How Can We Fix Our Legal System to Protect the Environment?

We have made much progress in understanding how ecosystems (forests, oceans, the atmosphere, and so on) function and provide the services upon which human communities depend—air and water purification, waste disposal, climate stabilization, pollination, photosynthesis, and soil generation. These and other ecosystem services are priceless. Even if it were physically possible to replace them (highly unlikely, since they involve dozens if not hundreds of self-regulating ecological interactions), the economic cost would be prohibitive.

The dependence of human well-being on the continued flow of ecological services notwithstanding, as the global economy has grown, many ecosystems have been stressed to the point where the services they provide are threatened. Fundamentally, when there is a conflict between economic development (driven by humans’ desire for greater material security and comfort) and preservation of ecosystems, and when the playing field that decides this competition is the “market,” development always wins. This occurs because ecological systems, though necessary to human society, are essentially without market value.

Even when development and the environment compete in the arenas of policy and politics, where the environment has occasionally won locally, nationally, and internationally, the viability of whole ecosystems rarely enters the equation. Ecosystem services are similarly taken for granted in the arenas of policy and law.

The Law and Policy of Ecosystem Services fills this gap. More specifically, it explores why law and policy fail to account for ecosystems and the services they provide (which the authors refer to as the “tragedy of ecosystem services”), and it suggests how we might integrate ecosystems into a market economy.

The book is organized into four parts: (1) context (including ecology, geography, and economics); (2) law and policy (including property rights, regulation, and social norms); (3) case studies (nine in all); and (4) the design of new law and policy for ecosystem services. The first three parts are all well researched and well worth reading from start to finish. Part four, on solutions, provides a number of worthwhile ideas for incorporating ecosystem services into law and policy, though strategies and tactics for doing so are missing.

In the first part, the authors—law professor J. B. Ruhl, agribusiness economics professor Steven Kraft, and geography professor Christopher Lant—summarize the research and thinking to date on the three major academic threads woven into the ecosystem services concept: ecology, economics, and geography. These chapters provide the necessary background to understand what ecosystems are, the functions they perform, and how those functions then provide many services that underpin the very existence of human communities. As the authors state, “Tremendous advancement has been made in the past decade toward improving our understanding of the ecological dynamics of ecosystem services, their geographical distribution across landscapes, and their economic value to human communities” (p. 9).

The second part of the book, with chapters on property rights, regulation, and social norms, is devoted to understanding how and why the law fails to account for ecosystem services. It is an effective and detailed review of how the United States has dealt with natural capital (barely and badly) over the years. In particular, the authors identify a systemic “anti-ecosystem services bias” and draw the conclusion that “American property law is not simply neutral on the question of private property rights in natural capital and ecosystem services but downright hostile to them” (p. 109).

Chapter four highlights one positive point, namely the “public trust doctrine.” Law professor Joseph Sax identified this idea in the 1970s as the only legal doctrine with the breadth and substance to be useful as a comprehensive approach to natural resource (and ecosystem services) management. The authors of Law and Policy describe how the doctrine has been used in this way but explain that, while it may one day fulfill this role, so far the U.S. Supreme Court has declined to take it there. Recent proposals (not mentioned in the book) to expand the “commons sector” of the U.S. and global economies by creating “common asset trusts” to manage the atmosphere, water, and other natural capital assets (structured like the Alaska Permanent Fund or the many existing land trusts) may be one way of implementing the public trust doctrine.1,2

The chapter on regulation explores why governments apply regulations and the rationales on which they are based. It looks at the way the common law on nuisance, for example, has stretched to encompass governmental action against pollution but nonetheless still neglects to protect ecosystems. In turn it suggests that, even though the common law on property and the current regulatory regime have provided only limited protection to ecosystems, they have nonetheless “crowded out room for social norms to develop” (p. 166–167).

The nine case studies (all taken from the U.S.) in part three explore how ecosystem services and natural capital have played out in practice in several different contexts. The cases include water law and policy, integrated watershed management, the Conservation Reserve Program and other agricultural policies, mitigation banking, and pollution trading. All of these highlight the promise, pitfalls, and limitations of applying conventional institutional frameworks to managing ecosystem services.

The authors recognize that there are many social traps that militate against our ability to manage ecosystem services effectively. Solving this “tragedy of ecosystem services” requires new law and policy, new and more integrated models, and new instruments and institutions. Part four thus describes the law and policy needed for effective ecosystem services management and suggests a number of actions for a variety of contexts (e.g., public, private, and hybrid ownership regimes). The authors suggest the evolution of the common law on property rights, an expansion of the public trust doctrine, new forms of regulation, and the strengthening of social norms.

Regarding models, for example, the authors describe why “models employed for purposes of decision making about natural capital and ecosystem services must be integrated between resource and human systems and between spatial and temporal scales” (p. 260). These truly integrated models are beginning to be developed3 and can be effective tools in understanding and quantifying how ecosystem services work and how they contribute to human well-being.

Issues of property rights are also critical in creating effective new policies. In particular, the authors suggest that the doctrine of nuisance law could effectively evolve to incorporate ecosystem services. As they state, “It is remarkable how straightforward an exercise it is to outline a set of common law rights and liabilities that put ecosystem services into play as the essential fabric of a new stage in the development of the common law of nuisance” (pp. 267–268).

Because many ecosystem services exist in a hybrid property regime, where services valuable to the larger community emanate from private property (but cannot be captured by the property holder), we have to move beyond private property doctrines to effectively manage ecosystem services. The authors suggest that the public trust doctrine may form the basis for a suite of new institutions that will be better able to manage the ecological and social commons.

The authors also explore how regulation can be “reinvented” so as to preserve economic efficiency but still take account of ecosystem services, and they propose an expanded set of options in place of historical command and control forms. These include requirements for information disclosure and management, planning and assessment requirements, economic incentives and disincentives (subsidies, taxes, and fees), and market-based systems (e.g., cap and trade regimes).

The authors fully recognize that ecosystem services are not “the silver bullet that will deliver environmental law and policy from the problems of our present and future.” But they also recognize that “we could be making far better decisions, throughout government and the economy, than we are today when it comes to natural capital and ecosystem services” (p. 296). Law and Policy has helped and will continue to dramatically help that cause.

My only caveat is that this excellent treatment lacks any consideration of the political environment in which the suggested changes need to happen and also fails to suggest strategies and tactics for moving forward. Elegant legal doctrines for the protection of ecosystems may get a warm reception in law reviews and elite universities, but how do they get treated by Federalist Society judges who think that any interference with an owner developing property is a taking for which she must be compensated? How will new policies and regulations be enacted when one political party advocates the elimination of the Environmental Protection Agency and denies the existence of anthropogenic climate change? And how does one convince a workforce concerned with job security and wage decline to forgo economic development in order to preserve ecosystem services that are largely taken for granted? Of course, anyone who can answer these questions will be in much demand during the coming political season.