Wednesday, November 21, 2012
Last week, Holly Doremus and Dan Tarlock posted Can the Clean Water Act Succeed as an Ecosystem Protection Law? on SSRN. The article, which is forthcoming in the George Washington Journal of Energy and Environmental Law, examines the efficacy of the Clean Water Act's water quality standards (as opposed to its technology-based controls) as legal mechanisms to support ecosystem protection. The authors use California's Bay-Delta ecosystem as a case study. Their conclusion, based largely on the failures of Bay-Delta restoration efforts, is that the Clean Water Act will not reach its potential without significant reform.
There's lots of good stuff in the article, including, at the end, an ambitious vision for comprehensive Clean Water Act reform, but one passage in particular raises some intriguing questions. Here's the passage:
In legal and institutional terms, we view the Bay-Delta as a "best-case" scnario for the CWA. California, unlike some other states, is a willing partner in ecosystem protection. EPA has historically been more willing to push its authority in the Bay-Delta than elsewhere, and recently announced that, in concert with state partner agencies, it is considering what steps it can take to better protect Bay-Delta water quality. State law fills some of the most important gaps in the CWA. Furthermore, the state agency which implements the CWA and the state's analogous water quality law also implements the state's appropriative water rights system, providing institutional opportunities to integrate management of water quality and water quantity. The state's courts have pushed the agency in that direction, ruling decades ago that water rights can, and indeed must, be adjusted if necessary to protect water use.
That's all quite true, and it's all unquestionably important. But I wonder if the geography of water use also plays a crucial role in determining what counts as a best-case scenario for CWA implementation. Here, it seems to me, the Bay-Delta restoration efforts may face two huge challenges that aren't always present.
The first is that very few of the people who rely upon Bay-Delta water have any real contact with the Bay-Delta as an ecosystem. That means they may not perceive any direct benefit from environmental restoration, or even find the alleged problems readily cognizable. While it's a hard point to prove, I think that geographic separation does matter. In a recent study of a much smaller-scale ecosystem restoration project in Maine, I found that many business leaders were receptive to a CWA-driven restoration project in part because they lived in (and, in many cases, tried to draw customers or employees to) the larger ecosystem affected by the project. That attitude had legal significance: the willingness of the business leaders to support restoration efforts allowed regulators to craft an innovative permitting regime, and the absence of lawsuits from regulated entities allowed that regime to quickly go into effect.
The second potential challenge is scale. We sometimes tend to assume (at least I used to assume) that in larger, higher-profile projects like the Bay-Delta restoration effort, the influence of environmental advocates will be at its peak, and that, as a direct consequence of that advocacy, the government agencies responsible for environmental protection will be most likely to assume an aggressive posture. Certainly there has been quite a lot of environmental group advocacy focused on the Bay-Delta. But it's quite possible--some of my recent research has me wondering if it's likely--that environmental protection measures are often stronger in smaller, lower-profile controversies. There, the influence of environmental groups may be reduced, but the influence of resource users may also be significantly reduced, leaving government regulators as the most powerful influence. And if those government regulators have an internal commitment to environmental protection--in other words, if they're not just the external pressure-driven automatons posited by some more extreme versions of public choice theory--the reduction of outside pressures might lead to more protective outcomes.
All of this is rather hard to put to the test. But at the very least, we have more case studies unfolding. Most notably, EPA is now seriously attempting, on a scale as grand as that in the Bay-Delta, to use the Clean Water Act's water quality provisions to drive Chesapeake Bay restoration. Similarly, across the country, a smattering of smaller-scale water quality-based initiatives continue to unfold. Perhaps in another ten years, those efforts will give us more insight into what makes a best-case scenario for CWA-based ecosystem restoration.
Yesterday, the U.S. Supreme Court granted cert in its third takings case of the term, Horne v. U.S. Department of Agriculture. This one involves the procedural issue of whether the federal government is subject to suit in a regular federal district court over its involvement in the annual raisin crop market or, as the Ninth Circuit Court concluded below, only in the Court of Federal Claims. Lyle Denniston summarized the case on SCOTUSblog here.
Monday, November 19, 2012
I recently had the pleasure of participating in the Aldo Leopold Foundation's Land Ethic Leader Program here in Baton Rouge. The program "is rooted in Leopold's own method of engaging his family and students in developing a personal land ethic - observing the natural world through scientific inquiry, participating in purposeful work on the land, and reflecting on their experiences. Together, these activities can bring prople to a new understanding and respect for the landscape around them."
