A Train without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law

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  I. INTRODUCTION
 II. NEW THINKING IN ENVIRONMENTAL AND NATURAL RESOURCES LAW
     A. Responding to the Scientists: Ecosystem Management
        1. Ecological Foundations of Ecosystem Management
        2. The Impact of the Science on Institutional Design
     B. Lessons from New Governance Writers
III. THE ROLE OF LAW AND ENVIRONMENTAL PROTECTION GOALS IN NEW
     APPROACHES
     A. Goals in Ecosystem Management and New Governance Writing
     B. Problems with Ecological Integrity and Process-Generated Goals
        1. Goals That Are Too Broad
        2. Can Broad Goals Combined with Flexible Benchmarks Achieve
           Better Environmental Protection?
 IV. CASE STUDIES: THE CHESAPEAKE BAY PROGRAM AND THE RAMSAR
     CONVENTION ON WETLANDS OF INTERNATIONAL IMPORTANCE
     A. Introduction to the Case Studies
     B. The Chesapeake Bay Program and Protection of the Blue Crab
        1. The Chesapeake Bay
        2. The Chesapeake Bay Program
           a. The Chesapeake Bay Program Viewed Through its
              Constitutive Agreements
           b. The Chesapeake Bay Program at Work
        3. The Blue Crab--Beautiful Swimmers
           a. Science First
           b. Stakeholders and Information Gathering
           c. Post-BBCAC Crab Protections
        4. Goals and Protection of the Blue Crab in the Chesapeake Bay
     C. The Ramsar Convention on Wetlands and the Protection of
        Wetlands
        1. The Convention's Obligations
        2. The Convention's Substantive Obligations: Wise Use and
           Conservation
        3. The Ramsar Convention and Goals
  V. FILLING THE GAPS
     A. The Missing Goals
     B. A Process for Developing the Substantive Law
     C. The Need to Bring Back a Substantive Role for Law
 VI. CONCLUSION

I. INTRODUCTION

The message in environmental and natural resources law is also the message in administrative law, constitutional law, international law, and legal theory: we live in a complex society where laws designed for particular purposes can have unanticipated consequences, (1) where bureaucracy is too slow and cumbersome to respond quickly and efficiently enough to those consequences, (2) and where the traditional structure of top-down lawmaking is under siege as too rigid, too hierarchical, and too contentious (3) to achieve its goals. The world we live in, as legal writers spanning a range of fields tell us, requires new forms of governance.

Both within and beyond the environmental law field, writers have begun to address the institutional design challenges raised by these insights. Their work commends and proposes, among other things, flexible mechanisms for resolving regulatory problems, responsive and adaptive regulation, enhanced involvement of private actors in the traditionally public sphere of bureaucracy and its implementation, and deeper collaboration with stakeholders. (4) In the environmental context, this work also advocates a more holistic approach to environmental protection, moving away from a focus on separate media like air, water, and waste. (5) And such work recognizes the importance of a multiscale approach to environmental protection efforts, abandoning the traditional dichotomy of local versus federal, and embracing instead multiple scales of governance. (6)

There is no shortage of examples of the kind of governance models advocated in response, or examples of apparently successful implementations of the models: democratic experimentalism; (7) collaborative ecosystem governance and collaborative governance; (8) ecosystem management and adaptive ecosystem management; (9) modular regulation; (10) autopoiesis and self-reflexive law; (11) eco-pragmatism; (12) and the harnessing of global networks, (13) to name a few of the most prominent. Not all of these approaches are the same by any means. (14) They differ sometimes in substance, sometimes in underlying theoretical foundation. …