Showing papers in "Washington Law Review in 2007"

Precaution, Science, and Learning While Doing in Natural Resource Management

Abstract: Dealing with uncertainty is widely recognized as the key challenge for environmental and natural resource decisionmaking. Too often, though, that challenge is considered only from an ex ante perspective which treats uncertainty as an invariant feature that must be accounted for but cannot be changed. With respect to many natural resource management decisions, that picture is misleading. Decisions are often iterative or similar, providing significant opportunities for learning. Where such opportunities are available and inaction is not feasible or desirable, learning while doing can provide the benefits of both the precautionary principle and scientific decisionmaking while minimizing the key weaknesses of each. After highlighting the benefits of a learning-while-doing approach to natural resource management, this paper briefly addresses how management agencies might be encouraged to adopt such an approach. INTRODUCTION Uncertainty is the unifying hallmark of environmental and natural resource regulation. Dealing with uncertainty has been a major topic of academic interest for decades, but the debate has produced no firm or general conclusions. Two alternatives frequently put forward for dealing with uncertainty are the precautionary principle and scientific principles. Typically these two are presented as standing in opposition. Precautionary decisionmaking is described as favoring regulation when there is some evidence of risk to human health or the environment. Scientific decisionmaking is described as requiring proof of harm to support regulation. In either case, the emphasis is almost always on a single forward-looking decision that must be made based on a fixed level of available information. In this essay, I argue that a clearer picture of the challenges of uncertainty for natural resource management requires a wider temporal scope and additional degrees of freedom. Natural resource decisions typically do not present a single choice between two alternatives that, once made, remains fixed for all time. Far more often, multiple related decisions must be made over a long period of time, on the scale of years or even decades. Furthermore, the choices are more nuanced than "on" versus "off* or "open" versus "closed." There is room for a variety of conditions and limitations. Some decisions, such as how to operate a series of dams and reservoirs, what terms to include in a water pollution discharge permit, or whether and under what conditions to renew a public lands grazing lease, are explicitly temporary and therefore must be addressed repeatedly. Others are individually irreversible and therefore made only once, but belong to classes of decisions sufficiently similar that information gained from one can usefully inform another. Examples include salvage logging and wetlands filling. One more detail should be added to this picture. Much of the discussion of precaution versus science has been framed by the specific context of regulating novel technologies or products. In that context, preserving the status quo may have economic or human health consequences, but it generally appears to protect the environment. Natural resource management is different. A legacy of past decisions made without regard for nature means that the status quo is often both bad for the environment and strongly resistant to change. The large water projects that dot the west, for example, have brought much of the region's aquatic fauna to the brink of extinction. Because they provide water to both cities and farms, however, shutting them down is not a realistic short-term option. In other situations, the need for action to correct past decisions is clear, but the effects of potential restoration efforts are not. Decades of aggressive fire suppression, for instance, have transformed open Ponderosa forests into thickets of fir. These altered forests pose a fire risk to nearby human communities, but are also inhospitable to some species native to the Ponderosa system. …

Getting Dooced: Employee Blogs and Employer Blogging Policies under the National Labor Relations Act

