27 ELR 10455 | Environmental Law Reporter | copyright © 1997 | All rights reserved


The Challenge of Achieving Sustainable Development Through Law

Kenneth L. Rosenbaum

Kenneth L. Rosenbaum is a private consultant on environmental and natural resource legal policy working in Washington, D.C. He holds an M.F.S. from the Yale School of Forestry and Environmental Studies (1978) and a J.D. from the Northwestern School of Law at Lewis and Clark College (1982). He is a member of the Oregon bar.

[27 ELR 10455]

Five summers ago in Rio de Janeiro, world leaders gathered at the United Nations Conference on Environment and Development (UNCED) and committed themselves to the pursuit of sustainable development.1 As part of that commitment, they signed an impressive array of agreements, including the Forest Principles, the Convention on Biodiversity, the Convention on Climate Change, and Agenda 21.

Reliance on these international legal tools suggests that world leaders hope the world can achieve sustainable development through law. In fact, law is an awkward tool for promoting sustainable development. This Dialogue explores why and offers some challenges to attorneys, judges, and lawmakers who hope to promote sustainable use of the world's resources.

Five Hurdles

There are at least five hurdles to achieving sustainable development through law:

1. Laws tend to divide authority over resources, and these divisions of authority seldom promote effective management.

2. Workable law must reflect a true understanding of the environment, and we do not understand the environment.

3. The law is given life through advocacy, and there are no natural advocates for future generations.

4. Society's use of resources changes as understanding, knowledge, and technology change, making sustainable development a moving target.

5. Law is only one of many social mechanisms that mediate human use of resources, and unless it is the dominant mechanism, law alone cannot solve resource problems.

Division of Control

Law divides control over natural resources. Property lines divide resources among different owners; boundary lines divide resources among different governments; organizational lines divide authority among different agencies or different branches within agencies. These divisions reflect reasons that often have more to do with history than with current resource management problems, and the world is full of examples of divisions of control complicating environmental problems.

[] Geographic Divisions. Over a hundred years ago, geographer John Wesley Powell urged the United States to draw political borders in the arid West along ridges, not rivers.2 He saw that ridge-line borders would unite watersheds while rivers would split them. He knew that having one governing body over an entire watershed would make water management much more practical. No one listened.

Today, the West is full of geographically split resources. Declines in salmon populations on the Columbia River have triggered listings under the Endangered Species Act (ESA). The fish are no respecters of boundaries. They swim through rivers in three states, ocean waters of the United States and Canada, and international waters as well.3 One study identified 17 different international, federal, state, and tribal management jurisdictions that a hypothetical salmon might migrate through during its life cycle.4

The northern spotted owl, another threatened species in the Pacific Northwest, offers another example, but one that does not divide along watershed lines. Effective management requires coordination among landowners throughout the owl's range. The forests that make up the potential habitat of the owl are owned by private individuals [27 ELR 10456] and corporations, the states, and the federal government. Federal landowners include the U.S. Forest Service, the Bureau of Land Management (BLM), the National Park Service, and the Defense Department. During the Bush Administration, a federal interagency committee of scientists proposed a management plan that required coordinated efforts by key federal land managers. The BLM, which held critical corridors connecting otherwise isolated populations of the owl, did not accept the plan, stymieing its effective adoption.5

Geographical splits are not limited to the American West. All over the world, the wind blows air pollution from one jurisdiction to another. Water pollution and quantity issues follow rivers across borders. Parks and reserves stop at arbitrary bounds, but ecosystems do not. All over the world, environmental threats and influences ignore the lines we draw on maps.

[] Administrative Divisions. The law divides control along subject matter lines as well as property lines. The Columbia Basin salmon again provide a good example. Factors contributing to the salmon's decline include dams, fishing, and destruction of spawning habitat. The U.S. Army Corps of Engineers (the Corps) or the Bureau of Reclamation operate the federally owned dams. The Federal Energy Regulatory Commission grants licenses to build and operate dams. The Bonneville Power Administration and the Northwest Power Planning Council make power marketing and planning decisions that affect the demand for hydropower. The Corps writes permits for construction of irrigation intakes in the river, intakes that reduce the instream flow of the river and, if unscreened, can divert and trap migrating fish. The Bureau sells irrigators water from federal projects.

