Governing Nature: \u3cem\u3eBambi\u3c/em\u3e Law in a \u3cem\u3eWall-E\u3c/em\u3e World

Humanity has disrupted many of the fundamental processes that shape nature worldwide. Virtually no places remain unchanged. Many ecosystems have moved far from their historic conditions and no longer support native species or traditional human uses. In the Anthropocene, a new geologic era dominated by the human impact on Earth, these problems will continue to get worse. In response, humans are intervening in ecosystems at a massive scale. This Article argues that, even as humanity engages in an unprecedented level of ecosystem management, existing environmental governance structures are ill suited to manage this new nature. Ecologists who focus on restoring ecosystems have begun to abandon efforts to recreate idealized historical ecosystems, recognizing that such efforts will fail. Instead, they embrace new approaches that acknowledge continuing human impacts and seek to shape impacted habitats in a way that benefits both human and other life. This Article examines the new ecological approaches, using their migration of purpose and approach to illuminate ecosystem management in the Anthropocene and the new obligations it places on environmental law. To sharpen this focus, the Article considers three case studies of managed ecosystems, detailing the extent to which humans are controlling nature. The case studies suggest that the existing literature seriously underestimates the magnitude of the questions society will soon face. The Article concludes that although we face the daunting prospect of reshaping the very fabric of nature, we lack the governance structures to decide what shape it should take. Society will need environmental law governance that can answer fundamental questions about humanity’s role in managing nature at all scales. This Article proposes several starting principles to encourage legal scholars to address this need

Ditching Our Innocence: The Clean Water Act in the Age of the Anthropocene

Humanity has entered the Age of the Anthropocene, a geologic era marked by the emergence of human activity as the single most dominant influence on Earth’s environment. Every ecosystem shows signs of anthropogenic influence, and the environments we experience everyday are often shaped almost entirely by human actions and decisions. The new discipline of reconciliation ecology recognizes this reality and suggests that we must manage the new habitats we create in order to protect species diversity and ecosystem services. But the 2015 rule defining the jurisdiction of the Clean Water Act explicitly excludes many manmade environments, including many artificial lakes, farm ponds, reflecting pools, and most ditches, treating these landscape features as faux nature somehow unworthy of protection. This treatment is a marked departure from past Environmental Protection Agency and U.S. Army Corps of Engineers practices, which allowed for consideration of such places on a case-by-case basis. This departure finds no support in the Supreme Court precedent leading up to the new rule and seems to be based entirely on a shortsighted view of these places as somehow unimportant to protecting the waters of the United States. Based on the law and science surrounding ditches, we conclude that such places merit protection under the Clean Water Act

Adapting to 4 Degrees C World

The Paris Agreement\u27s goal to hold warming to 1.50-2 0 C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 40 C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 40 C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions

Priorities for synthesis research in ecology and environmental science

ACKNOWLEDGMENTS We thank the National Science Foundation grant #1940692 for financial support for this workshop, and the National Center for Ecological Analysis and Synthesis (NCEAS) and its staff for logistical support.Peer reviewedPublisher PD

Priorities for synthesis research in ecology and environmental science

ACKNOWLEDGMENTS We thank the National Science Foundation grant #1940692 for financial support for this workshop, and the National Center for Ecological Analysis and Synthesis (NCEAS) and its staff for logistical support.Peer reviewedPublisher PD

An Evolutionary Theory of Administrative Law

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I argue that an evolutionary framework provides an informative framework for understanding administrative legal change. I provide three case studies that demonstrate the administrative evolution of the Endangered Species Act. In spite of tremendous advances in conservation, fundamental changes in scientists’ understanding of human impacts on the natural world, and increasingly strident clashes over private property rights and endangered species, the Act has remained largely unchanged for the last thirty-five years. In a functioning legislative system, the Act would have been amended to accommodate many of these changes. Instead, the case studies show a mechanism of legal change through agency action analogous to the mechanisms underlying biological evolution. Other commentators have argued the administrative state stymies evolution of the law, but this research contradicts that view. Applying an evolutionary framework to administrative actions creates a new theory of administrative evolution of the law, placing administrative analysis within the long tradition of evolutionary approaches to legal change used by commentators from Aristotle to Holmes. In contrast to traditional normative theories of administrative law, an evolutionary approach focuses on how change progresses over time. This theory of administrative evolution of the law also casts new light on a host of normative questions, from the role of judicial review to improvements in agency decision-making. Considering administrative actions within the broader context of the legal evolution promises a fruitful new approach to analyzing administrative law