Abstract: Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects employee "concerted activity" for "mutual aid or protection." Based on the text and purpose of the NLRA, as well as case law interpreting this statute, courts should adopt a two-part test to determine whether an employee blogger receives legal protection. First, courts should require that the blog constitute a "collective" blog or "spokesperson" blog to be protected. Second, courts should also require that the blog discussion reveal an intent to spur protected group activity. In addition to this two-part test, courts should hold that under the NLRA, employers may not create policies with overbroad restrictions concerning the material on the personal blogs of employees because such restrictions infringe on employee rights to engage in "concerted activity" for their "mutual aid or protection." An office employee works alone in a cubicle five days a week, rarely communicating with co-workers.1 She has not received a pay raise in two years and after talking with friends outside of work, she realizes that her earnings are far below the market rate. She is curious about the wages of co-workers, but never has the opportunity to discuss her concerns with them-her lunch break is only a half-hour long, and the breakroom lacks privacy due to the assistant manager's frequent eavesdropping on employee conversations. In addition to her low wages, she just learned that fringe benefits are being cut because of a downturn in business, and she will now be required to work weekend overtime. Frustrated by this apparent lack of control over her work life, she begins expressing her thoughts on a personal internet website, also known as a "weblog" or "blog."2 She emails co-workers and friends to invite them to read the blog. After the assistant manager hears two co-workers discussing the blog, he reports it to the manager. The manager then fires the employee blogger. The reason for the firing: Company policy prohibits employees from discussing employment-related issues in internet chat rooms or on any publicly available websites. As an increasing number of employees find themselves in front of computers throughout the workday, many have begun discussing working conditions on personal blogs.3 Recent studies reveal both the pervasiveness of employee blogging and a lack of employer policies specifically addressing blogging. In a telephone survey of 1000 adults, 5% of American workers reported that they maintained personal blogs, but only 15% of the respondents' employers had specific policies concerning work-related blogging.4 Of employees who work for companies with blogging policies, 62% say the policies prohibit posting any employer-related information on personal blogs.5 Sixty percent say the policy discourages employees from criticizing or making negative comments about the employer.6 Another study found that 85% of employers do not have a written policy outlining appropriate employee blogging material, while 8% of employers do have such policies in place.7 The issue of employee blogging has become popular in the media.8 The increased attention to employee blogging is largely attributable to a few popular blogs.9 Blogger Heather Armstrong was fired from her web-design job in 2002 for writing about work colleagues on her blog. …

Toward a Fairer Model of Consumer Assent to Standard Form Contracts: In Defense of Restatement Subsection 211(3)

Abstract: Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers' interests. Section 211 of the Restatement (Second) of Contracts creates such a tool. Subsection 211(3) provides: "[w]here the [merchant] has reason to believe that the [consumer] would not [assent] if he knew that the writing contained a particular term, the term is not part of the agreement." This rule has thus far been largely rejected and marginalized by courts and commentators as running afoul of the traditional duty to read, but in fact the rule is quite sensible. It is squarely grounded in the objective theory of contracts, which provides that a party's manifestations of assent are taken to mean what a reasonable party would think they mean. It also advances contract law by taking into account recent research into the cognitive limitations of human decisionmaking. Businesses should not be allowed to unfairly exploit consumers' limitations by inserting grossly unfair terms into their contracts. Although the unconscionability doctrine is an important fail-safe protecting consumers entering standard form contracts, subsection 211(3) is also needed to resolve the dissonance between the fictional duty to read on the one hand, and the reality of cognitive limitations and the objective theory of contracts on the other. INTRODUCTION Standard form contracts are nothing new. Neither are articles about standard form contracts.1 However, notwithstanding the voluminous treatment of standard form contracts in the literature, there is no uniform line of thought regarding the appropriate treatment of such contracts. Professor Todd Rakoff thus correctly observed that "the subject [of adhesion contracts] is inherently intractable."2 Put another way, since the problem of form contracts was first addressed, "contract law has died,131 and been resurrected,141 reconstructed,151 and transformed.161 Doctrines of adhesion,[7] reasonable expectations,181 and unconscionability[9] have all been advanced."10 But the battle continues.11 And the battle has been fought on an increasingly complex battlefield. Form contracts, once the purview of Industrial Revolution-era manufacturing companies and insurance companies, have now permeated virtually all industries and trades, and have also been wholeheartedly embraced by merchants in the online contracting environment.12 As Professors Robert Hillman and Jeffrey Rachlinski recently noted, "[t]he Internet is turning the process of contracting on its head."13 Through a few clicks of the mouse, consumers are agreeing in record numbers to unfavorable, one-sided terms in adhesion contracts. These include many of the standard favorite terms of businesses, such as arbitration clauses, damage limitations, and warranty disclaimers. But, in the online and software contract context, it also increasingly includes new creations such as spyware clauses14 and severe license restrictions.15 And, in spite of the breadth of the legal literature on such form contract terms, a clear resolution is still elusive. Contract law has always assumed that consumers have a duty to read the contracts which they sign and are thus bound by all terms in such contracts, regardless of their actual failure to read or understand such terms.16 The primary principle applied by courts to protect consumers from one-sided terms to which they did not subjectively agree is the unconscionability doctrine. …

