Distributed Graduate Seminars: An Interdisciplinary Approach to Studying Land Conservation

Adapting to the many changes associated with climate change is an increasingly important issue and nowhere more so than in efforts to conserve private land. Interdisciplinary distributed graduate seminars conducted in Spring 2011 at six universities investigated whether current land conservation laws and institutions appear up to the task of protecting land in the context of change and avenues for improving the adaptive capacity of such institutions.Distributed graduate seminars are courses coordinated among multiple universities. They begin with a core of interested faculty who organize graduate students at their universities to collect or analyze dispersed data. This article gives a brief introduction to distributed graduate seminars and then details the experience and insights gained conducting such a seminar for land conservation and climate change. The distributed graduate seminar offers advantages by allowing for the synthesis of diverse data, the integration of multiple disciplinary perspectives, and the person-power enabled by student research. For students, the distributed seminar provides opportunities to engage with a broader academic community, benefit from new perspectives, and contribute in a meaningful way to a large endeavor

Building Better Conservation Easements for America the Beautiful

In January 2021, the Biden Administration endorsed the goal of protecting 30% of the nation’s lands and waters by 2030 to conserve biodiversity and help curb greenhouse gas emissions. The Administration’s initial report on this “America the Beautiful” initiative, issued in May, indicates that federally-deductible conservation easements are likely to play an important role in its implementation. This essay addresses whether and how such easements should be counted in this process. This matter is of great importance. Donations of conservation easements, by which landowners receive generous federal tax deductions if they restrict the use of their properties in perpetuity in the interest of conservation, cost American taxpayers billions of dollars annually in foregone revenue. In addition, growing reports of abuse and other developments raise serious questions about the effectiveness of deductible easements in achieving durable conservation outcomes. This essay outlines the fundamental problems plaguing the deductible conservation easement program. It compares practices regarding deductible conservation easements with the protocols employed in various government conservation easement purchase programs. It concludes with specific suggestions for making deductible easements an effective tool for achieving the America the Beautiful goal. Simply accelerating the pace of conservation easement donations is not enough— to achiev[e] durable outcomes that meaningfully improve the lives of Americans,” better conservation easements need to be built

In Defense of Ecosystem Services

It is a great honor and pleasure to deliver the Garrison lecture at the Pace University Law School, especially on an evening during which we have paid fitting tribute to the lives of two giants of environmental law and policy, Joe Sax, and David Sive. I chose the topic of ecosystem services for this auspicious occasion for three reasons and to answer three questions. First, the path of ecosystem services as a theme in environmental law and policy spans my practice (1982-1994) and academic (1994-present) careers. The importance of nature to human well-being seems so obvious one would think it has been front and center in environmental law and policy since the beginning, but, until recently, that has not been the case. Lately, however, the ecosystem services framework has catapulted this theme into prominence, if not dominance, in environmental discourse.1 So my first question is, what accounts for the meteoric rise of the ecosystem services framework? Second, the assent of the ecosystem services framework provides an example of how a growing network of researchers, academics, practitioners, and policy-makers can push an idea from the sidelines into the mainstream. The second question, thus, is, how did this network succeed in advancing ecosystem services from science to policy? The last reason I chose ecosystem services is that the concept exemplifies the position I have staked out as a member of the radical middle. The radical middle isn\u27t just about compromising between the left and the right -- or however you want to describe the “sides” in environmental policy -- it\u27s about challenging their views and coming up with alternatives that work better. Ecosystem services does that, which is likely why, as I will discuss, it has begun to receive some pushback. So the third question is, what is the nature of that pushback, and is it justified

Can A Multi-Species Habitat Conservation Plan Save San Diego\u27s Vulnerable Vernal Pool Species?

The Endangered Species Act2 (hereinafter “ESA” or “the Act”) protects some of the rarest and most charismatic mammals on earth, including polar bears, wolves, jaguars, and orcas. The ESA also protects less conspicuous species and their habitats. Not all species are equal under the law; for example, plants are afforded substantially less protection, and the Act excludes pest insects if their protection “would present an overwhelming and overriding risk to man.” But the ESA does provide a remarkable degree of taxonomic equality for most covered species, generally treating bears and burying beetles as equals. This equality infuriates opponents of the Act, such as trade associations and water suppliers who are not persuaded that Delhi Sands flower-loving flies and Santa Ana suckers merit the same conservation efforts as bald eagles and Florida panthers. Yet the Act recognizes that even small, non-charismatic creatures may provide essential ecological services

