision-making and ensure that the most salient environmental objectives are met. Multi-objective optimization is a decision-making methodology that seeks to optimize multiple objectives. Although this methodology has been used widely in the business world and in scientific decision-making, it has not yet made its way into the legal discourse. This article suggests multi-objective optimization as a structured decision support tool for prioritizing environmental objectives and reconciling regulatory programs

A Model Wetlands Protection Ordinance: Legal Considerations

Many counties in Florida are currently in the process of developing new wetlands protection ordinances, or revising old ones. While public policy supports strict regulation of activities in wetlands, many counties are reluctant to adopt restrictive ordinances because of the potential for large damages awards if the regulations are later found to be temporary takings. Recent Supreme Court case law has upheld the payment of compensation as an appropriate remedy for overly restrictive land use regulations compounding the fears of local governments. This paper summarizes the legal implications of a Model Wetlands Protection Ordinance developed by the author. In particular, an outline of the mechanisms that enable local governments to minimize the risk of paying compensation for restrictive wetlands regulations is included. The Model Ordinance is a prototype to aid Florida\u27s local governments in developing their own wetlands protection ordinances. It is necessary for local governments to adopt wetlands ordinances for several reasons. First, wetlands perform important hydrological, ecological, economic, and sociological functions. These functions are negatively impacted by improper land use. Many of Florida\u27s wetlands have already been destroyed or diminished by improper land development. Second, current federal and state wetlands regulations provide inadequate protection to wetlands functions. For example, federal law does not regulate any activity that does not involve discharge of dredge or fill materials into waters of the United States. Federal law further exempts from regulation agricultural activities and only provides for general permitting for certain other discharges. Federal jurisdiction does not extend to wetlands that are not contiguous or adjacent to waters of the United States. Additionally, judicial interpretations of federal regulations have severely weakened the wetlands permitting criteria. Likewise, Florida\u27s Wetlands Protection Act and related regulations do not adequately protect the important natural functions of the state\u27s wetlands. The Florida Wetlands Act exempts major activities, such as agriculture, which may have significant effects on wetland functions. The Act fails to give the state regulatory jurisdiction over many functioning and ecologically important wetland systems. In addition, the Act\u27s criteria are vague and not stringent enough to protect wetlands from the adverse impacts of development. Furthermore, federal and state governments generally protect only wetlands of national or state concern; local wetlands often are unprotected. Third, local governments have generally had broader police powers to regulate land use than other levels of government. Fourth, Florida\u27s 1985 Growth Management Act mandates that local governments plan for the management of wetlands in their comprehensive plans and adopt land development regulations consistent with the plan. Finally, local governments may regulate wetlands more cheaply and easily and with less bureaucracy than other levels of government

Integrating Water Management and Land Use Planning: Uncovering the Missing Link in the Protection of Florida\u27s Water Resources?

Except for limited provisions, Florida law does not establish a formal link between land planning and water planning. In light of the importance of water resources for the future development of the State, this is a significant missing link. Land use planners and water managers live in very different worlds and speak very different languages. Water managers point to poor planning as the cause of environmentally inappropriate development, and planners point to the shortcomings of water management regulatory programs as the cause of environmental woes. So what is the problem?Why are water management and planning not better integrated? Should they be? How can we improve this integration

Small, Slow, and Local

The United States is in the middle of a significant cultural shift. Until very recently, United States citizens and policy-makers were willing to accept, or at least tolerate, what has become our food status quo--a highly subsidized, centralized, industrial food system that is environmentally harmful and unsustainable and encourages unhealthy eating habits. Many citizens and policy-makers are now demanding that we re-evaluate our entire agricultural system from farm to table and look for ways to develop a new food paradigm that is environmentally sound, sustainable, socially equitable, and that makes healthy whole foods available to all. During the summer of 2010, I taught a course titled Agricultural Policy and the Environment at Vermont Law School. When I walked into the classroom on the first day I was shocked to see almost fifty students in the class. I taught the same course the year before and had approximately twenty-five students in the class. Although I cannot be sure, I think that if I taught the same course ten years ago I would be lucky to have enough students register to avoid having the course cancelled. Not only did the 2010 course have a very large enrollment, but the students who were in the course were extremely interested and engaged and brought with them a broad range of relevant experience. Some had grown up on farms in various parts of the country while others had chosen to work on organic farms as teenagers or adults. Some students had previously or were currently working on agricultural or food policy matters through a variety of organizations such as land trusts and in a variety of capacities such as being a social worker. Many others, while not having as much direct experience, had learned a great deal about agricultural and food policy through other formal education or independently. The widespread interest in agricultural issues at Vermont Law School mirrors the renewed interest in food policy by the public in general. Unquestionably, many factors contribute to this cultural shift to local foods, including a desire to feel more connected to the land and to interact more with our communities. However, certainly a major factor is the public\u27s growing awareness that our current industrialized food system has failed us with regard to the health of both our diets and the environment

Genetically Engineered Plant Pesticides: Recent Developments in the EPA\u27s Regulation of Biotechnology

This paper examines the EPA\u27s new policy regulating plant pesticides and presents the legal, scientific and policy issues surrounding the regulation of genetically engineered plants. Part I introduces the concepts covered in this paper. Part II.A. discusses products that have originated from biotechnology. Part II.B. describes the EPA\u27s legal authority for regulating plant pesticides and other biotechnology products. Part II.C. presents the history of federal regulation of biological pesticides and biotechnology products. Part III examines the controversy surrounding the use of genetically engineered plants, including the potential risks and benefits of genetically engineered plants and the public\u27s perception of these products. Part IV describes the EPA\u27s proposed policy and regulations for plant pesticides and discusses the more controversial issues associated with the policy. Finally, part V discusses the international implications of the EPA\u27s policy

Genetically Engineered Plant Pesticides: Recent Developments in the EPA\u27s Regulation of Biotechnology

This paper examines the EPA\u27s new policy regulating plant pesticides and presents the legal, scientific and policy issues surrounding the regulation of genetically engineered plants. Part I introduces the concepts covered in this paper. Part II.A. discusses products that have originated from biotechnology. Part II.B. describes the EPA\u27s legal authority for regulating plant pesticides and other biotechnology products. Part II.C. presents the history of federal regulation of biological pesticides and biotechnology products. Part III examines the controversy surrounding the use of genetically engineered plants, including the potential risks and benefits of genetically engineered plants and the public\u27s perception of these products. Part IV describes the EPA\u27s proposed policy and regulations for plant pesticides and discusses the more controversial issues associated with the policy. Finally, part V discusses the international implications of the EPA\u27s policy