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Environmental Law for Biologists
By Tristan Kimbrell The University of Chicago Press
Copyright © 2016 The University of Chicago
All rights reserved.
ISBN: 978-0-226-33371-7
CHAPTER 1
Introduction to Environmental Law
The Chequamegon-Nicolet National Forest covers more than 600,000 hectares (1.5 million acres) in northern Wisconsin. As a national forest, Chequamegon-Nicolet is owned and managed by the federal government. Managing such a large area is by no means easy, considering that the forest contains hundreds of lakes and streams, thousands of miles of roads and trails, and considerable recreational and logging activity. Before being combined in 1998, the Chequamegon and Nicolet forests were officially two separate national forests, both managed by the US Forest Service. As part of its management duties, the Forest Service in 1979 began developing management plans for the separate Nicolet and Chequamegon National Forests. By 1986 the Forest Service had issued final drafts for both management plans.
In writing management plans, the Forest Service cannot simply do whatever it pleases. The federal statute that determines how the Forest Service must manage national forests is the National Forest Management Act (NFMA). Among other things, the NFMA requires Forest Service management plans to "provide for diversity of plant and animal communities." As a consequence, the Forest Service is legally required to protect biodiversity on the lands the agency manages. The NFMA, however, does not give any specifics on how the Forest Service is meant to protect biodiversity, leaving that up to the agency to decide. (The NFMA is discussed in greater detail in chapter 5.)
To protect biodiversity in Nicolet and Chequamegon, the Forest Service made an important assumption: biodiversity could be protected by maintaining the diversity of habitats in the forests. In other words, the Forest Service assumed that habitat diversity could act as a proxy for species diversity. To maintain habitat diversity, the Forest Service management plans identified several representative animal species from the two forests, and then calculated the habitat types and patch sizes necessary to maintain minimum viable populations of those species. The plans then divided the two forests into patches of those habitat types, with the patches being just large enough for the maintenance of the representative species. These relatively small patches were interspersed with other areas slated for logging or road building.
In 1990 the Sierra Club sued the Forest Service over the contents of the Nicolet and Chequamegon management plans. The Sierra Club argued that the Forest Service had not used scientific knowledge gained from conservation biology in creating its management plans. Conservation biology research clearly shows that viable populations are best maintained in large patches, ideally extending over an entire landscape. The management plans by the Forest Service instead fragmented the forests "into a patchwork of different habitats." These small patches were bound to suffer from edge effects, limited migration, small population sizes, and other problems that would make the survival of species on those patches difficult. The Sierra Club maintained that the Forest Service had completely ignored ecological research on population dynamics, fragmentation, edge effects, and island biogeography in writing its management plans. The Sierra Club also claimed that by not using the findings of conservation biology, the Forest Service was not fulfilling the requirement of the NFMA to protect biodiversity.
The Forest Service countered that the hypothesis that fragmentation of a forest from timber harvesting and road building may be detrimental to plant and animal diversity had "not been applied to forest management in the Lake States." The Forest Service added that the theories of conservation biology and island biogeography were of interest, but that "there is not sufficient justification at this time to make research of the theory a Forest Service priority."
A federal appellate court, in Sierra Club v. Marita, agreed with the Sierra Club that the principles of conservation biology are sound. Nevertheless, the court held that the Forest Service management plans for Nicolet and Chequamegon had met the requirement of the NFMA to protect biodiversity. How could the court come to both of these conclusions? As discussed later in this chapter, courts are required to give considerable deference to the decisions made by a federal agency. The court in Marita deferred to the Forest Service in its determination that conservation biology principles were uncertain in their application to Lake States forests in the 1980s. The court further wrote that the Forest Service is "entitled to use its own methodology, unless it is irrational." Consequently, the Forest Service was free to use the management plans it had written, ignoring some of the most widely accepted principles of conservation biology in managing the Nicolet and Chequamegon National Forests.
The Marita case illustrates that in environmental law, scientific rigor is not always considered to be the highest value. Here the court believed that the value of the judicial branch's respecting the decisions of the executive branch outweighed the value of adhering to conservation biology principles. As the rest of the chapter explores, this outcome is far from an anomaly.