Piecemeal Delisting: Designating Distinct Population Segments for the Purpose of Delisting Gray Wolf Populations Is Arbitrary and Capricious

Abstract: The Endangered Species Act (ESA) protects species that are in danger of extinction "throughout all or a significant portion of its range." After thirty-three years of protection by the ESA, the gray wolf is gradually recovering from the brink of extinction. Pressure to remove protections for existing gray wolf populations has mounted as human interests have increasingly conflicted with the gray wolf's resurgence. Most courts have defined the phrase "significant portion of its range" in the ESA to mean the historical range of a species. This interpretation is consistent with the legislative history of the ESA and the historical listing practices of the United States Fish and Wildlife Service (FWS). However, the FWS has recently designated and delisted discrete and significant gray wolf populations-termed "Distinct Population Segments" (DPSs)-based on the gray wolf's current range. This Comment argues that the FWS's action of designating and delisting these gray wolf DPSs is contrary to the ESA. By limiting the delisting analysis to the area within the DPS boundaries, the FWS circumvents the statutory requirement to assess threats to the gray wolf throughout its historical range. Moreover, this action does not comport with the DPS Policy promulgated by the FWS and National Oceanic and Atmospheric Administration (NOAA) Fisheries. Therefore the FWS's action of designating and delisting these gray wolf DPSs is arbitrary and capricious. The Endangered Species Act (ESA) provides substantial protection to species listed as threatened or endangered under the Act.1 However, local residents may carry negative attitudes toward listed species, arising from both real and perceived restrictions on private activity under the ESA.2 Listed predators may receive especially hostile treatment from local communities.3 Critics have also noted the low number of recovered species and have argued that the ESA's benefits do not outweigh the societal costs.4 As a result, once a species appears to recover, the United States Fish and Wildlife Service (FWS) may face significant pressure from residents in recovery areas to delist the species and remove ESA protections.5 The FWS has sought to address these criticisms by increasingly emphasizing recovery and delisting.6 This new emphasis has resulted in the delisting of several species in recent years,7 including the delisting of gray wolf distinct population segments (DPSs), which are discrete and significant populations of the endangered gray wolf.8 On February 8, 2007, the FWS published a Proposed Rule that simultaneously designated the Northern Rocky Mountain Population of gray wolves as a DPS and delisted it.9 The FWS also published a Final Rule that simultaneously designated the Western Great Lakes population of gray wolves as a DPS and delisted it.10 This Comment argues that the FWS's designation and delisting of the Northern Rocky Mountain DPS and the Western Great Lakes DPS is arbitrary and capricious. These latest delisting efforts manipulate the definition of "significant portion of its range"11 and limit the delisting analysis to the gray wolfs current range rather than the historical range.12 This tactic circumvents the statutory requirement that the FWS comprehensively assess the species' historical range in its delisting decision,13 and is also contrary to the purpose of the Services' DPS Policy.14 The delisting of the Northern Rocky Mountain DPS and the Western Great Lakes DPS is therefore arbitrary and capricious. Part I of this Comment introduces the history and success of gray wolf recovery under the ESA, as well as recent delisting efforts. Part II outlines the basic statutory framework of the ESA's listing process, focusing on section 4 and its listing and delisting requirements. Part III discusses the interpretation of the statutory phrase "significant portion of its range." Part IV analyzes case law holding DPS designations that bypass the ES A's statutory requirements to be arbitrary and capricious. …

