Habitat and Humanity: Public Lands Law in the Age of Ecology

Public lands law in this country has been gridlocked for a decade at the intersection of democracy and ecology. The public is still led to believe that the “conservation” versus “preservation” of our discrete, bounded parcels of public land is the central political issues and that what must happen for one set of values or another to triumph is that one or another faction capture those lands parcel-by-parcel and put them under its preferred legal regime. Experts and activists have transitioned from this philosophy to the open-textured, inclusive notions of “ecosystem” and “adaptive” management on which everyone agrees in the abstract but not in application. The public’s faith in its pluralist administrative state is very much contingent upon its faith in professional expertise, though, even as this whole arrangement becomes increasingly incompatible with any truly “ecosystemic” approach to public lands. Indeed, while active management and “ecological restoration” are probably truer frames of reference for public lands today, the only way these can even possibly frame a progressive conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability. They are facing this dilemma most immediately in their several legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen different enabling statutes

Localism\u27s Ecology: Protecting and Restoring Habitat in the Suburban Nation

There is wide agreement among conservation activists and scientists alike that loss and alteration of habitat are the leading threats to biodiversity in America. Suburbs and exurbs, though, are only beginning to acknowledge that they are the problem in the struggle to stem the tide of “sprawl” and other economic processes producing ecosystem-wide habitat degradation today. A recent resurgence in academic and activist attention to local governments in America is reconsidering them as viable solutions to this problem. But most of this dialogue is being based upon a mistaken conception of local governance. Much of the legal scholarship on local environmentalism has ignored the reality of our localism and its role in the creation of the ever-expanding built landscape in America. This paper argues that this lack of realism in the current debate about local environmental law renders it blind to the vices of local governments and some of their sham conservation measures, but also to their counterintuitive virtues and possibilities for real conservation progress. Local government’s deep connection to private property entrepreneurialism is what has made it so practically powerful in resisting so many state and federal environmental initiatives. But it may well be this dimension of our localism that renders it uniquely fit to the tasks of real habitat protection and restoration in the twenty-first century

Waters of the United States: Theory, Practice and Integrity at the Supreme Court

In the Supreme Court\u27s two wetlands cases this Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronted (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA\u27s enormous project of restoring the chemical, physical, and biological integrity of the Nation\u27s waters. In this essay, I argue that the way the Court went about resolving its differences is, unfortunately, instructive not just to environmental lawyers. It is illustrative of the Court\u27s failed minimalism, disregard for its own precedents, and tired uses of semantics where truly substantive problems are confronting our society

Coercing Collaboration: The Chesapeake Bay Experience

This Article uses a detailed case study of the Chesapeake to describe an emergent model of intergovernmental administration tailored to address our largest-scale environmental problems. The Obama EPA’s “total maximum daily load” (“TMDL”) in the Chesapeake has yet to be replicated. But it should be. The TMDL and its supporting norms were unique as an operational plan, achieving a level of transparency, accountability, means/ends rationality, and continuous improvement that were unprecedented at its scale. And whether this model can be replicated elsewhere turns out to be as much a question of law as of politics

Qualitative, Quantitative, and Integrative Conservation

Professor James E. Colburn\u27s article illustrates the barriers to carrying biodiversity conservation into the twenty-first century. His probing article demonstrates the truth of the first book of Genesis, that new knowledge can be a mixed blessing. Using as examples the critical habitat designation for the Canadian Lynx and the listing of the Polar Bear as a threatened species, Professor Colburn argues that we lack the institutional capacity to apply scientific advances when making conservation decisions. The tragedy of modern biology is that the more risk information we have (and are required to try and assemble), the less certain we are that we can ever know which biological entities merit our protection. Professor Colburn\u27s article identifies three tensions that impede current efforts to protected threatened and endangered species. First, biodiversity conservation is becoming just another risk management problem which requires dynamic decision-making under varying conditions of uncertainty; put differently, it is an example of the theoretical convergence now taking place in environmental law. Biodiversity conservation is moving toward the toxics regulation model with, as Professor Adelman\u27s article in this symposium so well enumerates, all the problems of this project. Second, post-Chevron administrative law often subjects agency decisions to unpredictable judicial review; and third, we are seriously under-investing in biodiversity conservation, which results in internal regulatory gridlock. The ESA saddles the Services with far too many conjunctive tasks today, inviting their opponents to disrupt, delay, and defeat them. To correct this situation, Professor Colburn proposes what amounts to a regulatory science solution. Ultimately the ocean of available data must be shaped and adapted to the cognitive capacity of the users to provide managerial benchmarks to evaluate, inter alia, habitat designation; human, biological, and chemical interactions of the whole \u27earth system;\u27 and the evolutionary processes of speciation

Technology-Based? Cost Factoring in U.S. Environmental Standards

Environmental controls in the United States are often said to be “technology-based” because the polluter’s duties are determined by the available technology for controlling that pollution rather than by the social costs and benefits of doing so. Indeed, this is much of what distinguishes U.S. environmental law post-1970 from that which preceded it. But technology-based standards have in fact weighed the costs of controlling pollution in unique, often obscure ways, yielding an analysis that defies standardization and basic notions of transparency. Often lumped under an umbrella heading called “feasibility” analysis and justified on the grounds that it avoids many of the known pitfalls of cost-benefit analysis, the factoring of cost into technology assessments hands our Environmental Protection Agency a uniquely hard problem of prediction: the inducement of innovation. This Article traces the evolution of the practice to the state of the art today, offers several clarifications upon reflection, and suggests that cost estimation in technology- based standard setting is actually more likely to be a useful decision input than the orthodox cost-benefit balancing procedures. Most importantly, it is more likely to accurately assess the possibilities of inducing innovation—accuracy that is increasingly vital to meeting environmental challenges like climate change

Declaring Disaster

The major federal lands laws, the National Environmental Policy Act ( NEPA ), the Endangered Species Act ( ESA ), the Federal Advisory Committee Act ( FACA ), and the traditional principles of administrative law have all combined to set a status quo with which public lands lawyers and conservationists are familiar. But wildfire has just as surely made each of our four compass points into its own special sort of paradox and is now undermining the very norms that defined this field. Whatever happens next, fire is one force among several poised to remake public lands law into a wholly unprecedented collection of institutional and normative forms still in their infancy-challenging anyone who would call it an architecture to explain and justify it. One way or another, in the face of mounting ecological disturbance, risk, and political turmoil, public lands law as we know it is either going to adapt or be marginalized. I conclude with some suggestions for how we might bring the values that gave rise to the field of public lands law into a future of assessing and managing multiple-scale risks like wildfire across our intermixed landscape. Part II first sketches the fire problem and the intermixture of our land use systems. Part III then introduces the new normative and organizational forms wildfire has prompted into existence. And Part IV seeks to reconcile what we know about fire and these innovations with our hopes for land and local autonomy as they intermix in the WUI