Environmental law may be broadly defined as the statutes, regulations, and court decisions that manage the effects of human activity on the natural environment. Managing how humans impact the environment is a hugely difficult undertaking, and the length and complexity of many environmental laws is a testament to that difficulty. To manage anything effectively, you of course have to understand what you are managing. The best way to understand the natural environment is through scientific inquiry. The three branches of the federal government certainly understand this, and they rely on scientists and scientific data when writing and implementing environmental laws. As the Marita case illustrates, however, the three branches also frequently consider factors other than science when writing and implementing those laws. An understanding of environmental law is incomplete without an understanding of how the three branches of government attempt to balance these other factors along with science when managing how humans impact the natural environment.
As will be seen throughout the book, this balancing often results in conflict between science and law. Ecological principles may point to a certain action to protect species or ecosystems, but the law may allow or even require a completely different action. At a more fundamental level, the law frequently calls on science to make value judgments, even though scientific inquiry is ideally objective and without a value system. Science alone cannot decide how much money should be spent to save a species from extinction, or place a dollar value on a single human life. Finally, science is usually an integrative discipline, interested in understanding the interconnectedness of different systems. Statutes, on the other hand, tend to regulate one discrete area at a time. For instance, a specific statute may regulate only marine mammals, or only migratory birds. Because of this focus on one discrete area, statutes are often oblivious to how regulating that one area will influence other areas outside the focus of the statute. The result is that the law treats nature as discrete units that can be manipulated and swapped for each other without impact to other units of nature. As a consequence, the ways in which science and the law attempt to understand and categorize the world are at odds with each other. Each of these conflicts is discussed in this chapter, and they present themselves throughout the rest of the book.
The chapter first explains that Congress often writes environmental statutes to require federal agencies to use science in their decision making, but the statutes rarely indicate how science is specifically meant to be used. This vagueness gives federal agencies flexibility in applying the law, but also allows Congress to hide behind ambiguity when hard decisions need to be made. Next the chapter discusses that although federal agencies are the most adept branch of the government in using science, they are frequently tempted to use the trappings of science to further agency goals. Finally, the chapter discusses how courts defer to the scientific expertise of federal agencies; in other types of cases not involving agencies, however, judges with no scientific training are left to rule on the validity of scientific findings.
CONGRESS
When Congress writes statutes, it quite often includes requirements that federal agencies rely, at least in part, on science in making decisions. Several environmental statutes specifically state that agencies must make certain decisions based on the "best available scientific information." Other environmental statutes do not use such specific language, but imply that only scientific information should be considered when making certain decisions (see box 1.1 for a discussion of the types of problems environmental statutes often address).
BOX 1.1. EXTERNALITIES AND COMMAND AND CONTROL
Many of the environmental laws Congress passes are attempts to deal with externalities. An externality is a cost that must be borne by those who did not choose to incur that cost. For example, in the absence of environmental laws, a factory that releases pollutants into the air would not have to pay anything to release those pollutants, because the atmosphere is a public good and does not belong to anybody. The public, on the other hand, would have to bear the cost of that pollution in the form of health problems and environmental degradation. This is called a negative externality.
There are also positive externalities. A positive externality imposes a positive effect on those who did not choose to receive that effect. For example, a farmer may have a wetland on her property that helps prevent pollution from reaching a river that is used as a source of drinking water by a downstream city. The people of the city benefit from the wetland's providing them with clean water to drink, but the farmer is not paid for that benefit. As a result, the farmer has no incentive to keep the wetland, and may decide to fill it in for additional cropland.
Environmental laws often try to internalize externalities. For instance, a law may impose a tax on facilities that emit pollutants to internalize negative externalities, or a law may pay landowners not to destroy valuable land to internalize positive externalities.
The most common way environmental laws internalize negative externalities is through command-and-control regulations. These regulations are laws that mandate what an individual or business may or may not do. A law that requires a factory to install a specific type of scrubber on a smokestack to reduce its emission of air pollutants would be a command-and-control regulation. More recently, governments have begun creating environmental laws that reduce negative externalities through the use of market-based approaches. Market-based approaches utilize economic markets to provide incentives to reduce negative externalities. The most common type of market approach gives permits to polluters for the right to emit pollutants, and then allows polluters to trade those permits on an open market. The acid rain program (see chapter 10) is the most famous example of a market-based approach to internalizing negative externalities. Command-and-control regulations and market-based approaches are seen throughout the book.
