Remedying the Misuse of Nature

As currently conceived, natural resource damages are limited in scope; even in combination they cannot adequately remedy misuses of nature. Even so, these damages provide a good starting point for assessing the promise and flaws embodied in existing laws. By identifying the limits of current resource-related remedies, the changes required to better protect ecosystem health become clearer. In search of a reformed natural resource damages law, Part I of this Article begins by exploring the idea that we should not misuse nature. It surveys current literature and explains how the idea would--if taken seriously--recast the ways we think about private property. Part II sets the stage for a reformulated law of natural resource damages by noting the gaps and limits of key environmental statutes and of the common law of property. It focuses particularly on the law\u27s failure to respect ecological functioning and the public\u27s interest in private land. Part III surveys the law of natural resource damages, which provides useful elements for constructing a broader, more ecologically grounded remedy. Part IV draws together the Article\u27s various parts to outline an expanded remedy for misuses of nature. The assessment is necessarily broad brushed. Its contribution is not in proposing detailed answers but in getting the challenges on the table. Part IV considers eight such challenges, each of which is foundational to the problem of protecting the healthy functioning of ecosystems when those systems know no boundary between federal, state, tribal, and private lands

The Exoskeleton of Environmental Law: Why the Breadth, Depth, and Longevity of Environmental Law Matters for Judicial Review

Environmental law is pragmatic, inevitable, and intentional. In the aggregate, the numerous federal environmental statutes are not simply a patchwork of ad hoc responses or momentary political breakthroughs to isolated public health problems and resource concerns. Together, they are a group of repeated, legislatively-backed commitments to embrace selfrestraint for self-preservation. Self-restraint and discipline are the essence of environmental law. Indeed, if one studies the patterns and repeated choices in environmental law’s many statutory texts, one can start to appreciate environmental law’s indispensable role in society: it serves as an enduring “exoskeleton,” a sort of protective armor created over time to protect ourselves from collective action problems that inevitably arise in a world of biophysical limits. Appreciating the exoskeleton—that is, appreciating the broader statutory and historical context in which these laws exist—has implications for the interpretation and implementation of environmental statutes. It has implications for the weight that regulators and jurists ought to give enacted purpose statements when interpreting the laws, for reviewing agency decisions made in the face of scientific uncertainty, and for the robust review that ought to be given to agency inaction. Absent a corrected understanding of environmental law, one that aligns the fundamental purpose of the laws with its implementation, the full fervor of Congressional commitment to self-restraint will continue to be met with judicial microscoping, apathy, and sidestepping

Adversarial Science

Adversarial science—sometimes referred to as litigation science or junk science —has a bad name. It is often associated with the tobacco industry\u27s relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced. In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like oil spills as part of a process known as natural resource damage assessment ( NRDA ). During this process, lawyers engage scientists to advance advocacy positions, either to support or to defeat claims for natural resource damages. The NRDA process presents an unparalleled opportunity to intensively study the effects of toxic exposure to ecosystems at the very moment those impacts are unfolding. At the same time, the science that emerges is adversarial; it suffers from the same conflicts of interests and perceptions of bias as other result-oriented science. While scientists and legal scholars have written extensively about the conflicts of interest embedded in other forms of policy-relevant science, surprisingly little scholarly attention has been given to the influence of litigation on NRDA science or the implications of that influence on the broader scientific understanding of ecological harms. This Article casts a bright light on adversarial science, using the scientific literature to expose the influence of litigation on NRDA science. More importantly, this Article—while acknowledging the risks of adversarial science—urges policymakers to embrace it. Ultimately, this Article offers solutions that both release adversarial science from traditional clouds of suspicion and allow adversarial science to inform public policy on the long-term harm from toxic exposure

The Flipside of \u3ci\u3eMichigan v. EPA\u3c/i\u3e: Are Cumulative Impacts Centrally Relevant?

This Article explores the flipside of Michigan--where the Court\u27s logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and--like cost--deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate. In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget. In support of that thesis, this Article proceeds in three parts. Part I examines the Court\u27s reasoning in Michigan with the goal of creating a blueprint for deciding when a factor is “centrally relevant” to regulatory decisionmaking. Part II then shows why cumulative impacts so permeate the set of concerns embodied by environmental law that they qualify as centrally relevant factors that ought to drive regulatory choices. Finally, Part III provides some examples of how focusing on cumulative impacts through the judicial review framework could reinforce the public health missions of environmental laws. Indeed, in the struggle to understand the impacts of a climate changed world on the availability, vulnerability, and distribution of resources, this lens of cumulative impacts will be even more critical to the mission of sustaining healthful communities