Among the Rarest: Saving the Eastern North Pacific Right Whale

The North Pacific Right Whale (NPRW) is perhaps the rarest, most endangered large whale species in the world. Only about thirty surviving individuals make up the eastern population, which lives in waters around Alaska. This note aims to highlight the crisis facing eastern NPRWs and the steps that can be taken to support the recovery of this rare whale. The paper first presents information on the history of the species and its importance. It next examines existing international and domestic U.S. legal regimes as well as a pending petition to revise NPRW critical habitat off of Alaska. Finally, it advances six recommendations to support the eastern NPRW\u27s recovery: (1) more data collection should be facilitated; (2) the precarious situation of the NPRW should be shared to raise public awareness and support for protection measures; (3) the critical habitat designation should be expanded, but to a lesser extent than the petition has requested; (4) a whale-ship interaction risk reduction regime should be adopted; (5) whale-friendly fishing gear should be widely adopted; and (6) commercial whaling must remain illegal. It argues that with the right protections, eastern NPRWs can avoid extinction

The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law

I. THE HIPPODROME OF THE GODS: RACING AGAINST ECOLOGICAL AND EVOLUTIONARY APOCALYPSE....................................................................... 304 II. ACROSS THE APOCALYPSE ON HORSEBACK: LEGAL RESPONSES TO BIODIVERSITY LOSS .................................................................................... 310 A. OVERKILL ........................................................................................... 310 B. ALIEN INVASIVE SPECIES ..................................................................... 316 C. HABITAT DESTRUCTION AND PUBLIC LAND MANAGEMENT .................. 321 1. ISLAND BIOGEOGRAPHY .............................................................. 321 2. PUBLIC LANDS MANAGEMENT..................................................... 325 III. THE ENDANGERED SPECIES ACT: FROM PRIVATE LANDS TO GLOBAL COMMONS .......................................................................................... 329 A. ENDANGERED SPECIES ACT MECHANICS .............................................. 330 1. LISTING ENDANGERED AND THREATENED SPECIES....................... 330 2. CRITICAL HABITAT ..................................................................... 333 3. INTERAGENCY CONSULTATION .................................................... 333 B. HABITAT CONSERVATION ON PRIVATE LANDS...................................... 335 C. ΑΡΚΤΟΎΡΟΣ: CLIMATE CHANGE IN THE “LAST GREAT WILDERNESS”... 340 IV. THE LAW OF BIODIVERSITY CONSERVATION AND CLIMATE MITIATION IN THE ANTHROPOCENE ............................................................................................................................ 347 A. A NEW EPOCH..................................................................................... 347 B. AN ENVIRONMENTAL ETHOS INTENDED TO ENDURE FOR AGEST TO COME…353 C. ENVIRONMENTAL PROTECTION ON THE LAST PROMONTORY OF THE CENTURIES................................................................................... 354 1. REVITALIZING ENVIRONMENTAL LAW ......................................... 354 2. NEPA AS AN ENVIRONMENTAL CHARTER ................................... 357 3. PRAGMATIC MODESTY ................................................................ 360 4. FOR NOWADAYS THE WORLD IS LIT BY LIGHTNING ..................... 36

Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change

To avoid extinctions and other harms to ecological health from escalating climatic change, scientists, resource managers, and activists are considering and even engaging in “assisted migration” - the intentional movement of an organism to an area in which its species has never existed. This Article explores the profound implications of climate change for American natural resource management through the lens of this controversial adaptation strategy. It details arguments regarding the scientific viability and legality of assisted migration under the thicket of laws that govern natural resources in the United States. The Article asserts, however, that the fundamental tensions raised by this strategy are ethical: to protect endangered species or conserve native biota; to manage ecological systems actively or leave nature wild and uncontrolled; and to preserve resources or manage them to promote their fitness under future conditions.The Article explains why contemporary natural resource law’s fidelity to historic baselines, protecting preexisting biota, and shielding nature from human activity is increasingly untenable, particularly in light of climate change. Active, anticipatory strategies such as assisted migration may not only be permissible but even necessary to avert substantial irreversible harm to ecological systems. Scientists and resource managers should focus on developing scientific data to aid analyses of the risks and benefits of assisted migration in particular circumstances. To help develop such data while minimizing ecological harm, the Article proposes provisionally limiting experimental translocations to situations where translocation is technically and economically feasible, and where the species is endangered, ecologically valuable, and compatible with the proposed site.More broadly, assisted migration illustrates how the institutions and goals of natural resource law must be changed to better reflect a dynamic, integrated world. Climate change forces a radical reconsideration of the aims, foci, and standards of natural resource management. Accordingly, the crucial project of natural resource law must be improving governance by cultivating agency accountability and learning to better manage uncertainty, promoting opportunities for inter-jurisdictional collaboration, and fostering public information and deliberation over the tradeoffs of strategies like assisted migration and the resource values that matter