Several agencies have a say on salmon harvest. The National Marine Fisheries Service (NMFS) oversees ocean fishing and also has the power to list threatened or endangered stocks under the ESA. The NMFS also protects marine mammals, including salmon-eating species such as sea lions. State agencies police inland fishing. And several entities run fish hatcheries, which produce genetically distinct hatchery fish that compete and sometimes spread disease to wild stocks.

The spawning habitat is often in the small streams that drain the high country of the Pacific Northwest. Much of it is in public ownership, and the quality of the habitat depends on the care taken in the use of associated lands. If the U.S. Forest Service or the BLM is careless about logging or grazing practices, the streams may silt up, or be exposed to summer sun, or otherwise become less hospitable to spawning fish. State agencies control—or cajole—private landowners, urging good conservation practices in forestry, grazing, and farming. The U.S. Environmental Protection Agency (EPA) controls registrations of pesticides that might find their way into streams after use. EPA and the state agencies also set water quality standards.

This list so far only includes the agencies that control activities obviously connected to the welfare of the salmon. There are also the tax authorities, who administer laws that affect the course of investment; the zoners and planners who affect land use; and other officials whose actions affect commerce generally.6

[] Other Divisions. Many other kinds of splits of authority are common. Within the government, there is constitutional separation and division of power. The judiciary and the agencies may pull policy in different directions. So may the agencies and the legislature. The states may pursue different resource policies than the federal government.

The law also may split power among nongovernmental actors. The clearest examples of this involve private property. Reduction of air pollution may require common action by thousands of car owners. Reduction of nonpoint water pollution may require common action by thousands of land-owners and users. Sometimes regulation can solve this need for coordination, but regulation may be impractical to enforce or may be beyond the constitutional authority of the government to impose.

The law may split authority over time. Each new elected official, each new administration, each new session of a legislature has a new political agenda. The legal regimen necessary to promote sustainable resource use may require a continuity of purpose far longer than two-, four-, or six-year election cycles. Within the private sector, laws split authority between present and future owners of property. Even when property remains for a long time under stable ownership, laws may influence owners to focus on short-term considerations. Annual taxation, for example, may encourage landowners to pursue short-sighted programs of resource use.7

[] No Perfect Splits. So, why not realign legal control over resources to simplify their management? Even if we could overcome the enormous political, bureaucratic, and economic inertia that tends to maintain existing power structures, there is no perfect system of organization.8 The complexity of the [27 ELR 10457] world and the dangers of overly concentrated authority drive us to divisions. But finding good divisions is hard, and a division that is optimal for one resource problem may spell trouble for others.

Lack of Understanding

The previous section argued that the complexity of the world leads the law to split problems into pieces, and the splits inevitably cause complications. This section takes the argument one step further: the complexity of the world is such that we never fully understand environmental problems in the first place.

A few years ago, a trio of biologists looked at the attempts to manage fisheries sustainably.9 They found a history of overexploitation. Greed was an important factor,10 but they noted three science-related hurdles. First, you cannot apply a pure, traditional experimental approach to managing fisheries. Traditional science requires experiments under carefully controlled conditions. You cannot divide a fishery into two identical halves and carefully change one variable at a time to learn how the fish population reacts. Even if you could, it would take years to perform the experiments that would allow you to learn how the fishery reacts to exploitation.

So you must try to analyze the fishery. You try to identify underlying biological and physical systems that are simple enough to be analyzed with existing scientific knowledge. Here, the second hurdle arises. Fisheries and many other real-world resources are too complex to yield to this kind of analysis.

