Getting to here: bioregional federalism.

• Author: Nicholson, Wes

1. INTRODUCTION II. OUR COMPLEX, SYSTEMIC ENVIRONMENTAL PROBLEM A. The Persistent Difficulty of Environmental Problems B. Complex Systems, Self-Organization, and Emergent Properties C. Self-Organizing Environmental Policy III. EXPLOITING PLACE TOWARD SELF-ORGANIZING ENVIRONMENTAL POLICY A. The Bioregional Vision B. Bioregionalism's Cousins 1. Ecosystem Management a. Defined b. History and Current Practices c. Prescriptions d Problems 2. Watershed Management a. Defined b. History and Current Practices c. Prescriptions d. Problems C. A Different Bioregional Vision IV. GETTING TO HERE A. General Factors Impacting Feasibility 1. Constitutionality 2. Degree of Change and Divisibility B. Specific Factors Impacting Feasibility 1. Changes to the Number of States 2. Piecemeal Adoption Among the States 3. Changes in Legal Authority and Changes in Law 4. Regions of Federal Legal Effect 5. Intrastate Bioregionalist Structure 6. Federalism: The Grand Bargain C. A Thought Experiment: Iterative Two-State Boundary Redrawing 1. Hypothesis a. State Representation in the Boundary-Redrawing Process b. A Two-State Method for Boundary Redrawing c. A Method for General Boundary Redrawing d. Timeline e. Potential Amendments 2. Experiment a. Negotiating States: Oregon and Washington b. Negotiating States: Tennessee and North Carolina 3. Conclusions V. REFLECTIONS I. INTRODUCTION

   In the face of socioeconomic activity, the environment doesn't take care of itself. Environmental degradation seems to be the default path of modern society absent conscious ameliorative efforts. Such conscious effort expended in pursuit of more environmentally protective policies can mitigate environmental degradation, but the cost in political capital can limit the scope, duration, and effectiveness of those policies. As a result, environmental problems emerge more quickly than they can be thoroughly policed. Our approach toward establishing environmentally protective policies leaves us chronically playing the part of a harried bureaucrat, running down the road after the problem, paperwork in hand.

   This Comment posits that our system for establishing environmental policy has a structural problem that exacerbates all of our environmental problems, but that a structural mechanism may exist that could address this underlying structural problem. That structural mechanism lives in the overlap of two seemingly disparate political philosophies, one a product of the modern environmental movement, the other as old as the United States itself. The pairing may amount to a case of politics making strange bedfellows. However, there is evidence to suggest that the citizens of this country may be receptive to cross-ideological solutions to our pressing national problems. (1)

   This Comment is speculative and exploratory in nature. Part II identifies our environmental problems in general as byproducts of a complex system. Part III first summarizes the philosophy of bioregionalism, as well as its more practically-minded relatives, ecosystem management and watershed management, then proposes a structural mechanism to mitigate these complex-system byproducts. Part IV is an extended thought experiment exploring how that structural mechanism, implementing a politics of place, might be achieved. Reflections on all of this follow in Part V.

2. OUR COMPLEX, SYSTEMIC ENVIRONMENTAL PROBLEM

   1. The Persistent Difficulty of Environmental Problems

      Generally speaking, environmental problems are a natural consequence of human industry. A business will have an environmental impact to one degree or another in the simple course of doing business. (2) The impact a business has upon the environment is not present as a force guiding its decisions in the same way as other forces acting on it, such as the need to secure funding, gain customers, and in general grow the business with a view to profits. At the same time, environmental impacts are not present as a force guiding governmental decisions in the same way as other forces faced by those in government, such as the need to discern and establish policies both proper and feasible on behalf of one's constituency, most often in a partisan environment (and, perhaps, with an eye to preserving one's own position and interest in government). (3)

      Admittedly, a business may seek to become green, embracing business practices or developing products with an eye to reducing environmental impact. Admittedly, there are statutes and regulations outlining environmental policies, groups organized to petition the government for redress regarding environmental grievances, and factions in the electorate for whom environmental policy informs their votes--and thus pressures elected office-holders--to one degree or another. (4) However, all of this requires force of will to maintain. The green practices a business may embrace, or the development of environmentally minded products, may be subject to change in the face of conflict with more immediate interests of the business. Similarly, absent sustained political pressure, desirable environmental policies may never come to pass. Even where stated governmental environmental policies are at issue, countervailing political pressures may result in those environmental policies being given short shrift at enforcement time. Altruism is constantly subject to headwind forces.

