The Wilderness Act and climate change adaptation.

• Author: Long, Elisabeth
• Position: I. Introduction through III. Possible Climate Change Adaptation Actions in Wilderness Areas B. Management for Realignment May Successfully Facilitate Changes, p. 623-658 - The Wilderness Act at 50

1. INTRODUCTION II. HOW THE WILDERNESS ACT CAN HELP US UNDERSTAND THE ROLE OF LEGAL FLEXIBILITY FOR CLIMATE CHANGE ADAPTATION A. The Wilderness Act: An Inflexible Law That Could Obstruct Climate Change Adaptation B. Climate Change and Wilderness Areas 1. Temperature and Precipitation 2. Synergistic Effects of Climate Change and Fire Suppression 3. Effects on Species Persistence and Distribution 4. Effects on Insects, Disease, and Invasive Species 5. Land Management Agencies' Responses to Climate Change Effects on Wilderness Areas III. POSSIBLE CLIMATE CHANGE ADAPTATION ACTIONS IN WILDERNESS AREAS A. Where Inaction is Deemed Unacceptable, Management Strategies May be Employed to Enhance Ecosystem Resilience and Resist Changes to "Buy Time." 1. Fire and Fire Surrogates to Restore Natural Fire Regimes, Improve Forest Health, and Benefit Plants and Wildlife 2. Actions to Control Insects and Disease Outbreaks 3. Actions to Control Normative Invasive Plant and Animal Species 4. Intensive Measures to Keep Endangered Plant and Animal Species Healthy in Their Current Range 5. Reintroductions of Native Plant and Animal Species After Disturbances and Extirpations Caused by Direct or Indirect Human Action B. Management for Realignment May Successfully Facilitate Changes C. Restraint 1. Passive Management in Wilderness Areas Allows for Adaptation 2. Resources May be Better Spent on Active Management in More Altered Landscapes 3. Uncertainties and Lack of Monitoring Caution Against Active Management 4. Political and Bureaucratic Pressures IV. What Management Choices are Possible Under the Wilderness Act? A. Management Agency Policy Handbooks Provide Broad Leeway Under the Wilderness Act 1. Biodiversity 2. Forest Health B. Statutory Restrictions on Agency Wilderness Management 1. Statutory Prohibitions and Exemptions 2. Demonstrating Necessity Under the Wilderness Act 3. Identifying the Appropriate Goals of the Wilderness Act C. Defining a Spectrum of Permissible to Impermissible Management Strategies for Climate Change Adaptation 1. Prohibited 2. Potentially Permissible: The Exceptions to Sections 4(c) and 4(d) 3. Permitted V. CONCLUSION I. INTRODUCTION

   Policymakers, resource managers, lawyers, and legal scholars are all struggling with the implications of climate change for environmental and natural resources law. Substance, procedure, goals: All of the elements of environmental and natural resources law are up for debate in light of the effects that climate change will have. A common theme in those discussions is the need for more legal and political flexibility to allow for adaptation to climate change. But what kind of flexibility? How much? And at what cost? These are difficult questions that the environmental law community is just starting to get a handle on.

   The Wilderness Act (1) is an excellent place to start answering these questions. The passage of the Act in 1964 was, in many ways, a precursor to the wave of federal environmental and natural resource laws enacted in the 1970s. (2) It was one of the first examples of the modern environmental movement flexing its political muscles and forcing legislative changes. (3) It marked a major paradigm shift in federal natural resources law and policy away from discretionary decision making by resource management agencies--decision making that was primarily intended to allow for significant amounts of human management, development, and exploitation of natural resources for human use and enjoyment. (4) The Wilderness Act removed some discretion from management agencies, providing Congress with primary decision making authority: It retained sole authority to create, eliminate, expand, or contract wilderness areas. (5) The Wilderness Act established a strong presumption that hands-off management was the best choice for wilderness areas and would allow for the maintenance and restoration of a natural balance; exploitation and development were not the primary goals for wilderness areas." It was one of the first examples in federal environmental law and policy establishing that passive, recreational use was to be one of the dominant uses of federal public lands.