First of all, I was thrilled that LSU was selected to participate in the program, as only a few sites were selected nationally for this first round of workshops. Being from the deep south, I have a lifelong perspective on the peculiar relationship of the people with the land. Hunters, fishers and other outdoorsmen and women abound, providing a strong cultural connection to the beautiful natural landscapes of the south and its stunning biodiversity relative to other parts of the country. Yet these values often clash with cultural perspectives on the need for arguably unassailable private property rights and as little government regulation as possible. One only has to witness the rapid urban sprawl consuming southern landscapes to see this. The south has long been hungry to catch up with the rest of the country on the economic development front, dating all the way back to reconstruction. Yet the lack of adequate land use planning - due in large part to resistance to even local government planning restrictions - has exacerbated major threats to southern landscapes. Comparisons with land use planning in other parts of the country, such as the Pacific Northwest and the Northeast, bear this out.
Nonetheless, there is a strong core upon which to build a land ethic. Louisiana has particularly beautiful landscapes: upland forests and wetlands, ridgelands, coastal estuaries and wetlands, and a major deltaic riverine ecosystem. Though there are large trucks aplenty on the highways, many of them are carrying ATVs, boats, and other "facilitators" of outdoor activities. You need to protect the land to be able to play on it, which people here understand. In addition, Louisiana has been forced to grapple more directly with the consequences of land degradation earlier than many other regions, as its land is being lost at astonishing rates each year due to subsidence and sea level rise, and with each and every hurricane or other storm event. Louisiana's 2012 Coastal Master Plan implicitly highlights the consequences of failing to maintain a strong land ethic in the past, and how this has directly placed the people of Louisiana in harm's way - whether it be due to increased storm surge in New Orleans due to rapid development and filling of wetlands or otherwise.
The Land Ethic Leader program began with a showing of Greenfire, the compelling documentary on the life of Aldo Leopold - one of the preeminent conservationists of the last century. Leopold himself was an ardent hunter and fisher. Yet his transcendent moment in his undertstanding of humankind's relationship to land came as he shot a wolf and watched a "fierce green fire dying in her eyes." The next day, we met at the LSU Burden Center, which is a beautiful 440 acre tract of land upon which a number of research activities take place. We started the day with an outdoor observation activity, then participated in a series of discussions on land-related literature, such as "Learning the Trees" by Howard Nemerov and "Lines in the Mind" by Donella Meadows. These discussions were designed to help us learn how to facilitate land ethic discussions in the classroom or elsewhere. Day two took us to the Bluebonnet Swamp Nature Center, which I am thrilled to say is only a couple of miles from my home. The Center is "a 103-acre facility dedicated to conservation, education, recreation and tourism. It houses an award-winning, 9500-square-foot building filled with live animal exhibits; photographic presentations of the site's flora and fauna; natural artifact and mineral displays . . . Over a mile of gravel paths and boardwalks link varied habitats such as the cypress-tupelo swamp, beech-magnolia and hardwood forests. Wildlife is plentiful at Bluebonnet Swamp, including hundreds of bird species utilizing the site throughout the year . . . While snakes and turtles are commonly seen from the trails, raccoons, rabbits, opossums, armadillos, squirrels, foxes, coyotes, deer and otter are also known to inhabit the site." We began the day by pulling invasive species out of the swamp, and continued discussions of such works as "Street Trees" by Melody Chavis and "Thinking Like a Mountain," by Aldo Leopold. Finally, we brainstormed about projects that we could take back to our respective departments on campus (or in our respective organizations). Overall it was a fantastic learning experience, and I feel far more equipped to lead discussions on land ethic issues going forward. I am even contemplating a course on "Land Ethics and the Law," whereby we discuss various aspects of land use, environmental, natural resources, and other areas of law and policy, and their intersection with our use and conservation of precious and finite land resources.
In my own life I can look back and see that a simple lack of knowledge and information prevented me from having an appreciation of land ethics and a responsible relationship with the land - not political ideology. I believe that it is the same for many others in the south, who simply have not had an opportunity to be exposed to the kind of information that shapes one's perspective on our relationship with the land. Given, however, that many people in the south already experience this through their outdoor activities - though they may not describe it in an academic sense - if information on better land ethics can be adequately transmitted to the people, no ethic will have ever spread farther and more quickly.