Vol. 14 No. 3 (March 2004)
THE LAW OF BIODIVERSITY AND ECOSYSTEM MANAGEMENT by
John Copeland Nagle and J.B. Ruhl.
New York: Foundation Press, 2002.
915pp. Cloth: $70.00. ISBN: 1-58778-134-4.
Reviewed by Geoffrey Wandesforde-Smith, Emeritus Professor
of Political Science, University of California, Davis. Email: gawsmith@ucdavis.edu
This is one of three very substantial books on wildlife
law published in the last two years.
The first to appear was an even larger book of cases and materials,
from the same publisher as the book under review here (Goble and Freyfogle
2002). The other is a second
edition of a book on animal law first published twenty years ago (Favre
and Loring 1983), but now revised and expanded (Favre 2003) to embrace some
of the same biodiversity and ecosystem management territory as the other
books mentioned.
All of these books can be seen as projects with the purpose
of breathing new life and vitality into environmental law, which is far
from dead but which has been more than a little depressed in the last decade. Congress has not managed to pass a single
major new environmental law initiative since the Clean Air Act was amended
in 1990. And prospects have
darkened further since the Bush Administration, in some of its very first
actions after assuming office, turned its back on the Kyoto Protocol to
the climate change convention and moved swiftly to reverse several important
environmental policy initiatives taken by the previous administration.
Behind all these recent legal writing projects lies a similar
perception-perhaps hypothesis would not be too strong a word. Nagle and Ruhl express the essence of
it this way:
[T]he science
of ecology-the study of ecosystems-has forged bold new paths in recent years
in tandem with the increased understanding of the importance of biodiversity.
An important overarching theme of much of this new work in ecology
is the dynamic, open nature of ecosystems and the processes which are in
constant flux (sic). We are
increasingly appreciating that ecosystems involve complex interrelations,
adaptive strategies for dealing with disturbance, and a sustainability that
depends on change. Boundaries
and parts have little meaning in such open systems. Yet humans have a difficult time managing chaos. Administrative convenience necessitates
some division and compartmentalization of complex management problems, even
if at the expense of a perfect description of the subject matter. Indeed, this, so far, has been the case
for the web of laws oriented-more accurately, being reoriented-toward ecosystem
management (pp.vi-vii).
In some ways this is an early twenty-first century reprise
of a theme that gathered political momentum in the 1950s and 1960s as the
leitmotif of the modern environmental movement. The theme was that statutes, policy, administration
and jurisprudence lagged behind what scientists knew about the condition
of the environment, about the ways in which it was changing (largely for
the worse), and about the impacts this was having on people and their quality
of life. Reform was needed,
therefore, in law and policy, as well as bold new initiatives in litigation,
to bring all the major institutions of government into line with the best
scientific thinking. And in
the 1970s and into the 1980s, prodded by the political power of environmentalists,
reform is what we got.
The outputs of this reform cycle now occupy hundreds of
pages in third and fourth editions of standard texts that in 1970 did not,
literally, exist (see, for example, Schoenbaum, Rosenberg and Doremus 2002). At the same time, as any political scientist
worth her salt would have predicted, we did not get the sorts of radical
change in laws or institutions demanded by the most virulent environmentalist
critics of American society, and certainly not changes situating legislators,
officials and judges at the bleeding edge of scientific understanding.
Most of the effort went into protecting public health from environmental
harms and into some refashioning of the rules and procedures regulating
access to and acceptable uses of natural resources.
An important but neglected outcome of these changes, Nagle
and Ruhl now argue, is that ecosystems and biodiversity were slighted as
objects of new laws, administrative agency rules, and lawsuits. And the time has now come, in their view,
because the supporting science makes it potentially very productive in terms
of conservation gains, to push much harder to redress this imbalance.
Their case for this rests almost entirely on a utilitarian recognition
of the legal and political action imperatives of ecosystem science.
Their book, somewhat surprisingly, has very little to say about the
moral, ethical or religious imperatives for protecting biodiversity. By contrast, Goble and Freyfogle
(2002) and Favre (2003) devote major attention to these topics. In an early part of their book, a short
sub-section of the second chapter, dealing with the question of why we should
care about biodiversity, Nagle and Ruhl reproduce (pp.39-43) parts of a
piece about "our covenant to protect the whole of creation" that former
Interior Secretary Bruce Babbitt published in 1996 in an animal law journal. But beyond this and a few related notes,
there is not much here about land ethics ˆ la Leopold (1949) or animal rights and welfare.
Having taken their stance, Nagle and Ruhl divide their
book into four unequal parts. The
first part begins (ch.1) with a detailed recitation of the saga of the Delhi
Sands flower-loving fly, a small, and to many seemingly useless, inhabitant
of the only inland sand dune system in the Los Angeles basin. Efforts to protect the habitat of the
fly and the creature itself have come up against continuing intense pressure
for human access to and development of the dunes. The resulting story and its politics raise many of the most
basic questions that biodiversity and ecosystem managers must face. The book then turns (ch.2) to an introductory
discussion of different types of biodiversity, reasons for wanting to conserve
it, the major threats to biodiversity, and (ch.3) to the various ways it
can be protected through both public and private measures.
