Law and Ecology

The Rise of the Ecosystem Regime

Richard O. Brooks, Ross Jones

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780754620389
• eBook ISBN:
  9781351922906
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In 1970 Earth Day was first celebrated marking the dawn of worldwide environmental consciousness and the passing of many environmental laws. In part, these events were the result of the maturing of the science of ecology which recognized the interdependence of the web and cycles of nature. This volume explores the relationship between ecology and environmental law, beginning with a description of the two very different disciplines. This description is followed by a history of their episodic interactions: the early period of origin, the mid-century formative period from 1950 to 1970, the initial serious period of interaction after Earth Day in 1970 and the testing of the relationship during the next two decades. Utilizing a number of case studies, examinations of the key 'linkage persons', legal instruments and the migration of ecological concepts and frameworks, this book analyzes the final flowering of an ecosystem regime which embraces the connections between the two disciplines of ecology and environmental law. Concluding with an inventory of the problems posed by the relationship between the two disciplines and an agenda for future research, this clearly structured, comprehensive and stringent book is an essential resource for all serious scholars and students of ecology and environmental law.

1 The Problem

There was a moment in the spring of 1979 when Mono Lake (California) environmental advocates seemed to be sweeping all before them. The lawsuit was underway. The Mono Lake Committee had a thousand members and was ready to incorporate in its own name. At the same time, the National Guard was about to blast a second moat in the land bridge, threatening breeding birds on a previously isolated island. A task force of government agencies was wrestling with the Mono problem, and in Sacramento a legislator had introduced a ‘save-the-lake bill.’ This high drama was but a stage in the struggle which began with the ancient Great Basin when water covered most of Nevada, or 15,000 years ago when the Great Basin Lakes were still scattered throughout the Utah, Nevada and Southern California range. But the human struggle began when, at the turn of the last century, Mulholland and Easton made a secret trip to Owens Valley and began to plan the drainage of Sierra Nevada lakes to slake the increasing thirst of a growing Los Angeles. Aqueducts were built, water sucked out and the slow decline of Mono Lake soon began.

— John Hart, Storm Over Mono¹

There is a growing public recognition that one of the most important public uses of the tidelands — a use encompassed within the tidelands trust — is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area … Mono Lake is a navigable waterway … It supports a small local industry which harvests brine shrimp for sale as fish food, which endeavor probably qualifies the lake as a ‘fishery’ under the traditional public trust cases. The principal values plaintiffs seek to protect, however, are recreational and ecological — the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds … [I]t is clear that protection of these values is among the purposes of the public trust.

— National Audubon v. city of Los Angeles²

Introduction

The story of Mono Lake and its protection symbolizes the coevolution of ecology and environmental law in America and the emergence of place-based ecosystem regimes. Mono Lake is a saline lake whose food chain dramatizes the workings of an ecosystem. The lowering of the water table through the Los Angeles [water] withdrawals dried up some of its tributaries, lowered the very level of the lake itself, exposing the previous water-based tufa towers, eradicating some aquatic plant life, and leaving an alkali band around the lake, producing dust storms and ultimately threatening the base of the lake’s food chain, the brine shrimp themselves. As early as 1972, the first ecological study of the lake was completed to be followed by many more over the years, climaxed by a National Academy of Sciences study in 1987: The Mono Basin Ecosystem: Effects of Changing Lake Level.³ This elegant study identifies terrestrial and aquatic species, projects their future population levels, estimates the critical level needed to support this wildlife population, describes the hydrology of Mono Lake, estimates the impact of water withdrawals on the populations and assesses the significance of changes in wildlife populations.⁴ The history of the Mono Lake case is the story of growing ecological sensitivity to continued exploitation of ecosystems and increasing awareness of ecological knowledge needed for the legal protection of this lake. What began as an environmentally insensitive water withdrawal spurred by the thirst of Los Angeles, leading to a series of ad hoc lawsuits, eventually led to a deep understanding of the ecology of the lake ecosystem. The public began to comprehend the profound ecological impacts of water withdrawal from a delicate arid zone lake. New ecologically-informed court opinions were handed down and new ecosystem legislation was adopted to protect the lake. In short, the political and ecological history of Mono Lake illustrates the gradual emergence of a public awareness of the values of this beautiful place, the slow creation of new institutions and modification of old ones to manage the Mono Lake ecosystem, and the availability and usefulness of the science of ecology to these efforts. All of these were infused into the resulting ecosystemic legal regime, which saved Mono Lake.