So you are left with pursuing a trial-and-error approach to management, guided by a series of educated guesses. And with fisheries, this may fall victim to a third hurdle: fish populations vary considerably in response to factors that have nothing to do with human activity. A natural rise in factors favorable to the fish could cover up the effects of overfishing. A subsequent natural fall in those factors combined with the overfishing could lead to irreparable collapse of the resource.

People like to assume that our understanding of environmental problems comes from solid science. In fact, it is more often artful extrapolation based in science but spun of values, best professional judgment, and the modern equivalent of folk wisdom. The history of the applied sciences is full of examples of reversals of view that illustrate this point. The accepted wisdom of one era becomes the discredited folklore of the next.

Take forest management for example. Forester Arthur Smyth has catalogued some of the instances of the received wisdom reversing itself during the last several decades.11 Creating a pattern of clearcuts dispersed throughout the forest was once considered good; now it is called fragmentation and considered bad. Leaving a fallen log or a usable tree was considered wasteful and bad; now leaving snags and downed wood for wildlife is considered good. Logging old growth while letting younger trees continue to grow was considered good; now it is considered bad. Leaving downed logs and debris in streams was bad; now it is seen as essential to normal stream ecology. Fire was once the unquestioned enemy of the forest; now foresters blame fire exclusion for the degraded state of some western forests.12

If scientists cannot tell us the right way to manage a resource, how are lawmakers supposed to establish sustainable controls on resource use? How can we write fisheries laws if we do not understand the forces controlling fish population levels? How can we write forest practice laws if some unknown fraction of what we "know" is wrong?

Environmental law, despite its name, regulates people, not the environment. But we must understand the environmentand know what human uses are sustainable. If we cannot understand the environment, how can we craft good environmental law?

Lack of Advocates

In the study of obstacles to sustainable fisheries management discussed above, the first hurdle that the three scientists noted was greed. Actually, they described the hurdle somewhat more genteelly: "Wealth or the prospect of wealth generates political and social power that is used to promote unlimited exploitation of resources."13

People want to be able to use resources. They make their desires known. People seek to apply the law or alter the law to make the resources available to them. And especially, people resist changes in the law that would deny them resources once they have invested time or money expecting to get those resources.

Presumably people in the future will want to be able to use resources too. They cannot make their desires known, nor can they seek to apply the law or alter the law. Our legal system depends on advocates, and there are no natural advocates for the future.

In fact, in some ways the law discourages advocates for the future. The doctrine of standing, for example, requires that in a civil suit,

the plaintiff must have suffered an "injury in fact"—an invasion of a legally-protected interest which is (a) concrete and particularized and (b) "actual or imminent, not 'conjectural' or 'hypothetical[.]'"14

….

By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.15

….

The party seeking review [must] be himself among the injured.16

The case law on environmental standing is rich and complex, and presenting it in full is beyond the scope of this [27 ELR 10458] Dialogue. As the above quotations suggest, though, standing can raise a significant barrier to presenting the concerns of future generations before the courts.

No standing requirement bars petitions to the other two branches of government, the legislature and the executive. However, of the various factors that help propel causes forward through these forums—the compelling nature of the problem, the motivation and skill of the petitioner, the clout the petitioner is able to muster—the interests of the future often take a backseat to the interests of the present. The people with the most to gain from sustainable use today have little say in the decision.

Nevertheless, there are advocates for sustainability and the future. Foresightful and altruistic interest groups, agencies, and businesses may put the desires of the present aside to argue for the future. But these voices are often not as well-funded or powerful as those pressing for unsustainable uses of resources.17

Understanding the Future's Interests

Further, any would-be advocate for the future faces another significant problem: trying to determine what the future really wants. We tend to think of natural resources as products of, well, nature. But the status of being a natural resource is actually a social one, a function of the knowledge and technology of the society that might enjoy the resource.

Examples are legion. What list of North America's natural resources made 200 years ago would have included petroleum? What list 100 years ago would have included uranium?