   All of these presumptions are in question today. Active management may be required to respond and adapt to climate change, as hands-off management is no longer a guarantee that natural processes will dominate in wilderness areas. (8) For instance, there have been frequent proposals to aggressively use timber harvests to respond to climate change-induced pine beetle infestations. (9)

   Thus, the Wilderness Act, at age fifty, provides us with an excellent case study to consider the question of how well existing environmental and natural resources law can provide for climate change adaptation.

   We begin in Part I with an overview of the Wilderness Act and why it can be seen as an exemplar of an inflexible law at a time when flexibility might be required to adapt to climate change. We also discuss the current and future effects of climate change on the resources in wilderness areas, how wilderness areas will be a critical component of adaptation to climate change in the United States, and the very tentative steps that management agencies have taken so far to respond to climate change in wilderness areas. In Part II, we discuss the wide range of possible adaptation steps that might be taken to respond to climate change in wilderness areas, all the way from passive management--what we categorize as restraint--to short-term steps to resist climate change or provide resilience for wilderness resources, to long-term efforts to actively facilitate changes in wilderness areas--what we categorize as realignment. In Part III, we examine how many of these management options are foreclosed or limited by the Wilderness Act. We start with an examination of agency policies to see if the agencies have limited themselves with respect to available options. We then proceed with a close review of the relevant statutory text and case law--supplemented by agency practice and regulations--to identify the constraints the Act itself imposes on management agencies.

   Our conclusions may surprise some readers. It turns out that the vast majority of management options are available to management agencies in wilderness areas, though the agencies may have to jump through some procedural and substantive hoops. Of course, these hoops might still be too much of a constraint to allow for effective adaptation to climate change. But we do not think so. There are substantial benefits to restraint and passive management for climate change adaptation--at least in the particular context of wilderness areas--and the procedural and substantive requirements for active management under the Wilderness Act put a thumb on the scale in favor of agencies focusing primarily on restraint and passive management. That thumb on the scale may be particularly important given the uncertainty about what kinds of active management techniques might be effective, the possible negative effects of active management on other resources, and the political and bureaucratic pressures that might otherwise lead to the overuse of active management in response to climate change.

2. HOW THE WILDERNESS ACT CAN HELP US UNDERSTAND THE ROLE OF LEGAL FLEXIBILITY FOR CLIMATE CHANGE ADAPTATION

   Not long after the creation of the U.S. Forest Service, the idea of wilderness was born. Early in the agency's history, leaders recognized the need to preserve areas of national forests in a natural state. (10) In 1919, officials in Colorado's White River National Forest decided to forgo road construction into the Trappers Lake basin, concluding that "the mood" of the area would be better preserved by preventing motorized access." Then in 1924, the Forest Service designated the Gila Wilderness in New Mexico's Gila National Forest at employee Aldo Leopold's behest. (12) In the following decades, the agency added more acres to its young system of wilderness, wild, and primitive areas. (13) However, increasing recreational use and timber harvests in national forests led to public concerns about the administrative system for designating and preserving wilderness. (14) In response, Congress enacted the Wilderness Act of 1964.16 The Act established the National Wilderness Preservation System (NWPS), consisting of fifty-four federally owned and congressionally designated "wilderness areas," and created a process by which Congress could designate additional wilderness areas. (16)

   Today, wilderness areas are managed by four federal agencies in two departments: the U.S. Forest Service in the Department of Agriculture, and the Bureau of Land Management (BLM), National Park Service (Park Service), and Fish and Wildlife Service (FWS) in the Department of Interior. (17) This Article focuses on wilderness areas managed by the Park Service and Forest Service because these two agencies manage the greatest wilderness acreage and have the most developed climate change policies. (18)

   1. The Wilderness Act: An Inflexible Law That Could Obstruct Climate Change Adaptation

      The Wilderness Act is often characterized as one of the most restrictive and inflexible environmental laws. (19) Under the Act, mechanized transport and roads are generally prohibited in wilderness areas. (20) Construction of buildings and other man-made structures is also generally prohibited, as is the use of mechanized tools, such as chainsaws. (21) The general purpose of the Act is to preserve certain federal lands in "such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness." (22)

      On the other hand, the Act has significant exemptions: The Act's restrictions can be waived for "the control of fire, insects and diseases."...