The Wilderness Act and Climate Change Adaptation
Long, Elisabeth, Biber, Eric, Environmental Law
I. INTRODUCTION II. HOW THE WILDERNESS ACT CAN HELP US UNDERSTAND THE ROLE OF LEGAL FLEXIBILITY FOR CLIMATE CHANGE ADAPTATION A. The Wilderness Act: An Inflexible Law That Could Obstruct Climate Change Adaptation B. Climate Change and Wilderness Areas 1. Temperature and Precipitation 2. Synergistic Effects of Climate Change and Fire Suppression 3. Effects on Species Persistence and Distribution 4. Effects on Insects, Disease, and Invasive Species 5. Land Management Agencies' Responses to Climate Change Effects on Wilderness Areas III. POSSIBLE CLIMATE CHANGE ADAPTATION ACTIONS IN WILDERNESS AREAS A. Where Inaction is Deemed Unacceptable, Management Strategies May be Employed to Enhance Ecosystem Resilience and Resist Changes to "Buy Time." 1. Fire and Fire Surrogates to Restore Natural Fire Regimes, Improve Forest Health, and Benefit Plants and Wildlife 2. Actions to Control Insects and Disease Outbreaks 3. Actions to Control Normative Invasive Plant and Animal Species 4. Intensive Measures to Keep Endangered Plant and Animal Species Healthy in Their Current Range 5. Reintroductions of Native Plant and Animal Species After Disturbances and Extirpations Caused by Direct or Indirect Human Action B. Management for Realignment May Successfully Facilitate Changes C. Restraint 1. Passive Management in Wilderness Areas Allows for Adaptation 2. Resources May be Better Spent on Active Management in More Altered Landscapes 3. Uncertainties and Lack of Monitoring Caution Against Active Management 4. Political and Bureaucratic Pressures IV. What Management Choices are Possible Under the Wilderness Act? A. Management Agency Policy Handbooks Provide Broad Leeway Under the Wilderness Act 1. Biodiversity 2. Forest Health B. Statutory Restrictions on Agency Wilderness Management 1. Statutory Prohibitions and Exemptions 2. Demonstrating Necessity Under the Wilderness Act 3. Identifying the Appropriate Goals of the Wilderness Act C. Defining a Spectrum of Permissible to Impermissible Management Strategies for Climate Change Adaptation 1. Prohibited 2. Potentially Permissible: The Exceptions to Sections 4(c) and 4(d) 3. Permitted V. CONCLUSION
Policymakers, resource managers, lawyers, and legal scholars are all struggling with the implications of climate change for environmental and natural resources law. Substance, procedure, goals: All of the elements of environmental and natural resources law are up for debate in light of the effects that climate change will have. A common theme in those discussions is the need for more legal and political flexibility to allow for adaptation to climate change. But what kind of flexibility? How much? And at what cost? These are difficult questions that the environmental law community is just starting to get a handle on.
The Wilderness Act (1) is an excellent place to start answering these questions. The passage of the Act in 1964 was, in many ways, a precursor to the wave of federal environmental and natural resource laws enacted in the 1970s. (2) It was one of the first examples of the modern environmental movement flexing its political muscles and forcing legislative changes. (3) It marked a major paradigm shift in federal natural resources law and policy away from discretionary decision making by resource management agencies--decision making that was primarily intended to allow for significant amounts of human management, development, and exploitation of natural resources for human use and enjoyment. (4) The Wilderness Act removed some discretion from management agencies, providing Congress with primary decision making authority: It retained sole authority to create, eliminate, expand, or contract wilderness areas. …