Consider how our conception of wild fish resources has changed. In my local supermarket's fish section is a whole row of "imitation" seafood products shaped to look like lobster or crab but made of former "trash" fish like pollock. On the next shelf is monkfish, selling for more than most cuts of beef, but considered a trash fish too 20 years ago. Fresh mussels 30 years ago would have only interested a small group of eccentrics, immigrants, and gastronomic adventurers. Also relatively new to American commercial harvest are species like sea cucumbers, those odd relatives of starfish, not common in American stores but shipped to eagerly waiting markets in Asia.

The way we have looked at American forest trees also has changed considerably. Two centuries ago, wood fueled America, paper came from cotton and linen rags, and the U.S. Navy considered tree-based chemicals like pitch and turpentine to be strategic assets. Now, few rely on wood for home heat or charcoal for industrial processes, we make paper from wood pulp, and we have almost no wooden fighting ships to maintain.

Forty years ago in the Pacific Northwest, hemlock, fir, and cedar were the only money trees; alders, maples, and yews were weeds. Now alder and maple have value for their wood and yew as a source of pharmaceuticals.

Forty years ago, who knew the value that people of the 1990s would place on forests for their biodiversity, endangered species habitat, or ability to absorb greenhouse gases? Forty years from now, what value will people see in the forest that we have no concept of today? How can we be advocates for their desires when we cannot be certain what those desires are?

This changing use of the environment has a corollary implication: sustainable development is a moving target. We will never perfect environmental laws because our use of the environment is ever-changing. As our use of resources changes, the law will have to keep pace.

When Law Alone Is Not Enough

Lawyers in the United States can get carried away by the spell of law. To a hammer, everything looks like a nail, says the proverb, and to a lawyer every problem has a legal solution. Every failure of expectations can be cured by a lawsuit; every anticipated contingency calls for a new clause in the contract; every resource is a study in needed regulation or property laws.

Actually, law is only one part of culture steering human behavior and often plays a minor role. Most decisions that you make moment to moment are steered more by custom, fashion, personal desires, and economics than by law. Think of the clothes you chose to wear today, the food you ate for breakfast, and even the career you have chosen to pursue. Law undoubtedly played some role in shaping these decisions, but was it the controlling factor?

Of all aspects of culture controlling human behavior, though, law is the easiest to consciously alter. Because of that, focusing on law to control resource use often makes sense.

The problem comes when other aspects of culture over-whelm and overrule the influence of law. In our American rule-of-law society, where cultural factors support a fair respect for law, it is hard to point to examples of major resource degradation following widespread flouting of the law. Still, here and there we have midnight dumping of toxics and thefts of trees from public forests. No amount of signs and regulation can keep some mountain trail walkers from cutting switchbacks. And though every state has litter laws, every state also regularly sends crews along its highways to pick up illegally tossed litter.

The situation is worse in countries with fewer enforcement resources, less respect for law, or no law at all. Rumors flow out of countries racked by civil war of the factions selling off forests and minerals to pay for their armies. From other countries come tales of corrupt judges or land officials awarding control of resources to wealthy exploiters. Drug lords make it dangerous to enforce any laws at all on some lands.

American history supplies its own examples of theft, corruption, and abuse of legal process. Around the turn of the century, the General Land Office of the U.S. Department of the Interior, which oversaw the public lands now largely managed by the Forest Service and the BLM, was corrupt and ineffective. Gifford Pinchot, founder of the Forest Service, wrote in his autobiography:

The administration of the public-land laws by the General Land Office of the Interior Department is one of the great [27 ELR 10459] scandals of American history. At a time when, in the West, the penalty for stealing a horse was death—death without benefit of law—stealing the public land in open defiance of law was generally regarded with tolerance or even with approval.18

Writing of the same agency, Charles Wilkinson has noted, "In addition to outright theft of timber, there was rampant abuse under the homesteading laws. The fraudulent schemes were so varied and colorful that no summary can do them justice…."19

In some cases, lawyers have been at the heart of schemes to bend the laws to get control of resources. In the late 1800s, after New Mexico became a territory of the United States, rings of officials and lawyers conspired to strip Spanish-speaking communities of land and water rights.20

We can take some pride that in the natural resource arena the United States has cured itself of widespread corruption and contempt for law. But we can take little comfort from that fact. Many of our most daunting natural resource problems are global. How can the law succeed in addressing greenhouse warming, tropical deforestation, or desertification when the law is not an effective tool to limit resource use in much of the world?