      At the same time, the difficulty of addressing many environmental problems is complicated by their cross-jurisdictional nature. (5) When the policies of more than one state or jurisdiction contribute to an environmental problem, the political will of all states or jurisdictions involved must be brought to bear in order to coordinate, negotiate, and reach agreement. (6) Thus, there is also a persistent barrier to entry for solutions to cross-jurisdictional environmental problems.

      With respect to governmental policy, the forces set against altruism, as well as cross-jurisdictional barriers to entry, sap the will behind environmental policies. Assuming that industry will always be with us, environmental problems will always be with us. The establishment and enforcement of environmental policies will in turn always be hindered by dependence upon continuing political will.

   2. Complex Systems, Self-Organization, and Emergent Properties

      Complexity theory observes that some systems in which multitudes of independent actors are governed by simple rules may not only possess surprising structural complexity, but may also be capable of self-organization and self-regulation. (7) Such systems may have properties that are not direct results of the particular set of rules in the system, but that instead emerge as indirect, iterative, cumulative consequences of the operation of the system under that particular set of rules over time. (8)

      A number of phenomena serve as examples of emergent properties of self-organizing, complex systems. Biodiversity may be seen as an emergent property of life under forces of evolution over vast spans of time--as one species succeeds and becomes plentiful, other species can succeed by relying on it as food, and the balance between populations of predator and prey becomes self-regulating over time. (9) The variety of languages may be seen as an emergent property of linguistic evolution among multitudes of peoples over time, constrained by an ingrained nature of grammar acting as the simple rules out of which complexity may arise. (10) The Internet in its current abundance came to be not because a government decreed its structure, but rather emerged because certain building blocks became available (URLs, servers, and site hosting services) and individuals, compelled by their own self-interest (ranging from hobby to profit) each built up one small part of it. (11) Even the Constitution may be seen to have implemented a system having emergent properties: Power is separated at the federal level into the three branches, (12) counting by design on the jealous tendencies of each branch to guard its own power to serve as a check on power's inherent self-aggrandizing nature, (13) an arrangement which is (mostly) self-regulating, and under its constraints, our complex government has evolved.

      Similarly, a free market secures contracts and property rights, and the resulting system in its startling variety provides a mechanism--an imperfect mechanism, to be sure, but still an effective mechanism--by which employment, material wealth, and prosperity are created and distributed, generally speaking, for the greater part of its constituent members. (14) The system does not specifically mandate these results. Instead, interestingly, a free market exploits the self-interest of individual actors therein, and the results emerge from the self-organizing system as it operates. (15) By relying on the inherent force of human self-interest, no force of will on the part of government is required in order to guarantee, by dictate, specific economic benefits. Instead, society seems guided as if by an "invisible hand" to act in such ways as to ultimately provide them. (16)

      These benefits do not magically appear without any effort by any party. Indeed, to establish and run a business is a continuing act of will. However, the will involved is not the force of will exercised by a top-level actor (such as a government), but is rather the force of will of many actors distributed within the system, as guided by self-interest. Thus, in a market economy, from the perspective of top-level actors, solutions to economic problems appear to be self-organizing. That is, to a certain extent, economic problems seem to solve themselves.

   3. Self-Organizing Environmental Policy

      Our environmental problems are also the aggregate results of the acts of a multitude of independent actors. Individuals, businesses, and government may not set out to directly cause environmental impacts. Instead, they are byproducts of our social system. Since our social system fundamentally establishes a...