Alienation and reconciliation in social-ecological systems.

• Author: Eisenberg, Ann M.
• Position: ARTICLES

After rancher Ammon Bundy's forceful occupation of the Malheur National Wildlife Refuge to protest federal "tyranny" in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event's significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of anti-environmental, anti-federal alienation among many working people has been given light consideration in climate scholarship and policy. Yet, this alienation goes beyond Bundy. Altogether, these are social issues within social-ecological systems (SESs) of various scales, which the law must evolve to address.

Using the Malheur occupation as a focal point, I suggest that adaptive governance, also known as adaptive comanagement, is not only appropriate for operationalizing resilience theory in SES regulation, but is also likely a pathway to steer climate governance more toward reconciliation over alienation, reducing the risks conflicts pose to effective outcomes. Scholars have recognized that a shift from environmental advocacy's traditional focus on adversarial approaches is necessary in the face of climate change, but few have focused specifically on how to achieve this shift. Two anti-federal, anti-environmental social movements--the Land Transfer Movement and the War on Coal Campaign--illustrate the impediment this particular form of alienation within SESs has posed to effective climate governance, while also highlighting the longstanding and inhibiting rift between labor and environmental interests.

I examine one case study, the Malheur Comprehensive Conservation Plan planning process, as an illustration of adaptive governance successfully reconciling ranchers, environmentalists, tribes, and several agencies--mitigating anti-federal and anti-environmental alienation and the work-environment rift, to the benefit of federal SES climate adaptation mechanisms (and showing that Malheur was an ironic choice for Bundy's protest). By contrast, a second case study, the administrative rulemaking process that created the federal Clean Power Plan, illustrates how process can fuel alienation and undermine the substance of federal climate policy. Adaptive governance receives more consideration for public lands and adaptation issues than for climate mitigation, but there is potential in the climate mitigation context for the United States Environmental Protection Agency to apply some of the adaptive governance and reconciliation principles illustrated at Malheur.

The research for this Article began prior to the 2016 presidential election and will be published in the weeks following the 2017 inauguration. Although the relevance of much of environmental law scholarship may have been called into question in the new political landscape, this discussion now seems more important than ever in light of the country's ongoing political and cultural divides that continue to stymie efforts to address climate change.

1. INTRODUCTION 129 II. CLIMATE THEORY VERSUS CLIMATE LAw AND POLICY 134 III. THE WORK-ENVIRONMENT RIFf: CURRENT MANIFESTATIONS AND POTENTIAL REMEDIES 141 A. Preliminary Note on Definitions, Demographics, and Methodology 141 B. The Work-Environment Rift 142 C. Two Anti-Environmental, Anti-Federal Social Movements 147 1. The Land Transfer Movement 148 2 The War on Coal Campaign 153 3. The Movements' Commonalities and Significance 155 D. The Curative Potential of Collaborative Decision Making 162 IV. THE MALHEUR REFUGE: A CLIMATE-ERA PLANNING PROCESS? 163 A. Background and the Collaborative Planning Process 164 B. Significance to Climate Govemance 170 V. ADMINISTRATIVE RULEMAKING AND THE CLEAN POWER PLAN: PROCESSU DERMINING SUBSTANCE? 172 VI. CONCLUSION 178 I. INTRODUCTION

   When Ammon Bundy forcefully occupied the Malheur National Wildlife Refuge in Harney County, Oregon, in early 2016, he purported to protest federal "tyranny" and defend the trampled rights of ranchers. (1) The public commentary surrounding the occupation was dismissive; many characterized the occupiers as interlopers or crackpots. (2) However, the dismissal of the occupation as an errant act overlooked its significance.

