Enjoying Katmai

Katmai National Park has been part of the national park system since 1918, just two years after Congress created the National Park Service. Located about 300 miles southwest of Anchorage, Katmai’s attractions have evolved from the aftermath of an epic volcanic eruption to world-class fishing to the place to go to see brown bears catch salmon. These attractions have yet to attract the hordes of people who visit other national parks, and Katmai remains one of the least visited of the 59 national parks. The Park Service is responsible for managing Katmai consistent with the Organic Act’s dual goals of enjoyment and conservation. In practice, Katmai experiences much more conservation than enjoyment. The proposals to increase visitation to Katmai have failed because of a consensus that not all national parks are alike even though the law governing them is nearly the same. Katmai’s history of benign neglect by Congress and the courts demonstrates that the Park Service is capable of managing remote national parks in a manner that achieves the law’s goals while serving the public’s desires

Voter\u27s Intent and Its Discontents. Book Review Of: Understanding the 2000 Election: A Guide to the Legal Battles that Decided the Presidency. by Abner Greene

Book review of: Understanding the 2000 election: a guide to the legal battles that decided the presidency. By Abner Greene. 2001. Pp. 202. Reviewed by: John Copeland Nagl

Pope Francis, Environmental Anthropologist

In June 2015, after much anticipation and a few leaks, Pope Francis released his encyclical entitled “Laudato Si’: On Care for Our Common Home. “Laudato si’” means “praise be to you,” a phrase that appears repeatedly in Saint Francis’ Canticle of the Sun poem. The encyclical itself has been widely praised and widely reported, far more than one would expect from an explicitly religious document. The encyclical is breathtakingly ambitious. Much of it is addressed to “every person living on this planet,” while specific parts speak to Catholics and others to religious believers generally. It surveys a sweeping range of environmental and social problems. Along the way, it relies on anthropology, theology, science, economic, politics, law, and numerous other disciplines. Especially anthropology. The popular response often described Laudato Si’ as a “climate change” encyclical. It’s not: only five of the 180 pages specifically address climate change, about the same as the discussion of the noise and ugliness, crime, housing, and transportation that affect the “ecology of daily life.” It is not really even an environmental encyclical, for the natural environment does not play the starring role. Rather, it is an encyclical about us. Francis contends that the natural environment suffers because we misunderstand humanity.This Article examines the encyclical from the perspective of Christian environmental thought more generally. It begins by outlining the development of such thought, and then it turns to the contributions of the encyclical with respect to environmental anthropology, environmental connectedness, environmental morality, and environmental governance. As the article explains, Pope Francis is a powerful advocate for a Christian environmental morality but a less convincing advocate for specific regulatory reforms. His greatest contribution is to encourage more people, religious believers and non-believers alike, to engage in a respectful dialogue about how we can better fulfill our responsibilities to each other and the natural world that we share

Corrections Day

In July 1995, the House of Representatives established a Corrections Day procedure for fixing statutory mistakes. This article traces the history of the corrections day idea, beginning with suggestions offered by Justices Cardozo and Ginsburg many years apart. The article also recounts the early applications of Correction Day by the House. This article describes the problem of statutory mistakes: what they are, and who makes them. It explains that statutory mistakes do exist, regardless of how one defines mistake. Congress, agencies, and the courts all make mistakes, though the responsibility for them ultimately resides with Congress, the author of the statute. The article examines how Congress has tried to correct statutory mistakes through the periodic reauthorization of statutes, appropriations riders, using subsequent legislative history to signal approval or disapproval of an interpretation of a statute, informal pressure exerted through agency oversight hearings, and such statutory amendments as Congress is able to enact. The inadequacy of these existing congressional procedures operates as a central premise supporting the theories of statutory interpretation that rely on the courts and agencies to correct statutory mistakes. More generally, this article examines the idea of a statutory mistake and what it says about statutory interpretation. Corrections Day supports one of the fundamental premises of textualist theories of statutory interpretation: Courts and agencies need not (and indeed should not) attempt to correct statutory mistakes under the guise of statutory interpretation because Congress can fix its own mistakes. Conversely, theories of statutory interpretation that look beyond the statutory text and legislative intent object that Congress lacks the institutional competence to track how all of the statutes it has enacted are being implemented and that it is unrealistic to expect Congress to update federal statutes to account for new developments or to correct prior mistakes. Agencies and courts, the argument continues, must fix statutory mistakes lest they go uncorrected. If, however, Congress can readily amend statutes when a mistake is identified, then Corrections Day will undermine the case for theories of statutory interpretation that look beyond the statutory text or legislative intent. Corrections Day could also raise questions about the way in which courts address legislative history, arguments that Congress has acquiesced in a prior interpretation of a statute, and stare decisis. Even the limitations of the new procedure fail to undermine the case that Corrections Day makes for theories of statutory interpretation that rely on Congress to correct statutory mistakes. interpretation, correction, Congress, mistake, legislative, Gingric

Wilderness Exceptions

This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as “wilderness” even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a wilderness area has already been established. Only Congress has the authority to designate wilderness areas, and how Congress has used that authority both to establish over 100 million acres of wilderness areas and to exclude certain wild places because Congress does not want them managed as wilderness. Congress employs wilderness boundaries that separate land subject to the land use regulations of the Wilderness Act from land that is free from those regulations to achieve even finer distinctions between land use that is regulated by the Wilderness Act and land use that is not. The exceptions contained in the Wilderness Act allow activities that are otherwise prohibited by the Act. And Congress sometimes creates additional exceptions to the Wilderness Act’s general rules both in the statutes establishing new wilderness areas and in statutes enacted in response to controversies about the use of a wilderness area. This combination of stringent restrictions and appropriate exceptions is what has made the Wilderness Act so successful for fifty years

The Environmentalist Attack on Environmental Law

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights, and the Law of the Commons,” Burns Weston and David Bollier identify the state/market alliance is the problem, and their solution is decentralized governance based on informal norms. Both books are especially effective in identifying the shortcomings in how environmental law actually operates today. But their proposed solutions are likely to fall short absent a more fundamental transformation on how we imagine the natural environment and humanity’s relationship to it. The public trust doctrine and the commons have been part of the fabric of the law for centuries, yet they have failed to accomplish the environmental goals that Wood, Weston, and Bollier hope to achieve now. And if we do experience a fundamental transformation in environmental thinking, then the existing environmental laws may finally fulfill their original purposes