Congress includes requirements for the use of science because science is generally viewed as being objective and nonpartisan. Including a requirement for scientifically based decision making helps make a statute appear legitimate to the public. Congress may also mistrust the politically appointed officials running federal agencies, and statutorily requiring that decisions be scientifically based may be a way to limit the discretion of those officials.
Less charitably, a requirement for decisions based on science may be a way for lawmakers to create cover for themselves to avoid having to take responsibility for unpopular decisions made under the statute. This is problematic because it perpetuates an unrealistic view of what science can accomplish. As mentioned in the introduction to this chapter, science by itself cannot place a value on environmental resources, or determine how to balance the protection of those resources against other needs, such as for development or private property rights. By requiring decisions to be scientifically based, environmental statutes imply that science can do that balancing, and that such decisions can be completely objective and not value judgments. As an example, the Endangered Species Act states that when deciding whether to list a species as threatened or endangered, the Fish and Wildlife Service must make that decision "solely on the basis of the best scientific" information (see chapter 3). While science can provide information on the probability of a species going extinct within a certain number of years, science alone cannot decide at what probability public resources should be spent to reduce the likelihood of extinction. The probability of extinction that society is willing to accept is not a strictly scientific determination. Congress, however, sidesteps deciding the acceptable probability when it requires that listing be based solely on science. Instead, Congress forces the Fish and Wildlife Service to make the decision. Requirements for the use of science in environmental statutes may frequently be a way for Congress to tell federal agencies to make the value judgments that are fundamental to the statute because it is too difficult for Congress to do.
An additional problem with environmental statutes requiring federal agencies to use science is that the statutes rarely indicate how the agencies are supposed to use science, or suggest what kinds of science to use. There are several reasons for this vagueness. In order for a bill to pass Congress, the language often must be ambiguous enough to garner a majority of votes. Any language in a bill that is too specific on how science should be used may lead to a loss of votes. Additionally, lawmakers understand that scientific knowledge is constantly changing, and any specific requirements may quickly become outdated. Finally, lawmakers realize that they are not scientific experts, and they may very well make mistakes if they try to put specific scientific requirements into statutes.
The lack of scientific knowledge in Congress is best illustrated by looking at how bills are drafted. Almost no member of Congress actually drafts bills. Some bills are drafted by lobbyists or federal agencies and then presented to members of Congress. Most commonly, members of Congress rely on the Offices of Legislative Counsel to draft bills. Both the Senate and House of Representatives have nonpartisan Offices of Legislative Counsel that focus entirely on writing legislation at the direction of lawmakers. In this arrangement, members of Congress and their staffs focus on policy, and then work with the Offices of Legislative Counsel in translating that policy into a written bill. Although members of Congress and their staffs oversee the drafting process, it is ultimately the lawyers in the Offices of Legislative Counsel that choose most of the words in a bill, and that choice of words may have great importance in how a law is interpreted and implemented. Courts frequently base their interpretation of a provision in a statute on a single word or phrase in that provision (see box 1.2 for a description of how legal materials are cited and how to perform legal research).
BOX 1.2. LEGAL CITATIONS AND RESEARCH
One of the first things to understand before performing legal research is how laws and other legal materials are cited. Federal statutes are officially compiled in the United States Code (U.S.C.). The United States Code is composed of several titles, and each title has multiple sections (§). For instance, 16 U.S.C. § 703 refers to title 16, section 703 of the United States Code. Section 703 happens to be the first section of the Migratory Bird Treaty Act. Most statutes appear in the code in consecutive sections, although there are exceptions. The citation 16 U.S.C. §§ 703–712 refers to all the sections of the Migratory Bird Treaty Act. To get a good grasp on an environmental statute, there is no substitute for sitting down and simply reading all the sections of the statute. The fastest way to access the United States Code is through the Legal Information Institute website, operated by Cornell University (www.law.cornell.edu).
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Excerpted from Environmental Law for Biologists by Tristan Kimbrell. Copyright © 2016 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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