Plainly Offensive Babel: An Analytical Framework for Regulating Plainly Offensive Speech in Public Schools

Abstract: The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations of student speech. This Comment clarifies the methodology applied in Fraser by demonstrating that the Court considered several distinct factors lower courts should analyze when determining whether student speech is plainly offensive. This Comment further proposes an analytical framework that follows the Court's approach in Fraser; lower courts evaluating the propriety of student speech should focus on the content, context, and consequence of the speech. Although students in public schools do not "shed their constitutional rights to freedom of speech ... at the schoolhouse gate,"1 those rights receive less protection in the school context.2 In three separate cases, the U.S. Supreme Court has approved limitations imposed by a school on student speech. First, in Tinker v. Des Moines Independent School District,3 the Court held that schools can regulate student speech that substantially disrupts school discipline.4 In Bethel School District v. Fraser,5 the Court went further, authorizing schools to regulate "plainly offensive" speech.6 Finally, in Hazelwood School District v. Kuhlmeier,7 the Court established that schools may regulate school-sponsored speech-regardless of whether the particular school-sponsored speech in question could be deemed disruptive under Tinker or plainly offensive under Fraser-provided that such regulation furthers legitimate pedagogical concerns.8 Despite the guidance provided by these student speech casesreferred to by commentators as "the Tinker trilogy"9-the exact borders of First Amendment protection of student speech in public schools remain unclear.10 Although hundreds of lower court cases have attempted to grapple with various restrictions imposed by schools on student speech,11 the Supreme Court has not revisited the topic.12 Lower courts are thus forced to rely on their own interpretations and analyses of the Tinker trilogy without further guidance from the Supreme Court. In particular, while the Fraser opinion discusses several factors relevant to determining whether speech is plainly offensive, it does not explicitly provide a coherent analytical framework.13 Lacking clear guidance, lower courts have not consistently interpreted and applied Fraser to determine if student speech is plainly offensive.14 This inconsistency is twofold. Some circuits have claimed to follow Fraser without applying all of the factors that the Court analyzed in its opinion.15 Other circuits have applied most or all of the factors discussed in Fraser without identifying a framework for lower courts and other circuit courts to follow.16 This Comment clarifies the methodology applied in Fraser and, based on that methodology, argues that several circuit courts have misapplied the decision. In Fraser, the Court implicitly focused on the content, context, and consequence of speech in determining whether it was plainly offensive. This Comment argues that to remain faithful to Fraser, lower courts should apply a framework that would only find student speech plainly offensive when the speech satisfies the content, context, and consequence factors of Fraser. Part I of this Comment briefly explains free speech rights under the First Amendment and the narrow circumstances where the government can regulate free speech. Part II of this Comment discusses the limitations that may be imposed on student free speech under Tinker, Fraser, and Hazelwood. …

