WILDERNESS LAW IN THE ANTHROPOCENE: PRAGMATISM AND PURISM.

• Author: Mccormack, Phillipa C.

1. Introduction: Wilderness Governance at a Crossroads 384 II. Wilderness: Its Values and Threats 386 A. Identifying and "Defining" Wilderness Values 386 B. Wilderness Increasingly Endangered 389 C. Key Inquiries 390 III. Wilderness Law: Past and Present 391 A. History of Wilderness Conservation 391 B. Australian Wilderness Law 395 1. Categories of Wilderness Law 395 2. Definitions of Wilderness 399 3. Conservation Management and Exceptions to the Non- intervention Principle 400 C. United States Wilderness Law 402 1. Categories of Wilderness Law 402 2. Definitions of Wilderness 403 3. Conservation Management, the Non-intervention Principle, and Its Exceptions 404 4. State Wilderness Laws 406 D. European Wilderness Law 408 1. Categories of Wilderness Law 408 2. Definitions of Wilderness 414 3. Conservation Management and Exceptions to the Non- intervention Principle 416 C. United States Wilderness Law 417 IV. Wilderness Governance in the Anthropocene 419 A. Wilderness and the Anthropocene 419 B. The Case for Pragmatic Wilderness Management 423 C. The Case for Purism in Wilderness Management 428 V. Conclusions: Intervention or Non-intervention: Where to Draw the Line? 431 I. INTRODUCTION: WILDERNESS GOVERNANCE AT A CROSSROADS

   How should the law protect wilderness amidst growing environmental upheaval? Experts have named our era the "Anthropocene," because our species now dominates Earth's ecosystems and processes. (1) Various experts estimate that the majority of terrestrial ecosystems have been converted to human use, seriously degraded, or both. (2) A recent study estimates that as much as 97% of global mammalian biomass consists of humans and our domestic animals. (3) Humanity is predicted to grow in population from 7 to 9 billion by 2050, and in some regions of the world, continue growing to 2100. (4) Between 500 million and 2.5 billion extra acres will be needed to accommodate the extra humans. (5) As the Anthropocene unleashes global warming, disrupts food webs, spreads invasive species, and affects other changes that are rapidly degrading nature's riches, (6) one might validly query whether it makes sense to talk about "wilderness" at all. Furthermore, if some relatively unadulterated reservoirs of nature persist, we should not assume that past approaches to their conservation and management remain viable. Although wilderness protection is one of the oldest ideals of nature conservation, it now faces unprecedented challenges that warrant a fresh look at its future in twenty-first century environmental law. This Article takes up this challenge, focusing on laws in Australia, Europe, and the United States.

   We hold that "wilderness" remains a valid concept and distinct type of environment, and thus we believe the key question to pursue is: When should the law protect and leave wilderness alone, and when should the law require that humans intervene and actively manage it? Put another way, when should the law adopt a "purist" stance, in which wilderness areas are passively managed on the assumption that "nature knows best," and when should it adopt a "pragmatist" approach of active management to maintain wilderness values from increasing disturbances? We consider these as endpoints along a spectrum with a variety of options between them.

   This Article spans four further substantive parts. Part II introduces the key values of wilderness and threats to them, puts these issues in historical and contemporary context, and distills the key inquiries this Article investigates. Part III examines the history, purposes, and current state of wilderness governance, analyzing the domestic law in the United States, Australia, and selected countries in Europe. We aim to assess what each law seeks to protect and with what underlying values. This Article does not specifically consider wilderness governance in areas beyond national territorial jurisdiction (e.g., Antarctica or the high seas) nor dwell on international law, partly because these domains raise different governance challenges and also because wilderness law is relatively undeveloped in such domains. Part IV focuses on the choice between purist and pragmatic management approaches in light of the environmental upheavals of the Anthropocene, and particularly the effects of climate change. For instance, should endangered species not currently present in, or native to, a wilderness area be introduced there in order to facilitate their survival? The Article concludes in Part V with advice on what to do about wilderness and wilderness law in the rapidly changing Anthropocene. To preserve the multiple values that wilderness law is designed to protect, we recommend adhering to purism as far as possible but accepting the need for some pragmatism, implemented through limited, well-defined exceptions to the rule of non-intervention.

