A train without tracks: rethinking the place of law and goals in environmental and natural resources law.

• Author: Wiersema, Annecoos

1. INTRODUCTION II. NEW THINKING IN ENVIRONMENTAL AND NATURAL RESOURCES LAW A. Responding to the Scientists: Ecosystem Management 1. Ecological Foundations of Ecosystem Management 2. The Impact of the Science on Institutional Design B. Lessons from New Governance Writers III. THE ROLE OF LAW AND ENVIRONMENTAL PROTECTION GOALS IN NEW APPROACHES A. Goals in Ecosystem Management and New Governance Writing B. Problems with Ecological Integrity and Process-Generated Goals 1. Goals That Are Too Broad 2. Can Broad Goals Combined with Flexible Benchmarks Achieve Better Environmental Protection? IV. CASE STUDIES: THE CHESAPEAKE BAY PROGRAM AND THE RAMSAR CONVENTION ON WETLANDS OF INTERNATIONAL IMPORTANCE A. Introduction to the Case Studies B. The Chesapeake Bay Program and Protection of the Blue Crab 1. The Chesapeake Bay 2. The Chesapeake Bay Program a. The Chesapeake Bay Program Viewed Through its Constitutive Agreements b. The Chesapeake Bay Program at Work 3. The Blue Crab--Beautiful Swimmers a. Science First b. Stakeholders and Information Gathering c. Post-BBCAC Crab Protections 4. Goals and Protection of the Blue Crab in the Chesapeake Bay C. The Ramsar Convention on Wetlands and the Protection of Wetlands 1. The Convention's Obligations 2. The Convention's Substantive Obligations: Wise Use and Conservation 3. The Ramsar Convention and Goals V. FILLING THE GAPS A. The Missing Goals B. A Process for Developing the Substantive Law C. The Need to Bring Back a Substantive Role for Law VI. CONCLUSION I. INTRODUCTION

   The message in environmental and natural resources law is also the message in administrative law, constitutional law, international law, and legal theory: we live in a complex society where laws designed for particular purposes can have unanticipated consequences, (1) where bureaucracy is too slow and cumbersome to respond quickly and efficiently enough to those consequences, (2) and where the traditional structure of top-down lawmaking is under siege as too rigid, too hierarchical, and too contentious (3) to achieve its goals. The world we live in, as legal writers spanning a range of fields tell us, requires new forms of governance.

   Both within and beyond the environmental law field, writers have begun to address the institutional design challenges raised by these insights. Their work commends and proposes, among other things, flexible mechanisms for resolving regulatory problems, responsive and adaptive regulation, enhanced involvement of private actors in the traditionally public sphere of bureaucracy and its implementation, and deeper collaboration with stakeholders. (4) In the environmental context, this work also advocates a more holistic approach to environmental protection, moving away from a focus on separate media like air, water, and waste. (5) And such work recognizes the importance of a multiscale approach to environmental protection efforts, abandoning the traditional dichotomy of local versus federal, and embracing instead multiple scales of governance. (6)

   There is no shortage of examples of the kind of governance models advocated in response, or examples of apparently successful implementations of the models: democratic experimentalism; (7) collaborative ecosystem governance and collaborative governance; (8) ecosystem management and adaptive ecosystem management; (9) modular regulation; (10) autopoiesis and self-reflexive law; (11) eco-pragmatism; (12) and the harnessing of global networks, (13) to name a few of the most prominent. Not all of these approaches are the same by any means. (14) They differ sometimes in substance, sometimes in underlying theoretical foundation. (15) Some are positivist accounts; some tend towards a more normative bent. (16) Some are dominated by environmental law examples; others draw from a larger pool of regulatory issues. Yet, this group of thinkers is linked by a common emphasis on rethinking governance. (17) Each one--sometimes overtly, sometimes covertly--has implications for the role of law within that project. (18)