Working Toward Sustainability in Spite of It All

I do not know how it is with you, but for myself I generally give up at the outset. The simplest problems which come up from day to day seem to me quite unanswerable as soon as I try to get below the surface.21

Life is made up of a series of judgments on insufficient data, and if we waited to run down all our doubts, it would flow past us.22

These two quotations, both from Judge Learned Hand, capture something of the paradox of crafting and applying environmental law. Environmental problems are complex. We cannot be certain how best to solve them. Yet we have no choice but to try. We cannot put off our decisions; we can only decide to be passive or active.

The five hurdles to using law to promote sustainable development are, in the end, unavoidable. The question is not how to eliminate them, but how to succeed in spite of them.

There is no magic answer. The best strategy identified so far is a sort of sophisticated form of trial and error, performed while dealing with the hurdles as best you can. Political scientist and economist Charles Lindblom in the 1950s described the process of making policy through a series of incremental changes and called it "The Science of 'Muddling Through.'"23 Ecologist C.S. Holling and others in the 1970s advocated an approach blending incrementalism with ongoing scientific analysis of environmental problems. They called this informed, conscious application of experimentation "adaptive management."24 Kai Lee in the 1990s has analyzed adaptive management and argued for using it as the "compass" to guide environmental policy.25

The key to adaptive management is learning. Policymakers aim to solve problems and provide useful information in the process. Policy decisions are crafted both as solutions and as experiments, intending the results to inform future decisionmaking.

In light of the five hurdles discussed above, here are three ingredients for crafting and applying law to achieve sustainable development. They are largely inspired by the proponents of adaptive management but are arguably starting points for any successful policy.

Feedback

The first ingredient is feedback. Environmental policy is always imperfect. Problems inevitably arise. The firstneed is to be alert to the problems. Good monitoring of the environment and feedback on human impacts can alert you to when divisions of authority, lack of understanding, lack of advocates, or lack of controls are causing problems.

Feedback requires effort on many levels. It requires investing in basic scientific research, so that we may increase our understanding of environmental problems in the first place. It requires building monitoring and evaluation into every program that may affect the environment, a basic tenet of adaptive management. And it requires candid reflection from time to time on how our personal actions affect the environment.

When feedback is done carelessly, it is often done wrong. Focus too narrowly, look at the wrong indicators, or use an inaccurate measure and you get a false sense of the problems.26 Policymakers must design evaluation as carefully as they design the centerpieces of their programs.

Feedback or opportunities for feedback already exist under some environmental laws. For example, the National Forest Management Act directs the Forest Service to "insure research on and (based on continuous monitoring and assessment in the field) evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land."27 Forest Service regulations call for the Forest Service to evaluate implementation of its forest plans and to alter plans as necessary based on what it finds.28 In practice, though, "the Forest Service has historically given low priority to monitoring during the annual [budget-making] competition for scarce resources."29

[27 ELR 10460]

That lack of priority is not too surprising. Feedback can be tough to face, can provide ammunition to critics, and can force unpleasant changes of plans. No one is perfect; the news, even if mostly good, is likely to show up some problems. To go to bat within an agency for the governmental equivalent of a report card or a dental exam takes a certain strength of purpose.

Many in government, though, do value feedback. Perhaps the broadest effort ever to blend feedback into federal policymaking is going on now. The Government Performance and Results Act of 1993 (GPRA)30 requires all federal agencies to submit strategic plans to the Office of Management and Budget and to Congress by September 30, 1997.31 These plans will set out agency goals and objectives along with a description and schedule of program evaluations that the agency plans to follow. Beginning with fiscal year 1999, the agencies will prepare annual performance plans as part of every budget request to Congress. These performance plans will build on the strategic plans and include performance goals, indicators, and means of measuring and verifying "actual program results."32

The natural inclination of many agency officials will be to seek indicators that are sure to be easy to measure, verify, and defend before Congress. This will drive them to favor indicators that are already being tracked. Those may not be the best measures of problems hindering sustainability.