2. WILDERNESS: ITS VALUES AND THREATS

   1. Identifying and "Defining" Wilderness Values

      References to wilderness appear in legislation, policy guidance, and park management plans around the world. Although not always accompanied by an explicit definition, most of these documents describe wilderness as large areas, characterized by free functioning natural ecosystems, and subject to very limited past or present anthropogenic influence. (7)

      Today, many nations ostensibly prioritize wilderness for conservation, although the majority of potentially designated global wilderness is not formally protected. (8) Wilderness advocates ascribe a variety of values to wilderness to justify its legal protection. (9) Wildernesses have important ecological values: they protect ecosystem processes and their functions that flourish on a landscape scale, provide habitat for biodiversity, (10) and sequester carbon, thus mitigating greenhouse gas pollution and helping communities adapt to climate change. (11) Wilderness also has social or experiential values for people, including for self-reliant recreation, and as places for spiritual and aesthetic appreciation. (12) Scientists prize wilderness because it offers unique places for research into environmental systems and biodiversity and also as reference points for comparing environmental changes in other areas. (13) Wilderness also has economic value, both for the money tourists spend while exploring it, (14) but also because wilderness areas serve as some of the planet's best providers of ecosystem services essential to humanity flourishing. (15)

      Wilderness can also be defined by reference to visitors' perceptions and experiences. Tasmanian wilderness advocates Martin Hawes and Grant Dixon argue that "remoteness" should be a foremost criterion here. (16) Remoteness from human infrastructure and activity, in their view, protects the ecological and experiential values of wilderness, such as enabling visitors to experience solitude and a sense of place in nature. (17) Indeed, Hawes and Dixon argue that the concept of wilderness would be strengthened and enhanced if remoteness was recognized as its primary value, in essence, as a pre-requisite for the application of the wilderness moniker. (18) Later in this Article, we discuss in more detail the variety of ways wilderness is defined in law and the merits of these approaches.

      Juggling these diverse wilderness values may lead to conflicts that require careful management. Law and policy aiming for the protection of these values raise various questions, including how wilderness protection may be shaped to ensure respect for the rights of Indigenous peoples, whether historic cultural sites (e.g., archaeological ruins) can co-exist in a wilderness, and the issue of a pedantically strict application of the requirement of large size, which may exclude small islands or fragmented landscapes containing important, relatively untouched natural values. (19) Promoting public access to wilderness to enable enjoyment of these areas' experiential values may eventually diminish the solitude and sense of place sought, and may degrade ecosystems or impair species' survival. (20) For example, almost 75,000 tourists visited Antarctica in the 2019-2020 season, (21) compared to just fifty-seven tourists in 1966. (22) Similarly, patronage of Tasmania's Wilderness World Heritage Area's principal park, at Cradle Mountain, jumped from 199,000 in the twelve months to June 30, 2015 to 280,000 in the twelve months to June 30, 2018. (23) Ecotourism may help pay for wilderness conservation, but it can also undermine the very qualities that entice visitors and that merited legal protection in the first place.

   2. Wilderness Increasingly Endangered

      Wilderness areas are increasingly endangered. While the extent of protected natural areas has grown substantially in recent decades, in line with the Aichi targets of the Convention on Biological Diversity, (24) both the total wilderness area and the characteristics of wilderness are still declining. (25) Based on a definition of wilderness that is an area without significant human disturbance such as forestry, farming or mining, we are losing it rapidly: the planet lost one tenth of its wilderness between 1993 and 2016 (3.3 million km (2), an area larger than India). (26) Today, the largest wild areas within national borders are the Australian outback, Alaska's arctic tundra, Canada's and Russia's vast boreal forests, and the Amazon jungle. (27) The principal wilderness areas outside national borders are in Antarctica and the high seas, although even these wildernesses are declining. Recent research shows that less than 32% of the Antarctic continent may be considered inviolate wilderness, (28) and researchers consider only 13% of the oceans comprise wilderness, free from fishing, shipping or other disturbances. (29)

      In addition to ongoing habitat destruction, fragmentation and degradation, the biggest anthropogenic threat to wilderness is climate change, which will increasingly engender drought and wildfires, acidify oceans, bleach coral reefs, and...