From Stratton to Uscop: Environmental Law Floundering at Sea

Abstract: I. THE EVOLUTION OF OCEAN AWARENESS Roll on, thou deep and dark blue Ocean-roll! Ten thousand fleets sweep over thee in vain; Man marks the earth with ruin-his control Stops with the shore; -George Gordon, Lord Byron Childe Harold's Pilgrimage Canto the Fourth, CLXXIX In the late 1960s, the environmental movement was budding in the United States, and a land ethic was quickly emerging. The National Environmental Policy Act of 1969(1) ushered in a decade of environmental legislation addressing numerous areas of the human environment. In the midst of this environmental awakening, a report entitled Our Nation and the Sea2 was issued in January 1969 by a presidentially-appointed commission. This report of the Commission on Marine Sciences, Engineering, and Resources, commonly known as the Stratton Commission Report, provided the first comprehensive review and assessment of U.S. ocean policy. Because of its timing, people looking back often presume that the health of the nation's seas was the primary focus of the Stratton Commission Report. This was not the case. Environmental concerns, particularly pollution issues, were a recurring underlying theme in the Stratton Report, and threats to the ocean environment were certainly recognized. But like Lord Byron, Americans of the 1960s largely perceived the resources of the oceans as virtually infinite and did not seriously believe that man could cause long-term damage to the vast oceans. Rather, the Stratton Commission's work was influenced by a 1966 report of the President's Science Advisory Committee entitled Effective Use of the Sea,3 and the concept of effective use of oceans for exploitation of resources and expansion of economic activities permeates the report. The report was not so much the product of the environmental movement as it was of other developments of the previous decade. The first development was the United States' new emphasis on science after the Russian launching of Sputnik in 1958. Following a decade dedicated to winning the space race, Congress was ready to initiate a scientific program to address the exploration of the earth's "last frontier"-the oceans. The Marine Resources and Engineering Development Act of 19664 mandated the development of a comprehensive program of marine activities and created the Stratton Commission to "make a comprehensive investigation and study of all aspects of marine science . . . ."5 The Commission was directed to "[r]eview the known and contemplated needs for natural resources from the marine environment to maintain our expanding national economy,"6 and recommend a "[g]overnmental organizational plan"7 and an "adequate national marine science program that will meet the present and future national needs . . . ."8 The second development leading to the nation's need to consider a comprehensive national ocean policy was the quickly developing international law of the sea and ocean enclosure movement.9 At the commissioning of an oceanic research vessel in 1966, President Lyndon Johnson expressed concern about the competition for ocean resources, declaring that: [u]nder no circumstances, we believe, must we ever allow the prospects of rich harvests and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.10 The Stratton Commission Report reflected a more parochial concern, stating: "[t]here is the threat inherent in any failure by the Nation to utilize successfully its fair share of a major planetary resource; the United States simply cannot afford less than its best effort to utilize the global sea."11 National ocean policy was not just a question of use of coastal seas, but a question of assuring that the United States be able to exploit its fair share of global high seas resources. …

An Equal Protection Standard for National Origin Subclassifications: The Context That Matters

Abstract: The Supreme Court has stated, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause."1 Judicial review of legislative race-based classifications has been dominated by the context of the United States' history of race-based oppression and consideration of the effects of institutional racism. Racial context has also dominated judicial review of legislative classifications based on national origin. This pattern is seen, for example, in challenges to government affirmative action programs that define Latinos according to national origin subclasses. As a matter of law, these national origin-based classifications, like race-based classifications, are subject to strict scrutiny and can only be part of "narrowly tailored measures that further compelling governmental interests."2 In applying this two-pronged test to national origin classifications, courts have struggled to identify factors that determine whether the remedy is narrowly tailored and whether there is a compelling governmental interest. While courts have appropriately focused on race specific themes and experiences when the central feature of the classification is race, courts have not uniformly applied a national origin "context" when the central feature is instead national origin. National origin classifications, such as "Latino," often consist of members of various national origin subclasses. Thus, some courts have considered the historical and current discrimination against members of national origin subclasses as part of their equal protection analysis. However, courts often rely on race-based approaches to evaluating this history and do not uniformly assess subclass experiences. Some scholars and jurists have argued in favor of considering various cultural and ethnic components of national origin in such cases, including language and historical group assimilation. These approaches have neither comprehensively considered the full range of context relevant to an equal protection analysis of national origin subclassifications, nor have they gained a foothold in equal protection jurisprudence. This Article argues that context that is specific to and conscious of the experience and legal position of national origin groups matters just as much as racial themes and context in race-based legislation. It analyzes equal protection challenges to Latino classifications and presents a new approach to equal protection doctrine and discourse in which Latino national origin subclassifications are contextualized and recognized as legally relevant and operative. The Article demonstrates that the context that matters in national origin classification cases depends on factors associated with country of origin subclassifications, as well as the homogeneous classification of all persons of Latin American and Latino Caribbean descent as Latino. This Article's proposed uniform standard of review for national origin subclassifications depends upon the legal, historical, cultural, and political context of subclasses. To justify a contextualized definitional and constitutional analysis, it draws on the history surrounding the definition of "Latinos" and "Hispanics" in the United States. Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as "Latinos" and as subclass members. INTRODUCTION The Constitution's Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."3 The Supreme Court's equal protection jurisprudence designates all legislation identifying race-based categories for differential treatment as "suspect" and subject to "strict scrutiny. …