The Rise of the Ecosystemic Regime

The history of Mono Lake is one of many stories illustrating the history of the rise of an ecosystemic regime,⁵ i.e., new social institutions or clusters of institutions designed to properly govern ecosystems. Within these regimes the science of ecology is applied through environmental laws which are part of the regimes.⁶ The vision, method and conclusions of ecology are at the center of these ecological regimes, and hence embody ecological governance through law. Building upon our account of the history of ecosystem regimes, we introduce the idea of a “regime of ecosystemic law” in which law and ecology mutually inform each other’s content, method and purpose. By “regime” we mean the cluster of rules and roles which govern our practices in regard to a given ecosystem. By “ecology” we mean the scientific study of the systematic interdependencies of the biotic and abiotic environment. By “ecosystemic laws” is meant those laws which seek to regulate human activities with explicit awareness of the structure, function and integrity of the ecosystems and the biodiversity within those systems affected by those activities.⁷ It is our contention that ecology is the central discipline for understanding both a viable environment and the modern threats to that environment.

Table 1.1 ECOSYSTEMIC LEGAL REGIME

A cluster of rules and roles which 1. Originate out of a concern for human interventions in the structure and functioning of ecosystems; 2. Define their objectives in terms of the maintenance and/or restoration of these ecosystemic functions and structures; 3. Rest upon a public culture of awareness of the ecosystem, landscape or global system; 4. Provide for systematic collection of information about ecosystem, landscape and global systems, organizing that information in system terms, and projecting the future functioning of that system; 5. Define the geographic boundaries in terms of the different levels of ecosystems including specific ecosystems, landscape features, and global systems; 6. Establish management controls in terms of parameters of ecosystem functioning; 7. Provide for feedback evaluation about the effects of human activities within ecosystems and evaluation of efforts to manage those activities.

The growth of the ecosystemic legal regime has been underway for at least the past half-century.⁸ Its early history was the result of the independent evolution of the discrete spheres of ecology, public culture, political theory, and environmental law. Since 1970, there has been an episodic coevolution of ecology and environmental law, along with changes in our public culture. Thus, ecology has informed and shaped important areas of environmental law including coastal management, endangered species protection, forest management and a variety of global pollution problems. For example, the environmental law effort to protect endangered species and more broadly, biodiversity, has led to the creation of the field of conservation biology which in turn has modified both the Endangered Species Act and other laws designed to protect biodiversity. The public’s interest in laws mandating mitigation of environmental change and restoration of environmental sites has led to the creation of the discipline of restoration ecology. The legal regulation of estuaries has stimulated the development of estuarine science.⁹

The understanding of the relationship between ecology and modern law cannot be understood without a full understanding of the notion of regimes identified above. The study of regimes was introduced by Oran Young in the early 1980s to describe the institutional context in which decisionmakers make decisions about natural resources and ecosystems.¹⁰ The 1980s and 1990s may be viewed as the history of the creation of a series of new environmental regimes, poetically described by one political theorist as “institutions for the earth.”¹¹

While the science of ecology was steadily emerging over the past century and a half, environmental law, as a body of law, assumed its present shape only in the mid-twentieth century in response to specific environmental problems of water and air pollution, harmful pesticides, clear-cutting of forests, dumping of hazardous and radioactive wastes and the public demand f...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Tables (includes definitions and case examples)
• List of Bridge Documents
• Preface
• Acknowledgments
• 1 The Problem
• 2 The Early History of Ecology and Environmental Law
• 3 Before the Dawn – Ecology and Environmental Law at Mid-Century
• 4 The Lovers’ Quarrel Between Law and Ecology
• 5 The Shy Embrace of Law and Ecology
• 6 The Courtship of Law and Ecology
• 7 The Marriage: Ecological Planning for Environmental Law
• 8 Ecology and Law in the 1990s – The Law of Place-Based Ecosystem Regimes and Management
• 9 The Ecosystemic Regime and Biodiversity Protection in the 1990s
• 10 International Environmental Law Regimes: Coming of Age in the 1990s
• 11 Conclusion: Lessons of History and Future Directions
• Bibliography
• Index