Disasters and ecosystem services deprivation: from Cuyahoga to the Deepwater Horizon.

• Author: Hirokawa, Keith H.

The term "ecosystem services" refers to the "wide range of conditions and processes through which natural ecosystems, and the species that are part of them, help sustain and fulfill human life." (1) Water filtering in wetlands, wildlife nursery functions in habitats, and carbon sequestering in vegetation are examples of the valuable services provided by functioning ecosystems. However, these examples also illustrate the types of ecosystem services that have generally been ignored or undervalued in the marketplace. (2) These services "have no market value for the simple reason that no markets exist in which they can be exchanged." (3)

Not long ago, Robert Costanza and his colleagues created a buzz by attempting to calculate the economic value of the world's ecosystem services. (4) They estimated that the annual value of selected ecosystem services throughout the world exceeded the global Gross National Product by 1.8 times, making it "abundantly clear ... that ecosystem services provide an important portion of the total contribution to human welfare on this planet." (5) One of the main criticisms of Costanza's project alleged an inattention to detail: perhaps due to the breadth of the project, or a lack of information, Costanza's team admittedly projected general ecosystem services values onto similar ecosystems across the globe, without adjusting for particular locational differences in ecosystem types and functions. (6) The interesting question remains, of course, whether a more accurate and specific accounting would render Costanza's estimate unrealistically high or hopelessly low.

The recent oil spill from the Deepwater Horizon offers a significant opportunity toward answering this open question. On April 20, 2010, an explosion on the Deepwater Horizon oil rig resulted in the release of substantial amounts of oil into the Gulf of Mexico, threatening the viability of some of the world's most essential ecosystems. (7) Almost 90,000 square miles of federal waters were immediately closed to fishing. (8) Communities along hundreds of miles of shoreline, bayous, and bays scooped the consequences of this spill from their shores, as thousands combed the Gulf in search of wildlife victims to save. It is estimated that 4.9 million barrels of oil were released before the well was capped on July 15, 2010. (9) This incident has been labeled one of the worst human-caused environmental disasters in American history. (10) A $20 billion fund has been established to begin the recovery effort, (11) but given the importance of the Gulfs ecosystem services to the region, and to the world, there is some concern that the fund will be depleted too quickly. (12)

The response to the Deepwater Horizon disaster has launched a large-scale investigation into the character and needs of the living technology through which the Gulf of Mexico and its ecosystems provide services that are essential to human well-being. With this in mind, this essay considers the relationship between environmental disasters and the process of valuing ecosystem services. Environmental disasters require us to confront and interact with a changed environment, particularly because they often compel a reconstruction of our understanding of nature and its processes, a reformulation of the value we perceive in nature, and a recasting of our approach to regulating the interaction of human activities and the environment. The ecosystem services approach provides critical insights in this endeavor, and through this approach, the Deepwater Horizon disaster can be understood as an opportunity. This essay begins with a discussion of the role of environmental disasters in the development of environmental law, and then introduces ecosystem services research as a method of calculating the ecological, social, and economic value of impaired resources. Finally, this essay considers the opportunities presented by the Deepwater Horizon disaster for ecosystem services research.

1. THE IMPORTANCE OF ENVIRONMENTAL DISASTERS: A BRIEF HISTORY OF ENVIRONMENTAL LAW

   Environmental disasters have played a significant role in determining how we understand and value nature's services. Consider: it is possible (even if unlikely) that there was a time when a colorful surface sheen on the water, or a brownish tint, or even the complete absence of aquatic life, would not cause public alarm. At some point in the industrial culture, ugly and opaque was just how water appeared. (13) Flowing water transports trash, dilutes sewage and spent chemicals, and even absorbs odors and other unwanted materials, and, as such, proximity to water has historically proven an enormous asset for industrial activities.