William H. Rodgers, Jr., and Environmental Law: Never Give Up, Keep on Going

Abstract: If the pages of the books and articles written by environmental law Professor William H. Rodgers, Jr., were put end to end, they would reach 5.8 times as high as the Empire State Building, would equal 6.7 Eiffel Towers, and could just barely be matched by twelve Seattle Space Needles. His scholarship is known for trenchant insights and rapier wit (of Judge Alex Kozinski, he once wrote, I am told that this judge, Kozinski, was one of the youngest ever honored with an appointment to a court of appeals. He should have gone to law school first.) But Rodgers is far more than a scholar with a sharp eye and sharp tongue. He is a teacher who enlightens as he entertains. Professor Rodgers also puts his knowledge to practical use in the courtroom on behalf of those lacking justice, on a fishing boat talking with working people, or sitting, talking quietly, and consulting with tribal elders. This essay looks at the tree his career has helped grow, consider some comments by others who have sheltered under it, and take note of the many contributions that Bill Rodgers has made, professionally and personally, to fertilizing the field of environmental and natural resources law.

Land Use Regulation: The Weak Link in Environmental Protection

Abstract: Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes. "I come no more to make you laugh," William Shakespeare, Henry VIII, Prologue. I. INTRODUCTION: PROPERTY IN LAND, NOT GREENED TO THE SAME EXTENT AS AIR AND WATER The sustainable use of land is crucial to the future success of many environmental initiatives. We recognize that the planet consists of three interrelated natural resources: air, water, and soil. Of the three, land has remained more resistant to environmental protection duties compared to the other two planetary life support systems, air and water. The regulation of private land use to achieve environmental protection objectives remains the weakest link in modern environmental law.1 Many of the major environmental challenges such as the control of nonpoint source water pollution, the conservation of biodiversity, and the limitation of automobile emissions, including carbon dioxide, are at the core of land use regulation problems. Yet, in the main, we continue to develop and abuse land, regardless of environmental stresses that development causes. As environmental protection once again rises on the political agenda, the need to address the gap between land use regulation and environmental protection is becoming more critical; the regulatory gap impedes or cancels much of the progress that we have made to improve the conditions of our air sheds and watersheds-let alone confront the linked challenges of biodiversity conservation and adaptation to global climate change. The reasons for the gap are multiple. The mismatch between physical problem areas and the crazy-quilt and increasingly dysfunctional overlay of political jurisdictions is supported by a deep-seated resistance to land use regulation. This contrasts with the wide-spread, if superficial, acceptance for the regulation of air and water. These factors are reflected by the difference in the property law regime for land versus that of air and water. Air and water are and always have been common property resources, and users have never had any expectation of exclusive control. Regulation simply canceled the custom of using them as sinks, but the state "took" no property from polluters because there were never firm common law rights to degrade air. In addition to the limitations imposed on air and water pollution by the doctrine of nuisance, the right to use water has always been an incomplete one.2 Land is another story: it has resisted heroic academic efforts to green it. The United States has successfully carved up the heritage of our land base into a series of private, exclusive entitlements,3 limited federal control largely to retained public lands, and enshrined the idea that land should be controlled at the lowest level of government, if at all. This process began with the English settlement in New England, and it continues unabated. Western property law has a fundamental bias toward the exploitation of all natural resources, especially land. The legislative process has generally operated-at least until recently-to reinforce the expectation that there will be few limits on resource exploitation. Our property law is a product of the legacy of late Roman legal thought and remains rooted in the idea of exclusive dominion subject only to the duty not to cause a nuisance. For example, this view lies behind the Supreme Court's dismissal of the argument that the purchaser of highly regulated wetland property assumes the risk of development denial with the quip, "[t]he [s]tate may not put so potent a Hobbesian stick into the Lockean bundle. …