This GPRA process merits watching and involvement. Agency goals, objectives, and indicators will influence future agency budgets and in turn shape agency actions. Without outside prodding, the agencies are unlikely to adopt challenging new measures of success to reflect concerns about sustainability.

Flexibility

The second ingredient is flexibility. You must be able to act on the feedback. So, for example, if you find that authority over the environment is poorly divided, you must have the flexibility to shift authority or to coordinate it. If new information comes to light over resource use, or if new uses emerge, you must have the flexibility to respond.

But flexibility is tricky. People often shift authority to advance interests that have nothing to do with good government, sustainability, or environmental quality.33 Similarly, people often resist flexibility for personal motives. People with authority resist giving it up. People who deal with government invest time and money based on the existing rules and power structure and so also resist changes.34 Their concerns are real. We all want a legal system sturdy and predictable enough to support an orderly society. But we also need a legal system spry enough to dance to new tunes.

Like feedback, flexibility is built into some current environmental laws. The National Environmental Policy Act (NEPA), for example, encourages flexibility and coordination of split authorities. As part of the process of preparing an environmental impact statement, NEPA directs the responsible federal official to "consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved."35

One of the great experiments in coordination of agency action is the consultation requirement of the ESA. ESA § 7 requires all federal agencies to use their authorities to conserve listed species and to follow set procedures to involve the listing agency in decisions that may affect these species.36

In many ways, it has been a successful experiment. The law has prompted action agencies to call on the advice of the listing agencies in thousands of instances. In the vast majority of cases, the listing agencies have found no likely adverse effects on listed species or have informally convinced the action agencies to change their proposed actions to avoid adverse effects.37

Still, some agency officials treat ESA consultation as a forced intrusion on their turf, a hoop that they must jump through rather than an opportunity to improve their decisions. The U.S. Fish and Wildlife Service, one of two agencies that lists species, sometimes even has trouble getting the agency's own refuge managers to consult with the agency's endangered species experts.

Commitment

The failures of law to overcome human resistance to feedback and flexibility point to the need for the third ingredient: commitment. Feedback and flexibility can help overcome divided authority, limited understanding, and shifting goals. But it is basic commitment to environmental quality that fuels constructive change.

Laws seldom implement themselves. Involvement of people, inside and outside of government, makes laws work. We need to commit ourselves to look for environmental problems within the reach of law, overcome institutional inertia, and work toward creative solutions.

We also need to look beyond the boundaries of law and express commitment in all aspects of culture that shape [27 ELR 10461] human behavior. On a quasi-legal level, we should include environmental stewardship among the social obligations reflected in our codes of professional ethics. On a more individual level, that commitment should show through in the personal choices we make everyday.

Conclusion

The five hurdles outlined in this Dialogue guarantee that we cannot solve our environmental problems within the confines of law alone. Tackling tough problems, we sometimes unconsciously slip on mental blinders and head down narrow but familiar paths of analysis. To make environmental law work, we must be prepared to analyze its problems broadly. Our perspective must embrace institutional, scientific, political, economic, and social concerns. We must account for divisions of authority, information gaps, silent stakeholders, changing resource needs, and powers at work beyond the law.

The five hurdles also guarantee that laws that work today will not work forever. Watch for problems to emerge. Be prepared to tweak the law: to realign structures in government, to amend old laws and try new ones, and then to evaluate the results and try again. Only through active shaping and reshaping will law reliably contribute to sustainable development.

The problems posed by the five hurdles will not solve themselves. Only committed officials, lawyers, and citizens can keep governments focused on achieving sustainable development. The responsibility for that task falls to us all.