The second part of the book (chs.4-6) is devoted to a discussion
and analysis of the Endangered Species Act, which Nagle and Ruhl observe
is "the most revered and reviled of federal environmental laws" and the
"culmination of nearly a century of legislation to protect rare wildlife"
(p.117), most of it developed on a species by species basis. There is not much new, here. There is a clearly focused discussion
of the ways in which species are identified and listed as threatened or
endangered and, thus, brought under the protection of the law (ch.4), of
the duties that the statute imposes on federal agencies to avoid harming
listed species (ch.5), and of the restrictions placed on private individuals,
corporations, and state and local governments ostensibly to guard against
the unauthorized taking of listed species (ch.6). But comparable discussions can be found elsewhere and, in the
end, this is not where Nagle and Ruhl want to direct our attention. Because it adopts a species focus as a
surrogate for ecosystem conservation, and because it fails to give ecosystem
management the visibility and priority they think it deserves, Nagle and
Ruhl essentially treat the Endangered Species Act as a relic. Part 2 of their book is, thus, just a
warm up for Part 3, the longest section of the text, where Nagle and Ruhl
examine what they call the "bundle of laws" that can "explicitly or impliedly
be advanced toward developing ecosystem-level policies designed to conserve
biodiversity" (pp.297-298).
This third part of the book is organized by ecosystems
and covers forests (ch.8), grasslands (ch.9), freshwater ecosystems (ch.10),
coastal and marine ecosystems (ch.11), and a variety of what Nagle and Ruhl
call extreme ecosystems (ch.12)-ecosystems either "so fragile that anything
beyond a de minimis human presence may do substantial harm" (deserts, certain
islands, and coral reefs are mentioned) or "already so dominated by human
presence that the question of harm to the ecosystem dynamics that existed
prior to human intrusion is moot" (some urban, agricultural, and recreational
places are discussed) (p.742). Since
Part 4 of the book, only two chapters long, deals sketchily with the different
roles domestic law can play in protecting globally significant biodiversity
resources (ch.13) and with treaty law (ch.14), and relies heavily on other
texts, it really is the third part of the book where Nagle and Ruhl hope
to make their mark.
What does this main part of the book teach us? There is not space, here, to consider
more than one example. Let's
take the case of forests. The
approach in this chapter follows that of the others in Part 3; a discussion
of what is known about forest ecosystems is followed by a primer on the
existing law of forest management, an enumeration of the bits and pieces
of law that arguably do or could promote ecosystem management, and a case
study. What emerges from this sequence of considerations,
more than anything else, is the tentative and even controversial status
of the law and policy of forest ecosystem management. In this case, Nagle and Ruhl ask their
readers to spend a great deal of time thinking about the Forest Service
rule on national forest land and resource management planning, issued late
in 2000. "Only time will tell,"
they write, "if the agency's shift of policy is a sea change or semantics.....[W]e
suggest that you read the three principal cases....and then pause to ask
what the Forest Service's duty is under the case law with respect to conserving
biodiversity. Then read the
materials on 'ecological sustainability' that follow the cases and ask yourself
whether the agency's duty has become more or less clear and enforceable
under the new rule" (p.413).
There is the basis, here, for interesting law school pedagogy.
But there is not much firm basis for concluding that ecosystem management
is alive and well and being practiced, either in the Forest Service or,
one might add, in the other agencies that make an appearance in other chapters
in Part 3 of Nagle and Ruhl's book.
Eventually, we read these words:
"Surely you noticed that the agency's new final rule was published
in the last days of the Clinton administration.
In addition to the litigation filed almost immediately thereafter,
. . . Congress and the incoming Bush administration took many shots at the
new rule. In May 2001, the Forest Service, under new direction, extended
for one year the date specified in the new rule by which all land and resource
management plans must comply with its terms" (p.450).
There is, in other words, a vitally important political
dimension to ecosystem management, and it is probably one that, for the
foreseeable future, will transcend any legal import and practical consequences
the term may have. What we
can take away from this is an understanding that books purporting to delineate
the main features of something as unsettled and uncertain as ecosystem management
are bound to have an hortatory component that outbalances any value these
books have as description and analysis of a settled empirical reality. But, as long as it is read in that spirit,
this particular book is an attractive and spirited call to arms and a book
exceedingly rich in the enjoyment of reading wildlife cases-cases where
there is always a heady mix of human drama, exotic creatures, and shifting
scientific ground.
REFERENCES:
Favre, David
S. 2003. ANIMALS: WELFARE, INTERESTS AND RIGHTS.
East Lansing, MI: Animal Legal and Historical Center, Michigan State
University-DCL College of Law.
Favre, David
S. and Murray Loring. 1983. ANIMAL LAW. Westport, CT: Quorum Books.
Goble, Dale
D. and Eric T. Freyfogle. 2002. WILDLIFE LAW: CASES AND MATERIALS. New York: Foundation Press.
Leopold, Aldo.
1949. A SAND COUNTY ALMANAC, AND SKETCHES HERE
AND THERE. New York: Oxford
University Press.
Schoenbaum, Thomas J., Ronald H. Rosenberg and Holly D. Doremus. 2002. ENVIRONMENTAL POLICY LAW: PROBLEMS, CASES AND READINGS. 4th ed. New York: Foundation Press.
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Copyright 2004 by the author, Geoffrey Wandesforde-Smith.