   The significance of this new thinking on institutional design and governance for environmental and natural resources law is striking. Environmental and natural resources lawyers are hearing the call for change from two sides. First, environmental and natural resources lawyers are hearing the call to rethink legal measures for protection from scientists, particularly writers drawing on the ecological approach of ecosystem management. (19) Second, environmental and natural resources lawyers are also hearing the call to rethink legal measures for protection from another side. Writers in a range of legal and nonlegal fields argue that we must rethink our public sphere and traditional approach to administrative law and regulation. As any environmental law student will attest, administrative law and environmental law are heavily intertwined. Any argument about rethinking regulation and governance is necessarily an argument about environmental law. Indeed, many of the writers referred to above draw on examples in the environmental law setting in order to support broader arguments about regulation and governance in other legal contexts. (20)

   Now, several years into this mix of new thinking, a moment has arrived when the critical mass of practitioners and scholars in the environmental law field recognize the need for new approaches and new ideas. (21) Now is also the time when the ideas of the last decade or two of new institutional thinking have found their way into some institutions for environmental protection. The time has come, then, to explore whether the promise of these new approaches will result in more effective environmental protection, or whether something is missing from the picture.

   This Article focuses on the relationship between goals and the role of law in these new approaches to governance and protection, (22) and considers whether the role of law assumed by these new institutional models is sufficient to achieve a goal of effective long-term environmental protection. It is this Article's hypothesis that long-term environmental protection can only be achieved by these models if we can be sure that all of the values that are at stake in environmental protection will be adequately represented by the procedural mechanisms that these institutions envision.

   The Article explores the answer to this question by examining two institutions where new approaches to environmental governance appear to have taken hold, the Chesapeake Bay Program in the United States and the Ramsar Convention on Wetlands of International Importance, an international treaty with over 150 parties. (23) The case studies suggest that the institutional models are missing something that will be necessary if we want to achieve long-term environmental protection. Indeed, even if we strive to achieve goals other than long-term environmental protection, I posit that the new models' emphasis on procedural law over substantive law means that we cannot guarantee the achievement of any one particular goal.

   The models, as currently conceived and implemented, resemble trains without tracks, moving forward without a path. To ensure more effective environmental protection, we need to supplement these models with a role for substantive law. This substantive law can provide the tracks for our moving train--in the form of sufficiently specific goals--that can guide us towards more effective long-term environmental protection.

   The Article begins, in Part II, with a discussion of ecosystem management, the field that has emerged over the past few decades from scientists seeking to ensure more effective environmental protection and management of natural resources. It then briefly addresses the similarities between this work and the work of writers advocating changes in how we govern even beyond the environmental and natural resources law field. Part III discusses the role of goals and law in these two bodies of work, and considers what might be missing from the picture that emerges from both of these bodies of literature. In Part IV, the Article explores two case studies that shed light on this missing piece before proposing, in Part V, how we can move towards filling that gap.

   This is the first step in the difficult task of rethinking our institutional models to better respond to ecological complexity. But we still have a long way to go. This Article serves as a warning that not all paths will lead us to more effective environmental protection and that we need to think carefully about the role of law in new institutional design.

   Before going further, a few notes on terminology are necessary. Throughout the Article, I refer to environmental law and natural resources law as one field, using the phrase "environmental law." Although the fields of environmental law and natural resources law have been bifurcated for many years and have had a different focus and history, the lessons we are to learn from ecologists tell us that we need to rethink this bifurcation. (24) Thus, I use the term "environmental law" as shorthand for a body of law that aims to protect all aspects of the environment. Further, the teaching of ecosystem management is, as we shall see, that humans and nature should not be treated as distinct. I recognize the impossibility of complete division between human and nonhuman when viewed from the standpoint of ecologists. For the sake of convenience, however, I use the term "nature" throughout the paper to refer to the nonhuman world.

   The work of writers other than those identified with ecosystem management is referred to throughout the Article as the work of the new governance writers. Although some of these writers may not identify themselves as new governance writers, the familiarity of the phrase makes it a useful organizing term to capture a range of writers thinking about institutional design and governance today.

2. NEW THINKING IN ENVIRONMENTAL AND NATURAL...