Beauty and the Beast Within: On the Special Nature of Natural World Law

Abstract: We are here to celebrate Professor Rodgers and his life in environmental law. As it happens, they grew up together. The new notion of environmental protection gave Bill the chance of his lifetime, to which he returned his full energies, ideas, and writings. In a world of failed relationships, this one was a howling success. Although we have not seen each other more than twice in forty years, I feel a kinship with Bill that seems particularly close. The link is not simply our ages, nor our passion for environmental law, nor even the activism in which both of us seem to be constantly embroiled. Rather, it is the particular kind of environmental law that brought us into the field and that, even today, gets us up in the morning, engines running, ready to go. In our hearts, we are driven by the natural world. To be sure, Bill's treatises on the complexities of pollution control are the most comprehensive around, certainly among the more entertaining to read, and I have done my own work with these same subjects as well. But Bill came into the field with rivers and salmon, and I came in with rivers and dams, and when I lay our work together, I feel the pull of nature. Years ago, I remember being told by an exasperated attorney for the U.S. Army Corps of Engineers, "the trouble with you is that you just like moving water!" In truth, he was quite correct, and what is equally revealing is that he thought he was insulting me. Clearly, my attitude was insulting to him and everything his agency stood for. On reflection, it also insulted much that humans have been about since the dawn of time. That impulse makes the law of the natural world uniquely intense and difficult. This article attempts to identify that difficulty, and to propose a modest mid-course correction. The case could be made, indeed I once took a stab at it, that all environmental programs, be they the control of contamination or the management of resources, are based on a single operating principle. I am still willing to defend that thesis, but there is more to laws than their mechanisms. Laws intended to curb pollution and those intended to protect the natural world confront very different psychologies that make their challenges different in theory and practice. At the core, one is incidental and the other is intentional. It is the difference between manslaughter and murder. When we reflect on the damages of contamination, even in their most aggravated form with climate change, we are looking at something that is a byproduct of something else. We do not, through pollution discharges, set out to change the chemistry of the water, air, or stratosphere. It is not an accomplishment. It just happens, because we are too cheap or lazy to do better. Further, these impacts are largely correctible. With enough will, we can gadget our way out of almost any discharge using alternative technologies, production processes, fuels, and sources. It is even psychologically possible. Even the worst polluters do not go around boasting that they discharged a record amount of contamination. Therein lies the shaming power of the toxics release inventory. You are unlikely to overhear in a bar: "I really cut loose some carbons yesterday!" But you may well hear about how many shots the petroleum geologist got off last week in the backcountry of the Uncompahgre Forest. Consider now what brought Professor Rodgers into the Puyallup cases and environmental law. It was fisheries, and then the effects of dams, and then logging. The fact is we humans have wasted our fisheries precisely because we intended to catch every single fish we could. We blocked their rivers multiple times and for multiple purposes until we could find no more sites, all by design. We took down every virgin forest from California to Alaska, and we are right now mopping up the strays in British Columbia to the point that only a few museum stands remain. Not one tree fell by accident. Consider the highway program, the showcase of heroic engineering and the largest construction work in the history of the world. …