1. What is "sustainable development"? The World Commission on Environment and Development, better known as the Brundtland Commission, which set the stage for the 1992 Rio summit, defined sustainable development as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 43 (1987).

2. See WALLACE STEGNER, BEYOND THE HUNDREDTH MERIDIAN 315-16, 321-22 (Penguin Books 1992) (1954).

3. For an analysis of the division of control of the Columbia River and an argument for rational reform of splintered authority, explicitly harkening back to Powell, see Angus Duncan, Proposal for a Columbia Basin Watershed Planning Council, 10 ILLAHEE 287 (1994).

4. CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN 209 (1992), citing Charles F. Wilkinson & Daniel Keith Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 KAN. L. REV. 17 (1983).

5. See Seattle Audubon Soc'y v. Evans, 771 F. Supp. 1081, 1092, 21 ELR 21505, 21510 (W.D. Wash.), aff'd, 952 F.2d 297, 22 ELR 20372 (9th Cir. 1991).

6. For an example of how tax laws can affect environmental decisions, see Howard M. Shanker & Sanjay Gupta, Taxing the Environment, 27 ELR 10165 (Apr. 1997) (discussing the tax consequences of hazardous waste cleanup). Because it is so difficult to split subject matter lines clearly in the government, almost any kind of law may have unforeseen environmental implications.

7. An example is the effect of annual ad valorem property taxes on private forests. The tax creates an incentive to cut trees as soon as possible, thereby creating income and reducing the value of the property for tax purposes. To cure this problem, many states have instituted yield taxes. These states greatly reduce the property tax on forest land and levy instead a tax on timber harvests based on the value of the timber removed.

8. Thirty years ago, the architect Christopher Alexander described an analogous problem in the field of design. CHRISTOPHER ALEXANDER, NOTES ON THE SYNTHESIS OF FORM (1964). Say we want to design a better vacuum cleaner. To make the design process manageable, we have to break the problem down into separate issues. We may analyze the problem in terms of cleaning power, weight, cost, ease of use, power consumption, safety, or recyclability. Or perhaps we will break the problem down by physical subsystems, such as motor, powertrain and brushes, attachments, frame, and power supply. There are many ways to identify the issues—but no way is both perfect and practical.

However we slice things, none of the issues will be fully independent of the others. Safety influences cost. Reductions in cost may affect cleaning power. Changes in brush design require changes in motor and powertrain.

We have to divide our design problem into smaller parts, then coordinate the resulting separate design efforts. That may be manageable for design of a vacuum cleaner, but extremely difficult when constructing a more complex system, such as a nuclear plant, a regional growth plan, or an income tax.

9. DONALD LUDWIG ET AL., UNCERTAINTY, RESOURCE EXPLOITATION, AND CONSERVATION: LESSONS FROM HISTORY, 260 SCIENCE 17 (1993).

10. See infra note 13 and accompanying text.

11. Arthur V. Smyth, American Forestry: An Evolving Tradition in a World Turned Upside Down, J. FORESTRY, Jan. 1993, at 13.

12. Smyth correctly points out that changes in public values contributed as much as changes in scientific knowledge to these changes in the accepted norms of forest management. More will be said about changing values infra.

13. LUDWIG ET AL., supra note 9, at 17.

14. Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 364, 22 ELR 20913, 20915 (1992) (citations omitted).

15. Id. at 364 n.1, 22 ELR at 20915 n.1.

16. Id. at 366, 22 ELR at 20916, citing Sierra Club v. Morton, 405 U.S. 727, 734-35, 2 ELR 20192, 20194 (1972).

17. In a related vein, see Richard E. Rice et al., Can Sustainable Management Save Tropical Forests?, SCI. AM., Apr. 1997, at 44, arguing that economic pressures for unsustainable use of mahogany in South American rainforests may be so great that environmentalists would be better off to let the mahogany be harvested unsustainably but in a manner that allows protection of the remaining biodiversity in the forest; see also Michael McRae, Is "Good Wood" Bad for Forests?, 275 SCIENCE 1868 (1997) (a news report on this argument and the controversy surrounding it).

