THE PROBLEMS AND PROSECTS OF ENVIRONMENTAL LAW
PRINCIPLES OF ECOLOGY—ACALL FOR ECOSYSTEM MANAGMENT
A New Ecology For the 21St Century (Botkin)
§ The difficulty is simple: once we have acknowledged that some kinds of change are good, how can we argue against any alteration of the environment?
§ “It is only by understanding how nature works and applying this understanding in our management of nature that we can successfully achieve our goal: People living within nature, neither poisoning it nor destroying its reproductive capabilities”—In other words Sustainability
§ “Under the new management, a sustainable harvest is one whose long term time averaged yield does not decline, but the rate of harvest may vary from time period to time period and may have to vary in the short run in order to lead to long term sustainability”
§ Used to be presumed that nature, before it was trampled by humans, existed in a pristine, steady state, now it is thought that change has always been present in nature.
§ Challenge is managing something that is always changing.
A Sand County Almanac (Leopold)
§ “A system of conservation based solely on economic self interest is hopelessly lopsided. It tends to ignore many elements in the land community that lack commercial value, but that are essential to its health”
§ “The solution: Quit thinking about decent land use as solely an economic problem. Examine each question in terms of what is ethically and esthetically right, as well as what is economically expedient. A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.” This is the fundamental shift we need in order to achieve true ecosystem management.
§ Problem is that under our current systems of management we see land as a privilege (something to be taken), we do not see land as something we have an obligation to.
§ A land ethic should assure the continued existence of natural resources
§ Problem in ethic of conservation is that many members of the land community have no economic value—conservation assumes falsely that the economic parts of the biotic clock will function w/o the noneconomic parts—need to think more seriously about interdependence.
The Balance of Nature? Ecological Issues….(Stuart Pimm)
§ Long term population ecology must be community ecology.
§ Community theory is dynamic community theory.
§ Pimm has seen stability to mean at least 5 different things:
§ Resilience: how fast a variable that has been displaced from equilibrium returns to it.
§ Persistence: how long a variable lasts until it is changed into a new value
§ Resistance: the consequences when a variable is permanently changed.
§ Variability: the degree to which a variable varies over time
§ Problems arise because ecologists are often using different languages and studying different things.
Ecosystem Management (USGA Report and Notes)
§ The solution to our imbalance of management is to take a holistic approach an approach that takes the entire ecosystem into account—ecosystem management
§ While the main enviro statues have slack in them, and the agencies have discretion to pursue ecosystem management, the 4 national agencies run on completely different tracks and mandates. Thus a cross discipline and holistic approach such as ecosystem management gets frustrated very easily.
§ “Perhaps we should thus scrap the regulation system we have now and create a super agency that does all land management.” [I completely agree with this concept!] § Since the late 80s, many federal agency officials, scientists, and natural resource policy analysts have advocated a new, broader approach to managing the nation’s land and natural resources called “ecosystem management.” This approach recognizes that plant and animal communities are interdependent and interact with their physical environment (soil, water, and air) to form distinct ecological units called ecosystems that span federal and nonfederal lands
§ Why we have not adapted ecosystem management principles:
§ Past Legislation and conditions have created Production Oriented Incentives
§ Forest managers depend on timber sales for funds—for many years Congress specified target levels of timber to be harvested. Thus funding is one reason that some state and local governments have supported the continued production of high levels of natural resource commodities from federal lands
§ The adverse effects on local communities (of limiting logging etc) have created intense ecological and economic conflicts over federal land management.
§ Confusion exists over the goal of ecosystem management
§ Ecological and socioeconomic data are inadequate
§ Existing Federal Land Management Framework hampers federal interagency coordination.
§ Even with these problems Ecosystem Management may be a Promising next step for Federal Land Management. A growing number of agency officials, scientists, and natural resource policy analysts believe that a new, broader approach is needed to manage lands and natural resources. This would change these agencies’ approach to fulfilling their stewardship responsibilities through a better scientific understanding of these mandates’ relationship to one another.
§ From 1992-94 all four of the primary federal land management agencies have independently announced that they are implementing an ecosystem approach to managing their lands (new forest service regs exemplify this)
§ In 1993 the Report of the National Performance Review suggested the President issue an executive order establishing ecosystem management policies across the federal government.
HISTORICAL FOUNDATIONS OF PUBLICLANDS AND ENVIRONMENTAL LAWS
Factors at Understanding the People, Events, and Laws Creating the Institutions and Actors in Natural Resources Administration and Environmental Protection throughout history:
§ Creation and Disposition of the Public Domain Lands
§ Settlement and Resource Development
§ Conservation and Public Land Management
§ States vs. Federal Authority
Notes on the push west and colonial practices in notes
§ Public Domain (or common lands)—Lands held by the federal government until withdrawn for some purpose
§ Public Lands—land already taken for public purpose
The Preemption Act (1841)
§ The purpose of the Act was to sell the public domain and add more farmers and stability to the nation. Simply stated the Preemption Act established the right to purchase land from the public domain into private use. The following individuals could preempt:
§ The head of a family
§ A citizen or has declared intent to be a citizen
§ Individuals who could preempt could purchase up to 160 acres at $1.25 an acre (this could not be sold)
§ The Act really set up a basis for distributing funds between the states and feds (provided money for education and infrastructure)
§ First in time governs
§ This was really the first statue dealing with land management on a national scale
The Homestead Act of 1862
§ This statue was a follow up to the Preemption Act and was designed to get individuals out to the free states to populate them (to curb the growth of slavery)
§ “Any citizen of the US (over 21) who has never borne arms against the US, or has served I the US army shall be entitled to unappropriated lands where the person may have filed a preemption claim
§ The title to the land is not given out until 5 years later. Thus the government retains a right to the land if the person leaves permanently or for a period greater than 6 months.
