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.