Recovery in a cynical time—with apologies to eric arthur blair

Abstract: The drafters of the Endangered Species Act envisioned a process in which a species at risk of extinction would be protected while the threats it faces are removed so that it recovers. Over the first three decades of experience with the Act, implementation has proved to be far more complex. Recovering at-risk species imposes two different types of requirements. Biologically, recovery is a demographic problem: the species's population must have increased in numbers and dispersed geographically to a point at which nature's random risks have been reduced so that the species is no longer in danger of extinction. The risk-management problem is equally important: there must be regulatory or other conservation mechanisms that are sufficient to prevent the species from slipping back into its at-risk status once the Act's protections are removed. Historically, species have been delisted as recovered when their demographic status was substantially improved and a risk- management system had been developed. Recently, however, the U.S. Fish and Wildlife Service has operationally redefined a crucial term in the Act's risk assessment standards and has begun delisting species whose populations are still geographically restricted. This core- area management approach raises substantial biological questions—particularly in a time of rapid climatic change.

Chumming on the Chesapeake Bay and Complexity Theory: Why the Precautionary Principle, Not Cost-Benefit Analysis, Makes More Sense as a Regulatory Approach

Abstract: "[H]istory reveals not merely that change is real but also that change is various. All change is not the same, nor are all changes equal. Some changes are cyclical, some are not. Some changes are linear, others are not. Some changes take an afternoon to accomplish, some a millennium. We can no more take any particular kind of change as absolutely normative than we can take any particular state of equilibrium as normative . . . . The challenge is to determine which changes are in our enlightened self-interest and are consistent with our most rigorous ethical reasoning, always remembering our inescapable dependency on other forms of life." INTRODUCTION Estuaries like the Chesapeake Bay ("Bay") and Puget Sound are in grave trouble. They each suffer from poor water quality, loss of habitat, and declining biodiversity, and efforts to restore their health are straining both public and private resources.2 While accomplishments are often recorded in the fight against these ills, it is clear these accomplishments "are not yet equal to the scale of the problems."3 The focus of this article is on the nation's largest estuary, the Bay. Despite the investment of billions of dollars to improve water quality,4 the Bay continues to suffer from severe environmental degradation that impairs statutorily protected uses such as "[t]he growth and propagation of fish (other than trout), other aquatic life, and wildlife."5 Among the most serious of the ills afflicting the Bay's water quality is nullification.6 Nutrification, which lowers dissolved oxygen levels in the water, sets off positive feedback loops7 further eroding the Bay's health. This article brings to the fore a largely overlooked source of the Bay's nutrification problem: the practice of chumming. Chumming involves dumping a slurry of decomposed or decomposing baitfish, usually menhaden, over the side of a boat to attract highly-prized game species like striped bass. The practice is widely used by Maryland's recreational fishing industry, which is an important part of Maryland's economy.8 Chum contributes to the Bay's serious nutrient enrichment problem by increasing biological oxygen demand, resulting in lower dissolved oxygen levels in the water.9 It also increases water turbidity and may be a source of bacterial disease in striped bass. The use of menhaden as baitfish is also contributing to the decline in populations of that critically important food and filter fish. Even though chumming adversely affects the Bay's water quality and threatens its biodiversity, neither the federal government nor Maryland currently regulates the practice. While Bay area regulators may believe that they have made an economically rational decision to attend to larger targets of opportunity such as nutrient discharges from sewage treatment plants and farm fields, the high cost and political flashpoints of addressing those large sources of nutrients have largely paralyzed legislators and regulators for nearly two decades.10 The result is that the Bay's nutrification problem is getting worse, and the bill for addressing the problem is getting bigger. The reluctance of regulators to address small sources of environmental problems, or even small environmental problems, is not unusual and is what makes the chumming story relevant to those who live outside the Bay's watershed. The premise of this article is that the failure of regulators to regulate chumming originates through a misapprehension about how complex natural systems like estuaries behave and also in an over-dependence on economic analytical methodologies, like bioeconomics and cost-benefit analysis. Economic approaches measure success based on the amount of pollutants taken out of the waste stream and undervalue broader, more difficult-to-quantify improvements to the receiving environment. Because economic approaches depend on factors remaining stable, they are also singularly ill-suited to constantly changing natural systems. …