18. GIFFORT PINCHOT, BREAKING NEW GROUND 243-44 (Island Press 1987) (1947).

19. WILKINSON, supra note 4, at 121.

20. Clark S. Knowlton, Culture Conflict and Natural Resources, in SOCIAL BEHAVIOR, NATURAL RESOURCES, AND THE ENVIRONMENT 109, 125-30 (William R. Burch et al. eds., 1972).

21. Judge Learned Hand, quoted in GERALD M. WEINBERG, AN INTRODUCTION TO GENERAL SYSTEMS THINKING 8 (1975).

22. Judge Learned Hand, quoted in QUOTE IT! MEMORABLE LEGAL QUOTATIONS 303 (Eugene C. Gerhart ed. 1987), citing IRVING DILLARD, THE SPIRIT OF LIBERTY 137 (1960).

23. Charles Lindblom, The Science of "Muddling Through," 19 PUB. ADMIN. REV. 79 (1959).

24. See ADAPTIVE ENVIRONMENTAL ASSESSMENT AND MANAGEMENT (C.S. Holling ed. 1978).

25. KAI N. LEE, COMPASS AND GYROSCOPE: INTEGRATING SCIENCE AND POLITICS FOR THE ENVIRONMENT (1993).

26. See id. ch. 3, for a much more thorough discussion of some of the difficulties of getting reliable feedback in particular and practicing adaptive management in general.

27. 16 U.S.C. § 1604(g)(3)(C), ELR STAT. NFMA § 6(g)(3)(C).

28. 36 C.F.R. § 219.12(k) (1996).

29. GENERAL ACCOUNTING OFFICE, FOREST SERVICE DECISION-MAKING: A FRAMEWORK FOR IMPROVING PERFORMANCE 41 (Apr. 1997) (GAO/RCED-97-71).

30. Pub. L. No. 103-62, 107 Stat. 285 (1993) (codified in scattered sections of 5 U.S.C., 31U.S.C., 39 U.S.C.).

31. 5 U.S.C. § 306, GPRA § 3.

32. 31 U.S.C. § 1115, GPRA § 4.

33. Examples of nonconstructive governmental restructuring patterns include: (1) automatically requiring decisions to be made at high levels where either (a) a bottleneck develops because so many decisions crowd the desk or (b) the decisionmaker lacks the specialized background to resolve the issues well; (2) automatically requiring decisions to be made at low levels, even when coordination of branches would lead to better decisions; (3) requiring concurrence of opposite-minded agencies as a means of slowing progress; (4) assigning responsibility for decisions to a person or agency even though that decisionmaker has many other tasks and will give these problems low priority; and (5) assigning responsibility for a program to a person or agency to punish the person rather than to advance the program.

34. C.S. Holling has referred to the development of resistance to change as the "ossification" of agencies. Environmental Law Institute Colloquium on Economics, Ecology, and Sustainable Policies, Washington, D.C. (Jan. 10, 1995).

35. 42 U.S.C. § 4332(2)(C), ELR STAT. NEPA § 102(2)(C); see also 40 C.F.R. §§ 1501.6, 1508.5 (1996) (on designation and participation of "cooperating agencies" in the NEPA process).

36. See 16 U.S.C. § 1536, ELR STAT. ESA § 7; 50 C.F.R. pt. 402 (1996).

37. Of approximately 186,000 consultations between 1987 and 1995, all but about 5,000 were handled internally (implying findings of no likely effect or no likely adverse effect). See U.S. Fish and Wildlife Service Internet site, http://www.fws.gov/-9endspp/esa-stats.html. For earlier data, see GENERAL ACCOUNTING OFFICE, ENDANGERED SPECIES ACT: TYPES AND NUMBER OF IMPLEMENTING ACTIONS 30-32 (May 1992) (GAO/RCED-92-131BR).


27 ELR 10455 | Environmental Law Reporter | copyright © 1997 | All rights reserved