   First, the event highlighted a potent thread of anti-federal, anti-environmental sentiment among some white, working-class residents of rural areas. Indeed, both the occupation and the dismissive public discourse illustrated critical aspects of a deep, urban-rural cultural divide: the urban-rooted notion of wildlife as a place of purity to be set aside, the rural-rooted notion of land as a source of economic activity, and a sense of anti-urbanism that has been powerfully germinating in rural areas. (3) While Ammon Bundy and his father, Cliven--who had his own standoff with federal agents over grazing rights--are considered terrorists or extremists by many, they are folk heroes to many others. (4) The Bundys thus represent the idea that federal natural resources law is an illegitimate encroachment on the rights and way of life of rural, blue-collar (mostly white, male) workers. (5)

   Second, the occupation needs to be contextualized as a violent conflict over scarce natural resources resulting in a human casualty, in addition to economic, ecological, and cultural losses. (6) We should therefore consider it through the lens of climate change. Namely, a group of angry ranchers occupying a wildlife refuge and demanding use of its resources is precisely what a conflict over natural resources will look like in the era of climate change. Although there is a long history of western "wrangling" over natural resources and public lands ownership, (7) most notably manifested in the so-called Sagebrush Rebellion, (8) one should anticipate that these tensions will worsen with the increased stresses of climate change.

   This thread of anti-federal, anti-environmental sentiment among white, rural, working people and its relevance to managing scarce natural resources has been given light consideration in climate law and policy scholarship. (9) However, it has been a meaningful obstacle to a more unified and effective national approach to climate change. It is a social element in the national social-ecological system (SES)--a thorny, people-centric issue closely linked to land use. It is also an issue that land use regulations have traditionally treated as outside their purview, but which the law must evolve to account for as a "factor[] in the law-and-society system that threaten [s] dynamical system sustainability," as well as the rule of law. (10)

   Using the Malheur occupation as a focal point, this Article examines two anti-federal, anti-environmental social movements, to the extent those movements have involved populist sentiments expressed by working residents of mostly rural areas: 1) the movement to transfer public lands in the west to the states (the "Land Transfer Movement") and 2) the movement to counteract regulation of the coal industry ("the War on Coal Campaign"). While these movements tend to be treated as distinct, their commonalities illustrate how the alienation of interest here is a phenomenon of national scale. This analysis sets aside for now the heavy involvement of political and industry actors in these movements, with the reasoning that addressing a broken political system is a different conversation than one focused on rural alienation, labor, and land use. The specific objectives of this inquiry are threefold: 1) to better understand this segment of society that environmentalism appears to have left behind and the related alienation manifested in these movements; 2) to better understand how these movements and related themes may impede formulation and implementation of effective federal climate policy; and 3) to consider how federal climate law and policy and effective SES management can address this and comparable forms of alienation, and even funnel it into productive pathways.

   The Article proceeds as follows. Part II reviews the current literature on climate governance and the evolving understanding of how law can accommodate SESs. After establishing some definitions in Part III.A, Part III.B turns to a substantial social tension that has always overshadowed environmental regulation: the longstanding rift between labor- or work-related advocacy and environmental advocacy, and the common perception that environmental regulation is the enemy of (certain) workers' well-being. Part III.C discusses the two social movements noted above, using the Great Basin and central Appalachia as regions to illustrate some of the movements' characteristics. This Part notes three important parallels between the movements, in addition to the work-environment rift: 1) the historical absenteeism of the federal government in the regions where these movements see support; 2) the rural cultural and economic underpinnings of both movements; and 3) the lack of autonomous land use decision making in both regions. The discussion addresses these issues' significance to climate governance and SESs. Part III.D then considers the curative potential of collaborative decision making for the work-environment rift.

   Parts IV and V argue that adaptive governance, also known as adaptive comanagement, and its embrace of procedures to secure stakeholder buy-in are on the right path toward remedying these issues. Part IV presents a case study as a success story and Part V presents a case study as a cautionary tale, while observing the relevance of certain land use planning principles to both scenarios. Part IV revisits the Malheur refuge and examines the comprehensive conservation planning process executed at Malheur pursuant to the National Wildlife Refuge...