   In Ohio, the U-shaped Cuyahoga River passes through Akron and Cleveland on its way to Lake Erie. For decades, the Cuyahoga River received storm water overflows and raw sewage discharges, generally caused by inadequate sewage treatment facilities and misuse of those facilities. (14) The Cuyahoga had also provided waste removal service to some of the more prominent stalwarts to Cleveland's economic circumstances: Republic Steel, U.S. Steel, and Jones and Laughlin discharged solids, iron, oil, sulfates, ammonia, acids, and other hazardous materials; discharges from operations at Lamson and Sessions and Sonoco Products caused some sort of reddish tinge. Firestone, B.F. Goodrich, Goodyear Tire Division, Goodyear Aerospace Division, and Diamond Salt contributed discharges of heavy metals, high temperatures, oils, color, and other hazardous materials. (15) Industrial discharges were common and considered ordinary business operations.

   On June 22, 1969, floating, oil-soaked debris ignited on the Cuyahoga River. (16) That the Cuyahoga River burned on this occasion may not be surprising, especially given that the river had burned several times prior to 1969. (17) What was significant, however, was the nation's strong reaction following the fire. In the months (and years) that followed, changes in the local, state, and federal regulation of environmental quality significantly transformed the manner in which the built environment is permitted to interact with the natural environment. (18)

   The 1969 Cuyahoga River fire is not the only environmental disaster in environmental law's history--and as a factual matter, it is likely not even a significant one (19)--but it cannot be denied that the event did, in conjunction with a host of other disasters, act as a catalyst for change. Michael Allan Wolf reminds us:

   Disasters breed environmental law. One can easily trace the origins of several federal statutory schemes to specific ecological calamities. While it would be an exaggeration to isolate one incident and identify it as the sole cause for a statute, we can legitimately ask whether the United States Code would have contained the Air Pollution Control Act of 1955 without the Donora, Pennsylvania disaster, and Los Angeles's poisonous smog; the Coastal Zone Management Act without the Santa Barbara oil spill; the Oil Pollution Act of 1990 without the Exxon Valdez debacle; or the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") without Love Canal. (20) The idea that disasters incentivize changes in environmental law is well-settled. Of course, people do not always die during environmental disasters, habitats do not always fail, and laws do not always follow, suggesting that there is no set formula for determining when a mishap will incite a change in pollution practices. (21) Nevertheless, disasters provide an important and continuing point of reference by compelling us to revise our perceptions on the value of nature and natural processes.

   A few observations might help to contextualize the relevance and complexity of environmental disasters to environmental law in general, and the Deepwater Horizon in particular. (22) First, notwithstanding the existence of some institutional infrastructure intended to control pollution practices, environmental disasters are typically presaged by a legal structure that encourages the culpable activity. In the case of the Cuyahoga, for instance, federal legislation, (23) interstate cooperation, (24) and agency investigation (25) identified the sources of the Cuyahoga's pollution problems. However, although these combined efforts may have signified a new direction in environmental governance, they were inadequate to save the Cuyahoga River. The water quality challenges of the Cuyahoga River resulted from permitted discharges that were largely protected from adverse litigation. (26)

   Second, environmental disasters are not generally preceded by ignorance of the risk. Indeed, long before the Cuyahoga River caught fire in 1969, it was clear that dramatic action was needed to clean the Cuyahoga River. As Joe G. Moore, Commissioner of the Federal Water Pollution Control Administration wryly noted: "Man is destroying Lake Erie. Although the accelerating destruction process has been inadvertent, it is as positive as if he had put all his energies into devising and implementing the means. After two generations the process has gained a momentum which now requires a monumental effort to retard." (27) At this time, the City of Cleveland wisely maintained a "swim if you must" beach bathing program. (28) What seems to distinguish environmental disasters is that an awareness of potential consequences did not result in sufficient preparation, or even investigation into the tools that might be needed to effectively respond. (29) More importantly, perhaps, the possibility of disaster did not prepare us for the deprivation of the resource.

   Third, environmental disasters have proved valuable in forcing a reassessment of the value of "common practices" and common knowledge. Although environmental disasters are not necessarily unique in this regard, as environmental law has proven innovative even without crisis, (30) it is clear that disasters are effective drivers...