§ This Act was followed by the Enlarged Homestead Act of 1909 which simply increase the size of the grants
Respecting Water Rights on Public Land Act (1866)
§ The right of way exists for the construction of highways over public lands that are not reserved for public uses
§ If the construction of canals, etc injure or damage the possession of any settler on the public domain (of his water), the party committing such injury shall be liable to the injured party.
§ This Act helped push infrastructure westward and aided the widdleing of the public domain
1872—Yellowstone Park Act
§ Reserved and withdrawn from settlement lands that now occupy the Yellowstone area
§ Set apart and dedicated as a public park or pleasuring ground for the benefit and enjoyment of the public (I think this is the oldest national park)
1872 Mining Act
§ Declared all valuable mineral deposits to be free and open to exploration and purchase. This law has not been changed.
Reservation and Management of the Public Lands
Creative Act—The Forest Reserve Act of 1891
§ The President may set apart and reserve in any State or territory any public land bearing forests in any wholly or in part covered with timber or undergrowth as public reservations.
The Organic Act of 1897
§ Founding authority for the US Forest Service (Interior will manage)
§ Three purposes of the Act
§ Improve and protect forests as designated under the Creative Act
§ Secure a favorable conditions of water flow
§ Provide a continuous supply of timber for use by US citizens
§ The Act solely viewed the forest as a material resource
Transfer Act of 1905  § Transferred regulation of FS to Department of Agriculture
§ Provided that FS use a decentralized strategy, so decision could be made locally which would provide stability and planning
§ Gifford Pinchot (1907)(friends with T. Roosevelt) wrote letter for secretary of Agriculture who signed it as his instructions. The letter set the tone of the basic
In general, to persuade a court to review an agency action a plaintiff must establish that:
§ A court has jurisdiction
§ The claim is reviewable
§ The plaintiff has standing (see below)
§ The claim is ripe and
§ The court can redress the wrong that is claimed
The Administrative Procedure Act
§ The APA directs the court to set aside agency action if:
§ it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
§ Substantial deference is afforded to an agency’s interpretations of its own regulations and agency action is presumptively valid.
§ But the court should not defer to an agency interpretation that contradicts the plain language of a regulation.
§ The focal point for judicial review is the administrative record in existence, not a new record made initially in the reviewing court. Evidence outside the record may be considered for certain limited purposes, e.g., to explain the agency’s action or to determine whether its course of inquiry was inadequate.
Overton Park (US 1971)
Facts: Statute prohibits Sec of Transportation from authorizing federal funding for construction of highways through public parks if a feasible & prudent alternative route exists. If there is no feasible & prudent alternative, the Secretary may only approve funding if all possible planning to minimize harm’ to park is considered. Here, the Secretary approved 6-lane expressway through park without any findings of fact or indication of why no other feasible or prudent alternatives were considered. Sec said he did not need to show any independent findings.
§ The issue at hand is statutory interpretation (an issue of law), but the court cannot determine how the secretary decided on his action. Thus, the court remanded the case to the lower court so that a decision could be made on the full administrative record that was before the Secretary at the time he made his decision.
More of an adjudication, not making a rule, this is a discrete decision. A decision to say that you either do or don’t get the money. Applying a rule to a certain set of facts.
Federal action that can be challenged if there is law to apply.
Discusses the possibility that some decisions are not reviewable at all.
If there is a statutory prohibition on judicial review, no review.
Areas where agency determinations are “committed to agency discretion by law.” (term of art)
Can review agency discretion if the parameters of the discretion are defined.
However, if there is so much discretion, that there are no parameters to define the parameters. “Go out and do good.”
Use of funds not reviewable.
Another issue: were the appropriate procedures followed?
Agency decision can be sent back if decision is arbitrary and capricious or if the agency failed to conform to procedures.
Range of Possible Standards of Review
No review to the judges making their own decisions entirely (de novo).
In between is where most review happens: arb and cap or substantial evidence
How much should the judge defer to the agency?
1.Standing has 3 elements and it goes to whether the particular party asserting the claim may do so before the court
§ In the pleadings, the P has to establish the elements of standing.
§ Standing contains three elements:
§ First, the plaintiff must have suffered an injury in fact—an invasion of a legally-protected interest which is:
§ Concrete and particularized and
§ Actual or imminent, not conjectural or hypothetical
§ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court
§ Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision