Harnessing the power of information to protect our public natural resource legacy

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1575-1599

  Flournoy, Alyson C ^a   Halter, Heather ^a   Storz, Christina ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 50049098245     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (102)

1. See, e.g., Estuary Protection Act § 1, 16 U.S.C. § 1221 (2000) ("Congress finds and declares that many estuaries in the United States are rich in a variety of natural, commercial, and other resources, including environmental natural beauty, and are of immediate and potential value...."); Coastal Zone Management Act of 1972 § 302, 16 U.S.C. § 1451(a) (2000) ("[T]here is a national interest in the effective management, beneficial use, protection, and development of the coastal zone."); National Forests Management Act of 1976 § 11, 16 U.S.C. § 1609(a) (2000) ("Congress declares that the National Forest System consists of units of federally owned forest, range, and related lands throughout the United States and its territories, united into a nationally significant system...."); Federal Land Policy and Management Act of 1976 § 102, 43 U.S.C. § 1701(a)(2) (2000) ("[T]he national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use is projected through a land use planning process....").
2. See, e.g., National Park Service Organic Act § 1, 16 U.S.C. § 1 (2000) ("The service shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations... to conserve the scenery and the natural and historic objects and the wildlife therein... by such means as will leave them unimpaired for the enjoyment of future generations."); Land and Water Conservation Fund Act of 1965 § 1, 16 U.S.C. § 460 (2000) ("The Congress finds and declares it to be desirable that all American People of present and future generations be assured adequate outdoor recreation resources...."); National Historic Preservation Act Amendments of 1980 § 101(a), 16 U.S.C. § 470(b)(4) (2000) ("[T]he preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans...."); Archaeological Resources Protection Act of 1979 § 2(b), 16 U.S.C. § 470aa(b) (2000) ("The purpose of this chapter is to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands...."); National Wildlife Refuge System Improvements Act of 1997 § 4, 16 U.S.C. § 668dd(a)(2) (2000) ("The mission of the [Wildlife Refuge] System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources... for the benefit of present and future generations of Americans."); Wilderness Act § 2, 16 U.S.C. § 1131(a) (2000) ("[I]t is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness."); 16 U.S.C. § 1221 (2000) ("Congress finds and declares that many estuaries in the United States are rich in a variety of natural, commercial, and other resources, including environmental natural beauty, and are of immediate and potential value...."); Wild and Scenic Rivers Act § 1, 16U.S.C. § 1271 (2000) ("It is hereby declared to be the policy of the United States that certain selected rivers... possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values... and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations."); 16 U.S.C. § 1451(a) ("[T]he coastal zone is rich in a variety of natural, commercial, recreational, ecological, industrial, and esthetic resources of immediate and potential value to the present and future well-being of the Nation."); 16 U.S.C. § 1609(a) ("Congress declares that the National Forest System consists of units of federally owned forest, range, and related lands throughout the United States and its territories, united into a nationally significant system...."); Alaska National Interests Lands Conservation Act § 101, 16 U.S.C. § 3101(a) (2000) ("In order to preserve for the benefit, use, education, and inspiration of present and future generations certain lands and waters...."); Emergency Wetlands Resources Act of 1986 § 2, 16 U.S.C. § 3901(a)(9) (2000) ("[T]he existing Federal, State, and private cooperation in wetlands conservation should be strengthened in order to minimize further losses of these valuable areas and to assure their management in the public interest for this and future generations."); National Maritime Heritage Act of 1994 § 2, 16 U.S.C. § 5401(5) (2000) ("The preservation of this irreplaceable maritime heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, and economic benefits will be maintained and enriched for future generations of Americans."); National Environmental Policy Act of 1969 (NEPA) §101, 42 U.S.C. §4331(a) (2000) ("The Congress... declares that it is the continuing policy of the Federal gvernment... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."); Energy Reorganization Act of 1974 § 2, 42 U.S.C. § 5801(a) (2000) ("The Congress hereby declares that the general welfare and the common defense and security require effective action to develop, and increase the efficiency and reliability of use of, all energy sources to meet the needs of present and future generations....").
3. See, e.g., Multiple-Use Sustained-Yield Act of 1960 § 2, 16 U.S.C. § 529 (2000) ("The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom."); 16 U.S.C. § 1604(e) (requiring that forest-management plans provide for multiple use and sustained yield); Magnuson-Stevens Fishery Conservation and Management (Magnuson) Act §301, 16 U.S.C. § 1851(a)(1) (2000) (setting a national standard under which "[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry"); 43 U.S.C. § 1701(a)(7) (mandating that federal land be managed on the bases of multiple use and sustained yield).
4. The concept of a generation is somewhat imprecise; it is a construct, not a physical reality. The word is used here and elsewhere to refer both to a group of individuals of roughly the same age and to the period of time between the birth of succeeding generations. See, e.g., MERRIAM- WEBSTER'S COLLEGIATE DICTIONARY 521 (11th ed. 2006) (defining generation as both "a body of living beings constituting a single step in the line of descent from an ancestor" and "the average span of time between the birth of parents and of their offspring").
5. In addition to these federal laws, at least thirty-two states include references to the interests of future generations - or references to sustainability or sustainable development - in statutes related to the use of natural resources. A complete list of these states and state statutes is on file with the author. Some are more protective of the resource legacy - making it an explicit priority among competing demands - and others merely invoke it in a list of competing priorities to be reconciled, with little direction to prioritize resource interests of future generations. Compare, e.g., MINN. STAT. ANN. § 116P.01 (West 2005) ("[T]o ensure wise stewardship of the state's environment and natural resources for the benefit of current citizens and future generations... requires foresight, planning, and long-term activities.... [To] undertake such activities properly, a long-term, consistent, and stable source of funding must be provided."), with TEX. AGRIC. CODE ANN. § 2.004 (Vernon 2004) (providing that the Agriculture Policy Board shall "advocate and recommend strategies for agriculture that enhance agriculture production, income, and employment, that benefit consumers, and that promote efficient and sustainable use of natural resources").
6. For example, the "take" prohibition in the Endangered Species Act, while not absolute, is frequently cited as a rare example of a relatively strong mandate that makes clear how to resolve a conflict among competing values. See, e.g., Federico Cheever & Michael Balster, The Take Prohibition in Section 9 of the Endangered Species Act: Contradictions, Ugly Ducklings, and Conservation of Species, 34 ENVTL. L. 363, 365 (2004) (describing the prohibition as "simple, unambiguous, and breathtaking in its reach and power"). Compare, e.g., Endangered Species Act of 1973 § 9(a)(1)(B), 16 U.S.C. § 1538(a)(1)(B) (2000) (making it unlawful "to take any [endangered] species within the United States"), with Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136 (providing generally for the establishment and preservation of federal wilderness areas), and National Forest Management Act § 6(g)(3)(B), 16 U.S.C. § 1604(g)(3)(B) (requiring land-management regulations to "provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species"), and 16 U.S.C. § 1851(a)(1) (requiring fishery regulations to "prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery").
7. See, e.g., 16 U.S.C. § 529 ("In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas."); Clean Water Act § 404, 33 U.S.C. § 1344 (2000) (providing for the issuance of permits for "the discharge of dredged or fill material into the navigable waters"); see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004) (discussing "multiple use management" as "a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put").
8. See, e.g., MILLENNIUM ECOSYSTEM ASSESSMENT, ECOSYSTEMS AND HUMAN WELL-BEING: BIODIVERSITY SYNTHESIS 2-5 (2005), available at http://www.millenniumassessment.org/documents/document.354.aspx.pdf (describing the rapid conversion of ecosystems - including increasing rates of extinction, declining genetic diversity, and more homogeneous distribution of species - and predicting similar changes in the future); MILLENNIUM ECOSYSTEM ASSESSMENT, ECOSYSTEMS AND HUMAN WELL-BEING: WETLANDS AND WATER SYNTHESIS 2-10 (2005), available at http://www. millenniumassessment.org/documents/document.358.aspx.pdf (describing the causes of wetland loss and degradation and its effect on population growth, economies, and consumption patterns); NAT'L OCEANIC & ATMOSPHERIC ADMIN., NOAA'S NATIONAL MARINE FISHERIES SERVICE REPORT ON THE STATUS OF THE U.S. FISHERIES FOR 2006, at 5 (2006), available at http://www.nmfs.noaa.gov/sfa/domes_fish/StatusoFisheries/2006/2006RTCFinal_ Report.pdf (reporting on the increasing number of overfished stocks); WELFARE RANCHING: THE SUBSIDIZED DESTRUCTION OF THE AMERICAN WEST 162-257 (George Wuerthner & Mollie Matteson eds., 2002) (detailing the degradation of various natural resources and life forms); Energy Info. Admin., U.S. Dep't of Energy, Energy in the United States: 1635-2000 (2007), http://www.eia.doe.gov/ emeu/aer/eh/frame.html (describing the historical use and environmental impact of natural resources such as coal and petroleum). See generally ALYSON C. FLOURNOY ET AL., SQUANDERING PUBLIC RESOURCES (2007) (examining government policies that result in the degradation of natural resources).
9. It can be argued that the failure to achieve sustainable use is not a shortcoming, but the intended and desired outcome achieved by laws that incorporate a combination of weak mandates and unattainable ones. See John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 233-35 (1990) (arguing that legislators reap the "benefits of 'voting for health and the environment'" by passing environmental statutes that ignore obstacles to implementation and set unattainable standards). However, given the complexity of the stated goals, the opaque decision-making processes, and the limited information on resource use and the impacts of individual decisions, it seems at least possible that neither lawmakers nor the public are fully aware of the effects of the design of current law. Thus, it may be fairer to attribute the incoherence in our statutes to a failure to seriously engage the question of what legacy we wish to leave, how to preserve this legacy, the costs involved, and the importance of doing so. Until we seriously debate the question of the resource legacy we wish to leave to future generations and how to balance the needs of the present and future generations, we are unlikely to leave any consciously chosen legacy.
10. 42 U.S.C. §§ 4321-4347 (2000). NEPA requires federal agencies to collect and evaluate information on environmental impacts and alternative actions before they undertake, fund, or permit any major action that would significantly affect the environment. Id. § 4332.
11. See, e.g., LYNTON KEITH CALDWELL, THE NATIONAL ENVIRONMENTAL POLICY ACT: AN AGENDA FOR THE FUTURE, at xvi-xvii, 2-9, 33-38 (1998) (noting that one of NEPA's goals was to set a national environmental policy that would both (1) instruct agencies how to balance competing interests and (2) encourage agencies to articulate values without legislating them); Matthew J. Lindstrom, Procedures Without Purpose: The Withering Away of the National Environmental Policy Act's Substantive Law, 20 J. LAND RESOURCES & ENVTL. L. 245, 245-46 (2000) ("[NEPA] provides a substantive environmental policy vision and institutional infrastructure in addition to procedural mechanisms designed to enhance the salience of environmental values in federal agency decision-making."); Paul S. Weiland, Amending the National Environmental Policy Act: Federal Environmental Protection in the Twenty-First Century, 12 J. LAND USE & ENVTL. L. 275, 281-82 (1997) (stating that NEPA was designed to establish the nation's priorities in environmental policy and to ensure those policies and goals are carried out by the federal government); Nicholas Yost, NEPA's Promise - Partially Fulfilled, 20 ENVTL. L. 533, 533-34 (1990) (quoting one NEPA author as saying that NEPA "gives expression to our national goals and aspirations" and "provides a statutory foundation to which administrators may refer").
12. Early in the implementation of NEPA, the Supreme Court ruled that NEPA lacks a substantive standard of environmental protection. That is, it requires agencies to collect and consider information, but it does not require that they choose an environmentally preferable action or achieve any defined level of resource protection. See infra notes 19-21 and accompanying text.
13. See Lindstrom, supra note 11, at 264-66 (discussing proposed reforms to fix NEPA's inadequate substantive standard, including "amending NEPA to create a more explicit link between its substantive policies and procedural mechanism"); Weiland, supra note 11, at 290-93 (advocating an amendment to NEPA that clarifies environmental protection as a substantive goal in federal decision making). But see Lynton K. Caldwell, NEPA Revisited: A Call for a Constitutional Amendment, ENVTL. F., Nov.-Dec. 1989, at 18, 22 (calling for a constitutional amendment rather than legislative reform of NEPA).
14. 42 U.S.C. § 4331(a).
15. Id.
16. Id.
17. Id. § 4331(b).
18. Id. § 4331(b)(3).
19. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980).
20. See id. at 227-28 (holding that NEPA does not require agencies to select environmentally preferable outcomes; it requires only that they comply with the statute's procedural requirements).
21. See, e.g., Michael C. Blumm, The National Environmental Policy Act at Twenty: A Preface, 20 ENVTL. L. 447, 450 (1990) ("The coup de grace came when the Supreme Court held NEPA to be essentially procedural, ignoring the high-minded aspirations contained in section 101 and apparently considering NEPA to require just the paperwork and public disclosure specified in section 102."); Lindstrom, supra note 11, at 258-62 ("[I]n Strycker's Bay Neighborhood Council, Inc. v. Karlen, the Supreme Court effectively squashed any possibility of judicial enforcement of NEPA's substantial goals."). Oliver Houck has described the shortcoming as the lack of precision in articulating the policy. Oliver A. Houck, Is that All? A Review of The National Environmental Policy Act, An Agenda for the Future, by Lynton Keith Caldwell, 11 DUKE ENVTL. L. & POL'Y F. 173, 178-80 (2000).
22. See Lynton K. Caldwell, Beyond NEPA: Future Significance of the National Environmental Policy Act, 22 HARV. ENVTL. L. REV. 203, 206, 221-22 (1998) (detailing at least four explanations of NEPA's inadequacy in practice); Yost, supra note 11, at 539-41 (placing blame on the Supreme Court's "consistently crabbed interpretations" of NEPA).
23. 42 U.S.C. § 4332(2)(A), (B), (E).
24. Id. § 4332(2)(C). These duties are further elaborated in the Council on Environmental Quality (CEQ) regulations. 40 C.F.R. §§ 1500-1508.28 (2008).
25. COUNCIL ON ENVTL. QUALITY, THE NATIONAL ENVIRONMENTAL POLICY ACT: A STUDY OF ITS EFFECTIVENESS AFTER TWENTY- FIVE YEARS, at iii (1997) [hereinafter NEPA AT TWENTY-FIVE], available at http://ceq.eh.doe.gov/nepa/ nepa25fn.pdf (suggesting that NEPA has been a success because it forces agencies to consider environmental consequences of their actions and involves the public in the agency decision-making process); Stark Ackerman, Observations on the Transformation of the Forest Service: The Effects of the National Environmental Policy Act on U.S. Forest Service Decision Making, 20 ENVTL. L. 703, 703 (1990) (stating that NEPA "accelerated and stimulated" positive changes in the Forest Service); Dinah Bear, Some Modest Suggestions for Improving Implementation of the National Environmental Policy Act, 43 NAT. RESOURCES J. 931, 931 (2003); Caldwell, supra note 22, at 205, 207 (acknowledging that NEPA's procedural reform has "improved the quality of public planning and decisionmaking"); James L. Connaughton, Chairman, President's Council on Envtl. Quality, Modernizing the National Environmental Policy Act: Back to the Future (Apr. 10, 2003), in 12 N.Y.U. ENVTL. L.J. 1, 5 (2003) (asserting that while a small aspect of NEPA has "drawn heat," NEPA has worked well); Paul J. Culhane, NEPA's Effect on Agency Decision Making: NEPA's Impacts on Federal Agencies, Anticipated and Unanticipated, 20 ENVTL. L. 681, 681-93 (1990) (stating that NEPA resulted in the consideration of environmental impacts in administrative decisions, the diversification of agency staffs, and public participation); Houck, supra note 21, at 188-91 (remarking that despite its problems, NEPA has still pressured federal decision making, provided more environmental alternatives, and brought the public into the process); Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 906 (2002) ("NEPA transformed the institutional landscape in its revolutionary youth, bringing important and lasting changes to the way government does business."); Mary H. O'Brien, NEPA as It Was Meant to Be: NCAP v. Block, Herbicides, and Region 6 Forest Service, 20 ENVTL. L. 735, 736 (1990) (contending that NEPA spurred positive changes for the Forest Service's vegetation management).
26. Culhane, supra note 25, at 695-96, 702. Culhane notes, "NEPA does not explicitly provide EIS writers with standards for weighing environmental costs against asserted project benefits, much less with a technical preference function." Id. at 695. Thus, agencies seek to compile information appropriate to a rationalist decision, but the information is used for a different and less decisive purpose. See id. at 693-95 ("The NEPA process has adopted the form, not the substance, of the rational-comprehensive-optimizing model of decision making."). Culhane applies garbage-can decision theory to describe the highly politicized decision-making context in which NEPA compliance occurs. Id. at 682-89, 695-96. This may explain why the CEQ observed in its report NEPA AT TWENTY-FIVE, supra note 25, at 28, that environmental impact statements (EISs) often have more data than needed, but not enough analysis of the data focused on "the decision" and expressed in clear, concise language. The CEQ then states that "NEPA is about making choices not endlessly collecting raw data." Id. One might say that Culhane's point is that because NEPA lacks any substantive focus or goal for the agency, NEPA is about endlessly collecting raw data - it does not provide any guidance on how to make decisions.
27. The foundation of the EIS requirement is the statute's mandate that agencies prepare a detailed statement. See 42 U.S.C. § 4332(2)(C) (detailing the required information to be included in a report or recommendation). CEQ regulations have elaborated to mandate preparation of various documents depending on the nature of the impacts of the proposed action or the phase of the agency's decision-making process. These include EAs, findings of no significant impact (FONSIs), supplemental EISs, programmatic EISs, and records of decision. See 40 C.F.R. §§ 1501.4, 1502.2, 1502.20, 1508.28 (providing instructions for the preparation of EAs, FONSIs, and EISs).
28. Culhane, supra note 25, at 700; see also NEPA AT TWENTY-FIVE, supra note 25, at iii (remarking that some agencies may "act as if the detailed statement called for in the statute is an end in itself, rather than a tool to enhance and improve decision-making").
29. See, e.g., Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1065-68 (9th Cir. 2005) (holding that a U.S. Forest Service EIS for salvage harvesting of old-growth forest habitat violated NEPA because it failed to adequately explain the basis for the Service's conclusion that eliminating a portion of habitat would not adversely affect the viability of Black-backed Woodpeckers in the area); Washington County, N.C. v. U.S. Dep't of Navy, 357 F. Supp. 2d 861, 861 (E.D. N.C. 2005) (finding that a final environmental impact statement (FEIS) prepared by the Department of Navy failed to adequately consider scientific literature in analyzing the impacts on lakes and waterfowl, as required under NEPA); Sierra Club v. Bosworth, 199 F. Supp. 2d 971, 971 (N.D. Cal. 2002) (granting summary judgment where an EIS prepared by the U.S. Forest Service did not adequately disclose and analyze the environmental impacts of post-fire logging and fuel-break maintenance).
30. See NEPA AT TWENTY-FIVE, supra note 25, at iii (observing that a result of NEPA is "endless documentation"); Culhane, supra note 25, at 693-94 (giving an example of the massive documentation produced due to the requirements, yet reporting that the quality of these documents is deficient); Karkkainen, supra note 25, at 917-19 (stressing that agencies produce overly detailed records to "bullet-proof their decisions even though the NEPA requirements do not necessarily result in improving the quality of these records).
31. See 40 C.F.R. § 1501.2 (2000) ("Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure [sic] that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts."); NEPA AT TWENTY-FIVE, supra note 25, at 11 (positing that the earlier agencies incorporate NEPA's framework into their planning process, the more successful the outcome of the agencies' proposals); Bear, supra note 25, at 941 (suggesting that "much of the time, information matters a lot" in the decision-making process); Karkkainen, supra note 25, at 924-25 (proposing that starting the NEPA analyses earlier is more beneficial to the decision-making process).
32. See Culhane, supra note 25, at 694 (discussing multiple studies that show widespread inaccuracies in EISs); Karkkainen, supra note 25, at 921-23 (suggesting that the quantity of information contained in NEPA documents dilutes its quality).
33. E.g., Bear, supra note 25, at 944-45 (listing the consequences of the one-time use of the EISs); Karkkainen, supra note 25, at 925-32 (explaining the problems associated with NEPA's one-time predictive approach); see also NEPA AT TWENTY-FIVE, supra note 25, at 31-34 (pointing out the benefits of continuous adaptive management based on initial NEPA reports); Connaughton, supra note 25, at 9-10 (proposing a requirement of adaptive management and continual monitoring).
34. See Karkkainen, supra note 25, at 923 (observing that the project-specific nature of NEPA reports prevents the use of these reports in other contexts).
35. Id. at 907-08.
36. See id. at 927 (stating that NEPA does not generally require any "post-project assessment").
37. Id. at 907-08; NEPA AT TWENTY-FIVE, supra note 25, at 31-34; NEPA TASK FORCE, REPORT TO THE COUNCIL ON ENVIRONMENTAL QUALITY: MODERNIZING NEPA IMPLEMENTATION 45 (2003) [hereinafter NEPA TASK FORCE REPORT], available at http://ceq.eh.doe.gov/ntf/report/finalreport.pdf.
38. See 40 C.F.R. § 1501.4(e) (2008) (allowing the agency to prepare a FONSI in lieu of an EIS).
39. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 340 (1989) (citing to an EIS's assertion that numerous mitigation measures discussed in the study would greatly reduce the impacts of the proposed project); Blumm, supra note 21, at 476-77 (relating criticisms of using empty mitigation promises to avoid submitting an EIS, and offering critics' suggestions on how to enforce these promises); Whitney Deacon, The Bush Administration's Attack on the Environment; Target: NEPA's Environmental Impact Statement, 10 MO. ENVTL. L. & POL'Y REV. 147, 151 (2003) (concluding that mitigation efforts can result in ineffective programs that are immune to any accountability). But cf. Karkkainen, supra note 25, at 908, 934-36 (advocating use of mitigated FONSIs with postdecision monitoring and enforcement of mitigation commitments).
40. See NEPA AT TWENTY-FIVE, supra note 25, at 31 (reporting that agencies usually do not gather data on their mitigation efforts); NEPA TASK FORCE REPORT, supra note 37, at 45 (finding that regulations do not require monitoring of the traditional "predict-mitigate-implement" model); Blumm, supra note 21, at 460 (presenting a critic's proposal on enforcing mitigation measures by amending the regulations); Deacon, supra note 39, at 151 ("[B]ecause there is no post-project review of the accuracy of the predictions made in the EIS or the EA, there is no liability for the inaccuracy, which effectively means there is no accountability."); Karkkainen, supra note 25, at 936 (acknowledging that NEPA does not require implementation of mitigation measures).
41. See Dinah Bear, Some Modest Suggestions for Improving Implementation of the National Environmental Policy Act, 43 NAT. RESOURCES J. 931, 941-48 (2003) (proposing implementation of postdecision monitoring).
42. The CEQ's regulations call for the consideration of cumulative impacts of related actions in determining whether an action is significant and an EIS is required. 40 C.F.R. § 1508.27(b)(7).
43. See Terence L. Thatcher, Understanding Interdependence in the Natural Environment: Some Thoughts on Cumulative Impact Assessment Under the National Environmental Policy Act, 20 ENVTL. L. 611, 617-28 (1990) (surveying the confusing standards that courts have developed in trying to interpret the requirement).
44. NEPA AT TWENTY-FIVE, supra note 25.
45. NEPA TASK FORCE REPORT, supra note 37.
46. COUNCIL ON ENVTL. QUALITY, A CITIZEN'S GUIDE TO THE NEPA: HAVING YOUR VOICE HEARD (2007), available at http://ceq.eh.doe.gov/ nepa/Citizens_Guide_Dec07.pdf; COUNCIL ON ENVTL. QUALITY, ALIGNING NATIONAL ENVIRONMENTAL POLICY ACT PROCESSES WITH ENVIRONMENTAL MANAGEMENT SYSTEMS: A GUIDE FOR NEPA AND EMS PRACTITIONERS (2007), available at http://ceq.eh.doe.gov/nepa/ nepapubs/Aligning_NEPA_Processes_with_ Environmental_Management_Systems_2007. pdf; COUNCIL ON ENVTL. QUALITY, COLLABORATION IN NEPA: A HANDBOOK FOR NEPA PRACTITIONERS (2007), available at http://www.nepa.gov/ntf/Collaboration_in_NEPA_Oct_2007.pdf.
47. See TASK FORCE ON IMPROVING THE NAT'L ENVTL. POLICY ACT AND TASK FORCE ON UPDATING THE NAT'L ENVTL. POLICY ACT, COMM. ON RES., U.S. HOUSE OF REPRESENTATIVES, INITIAL FINDINGS AND DRAFT RECOMMENDATIONS 25-29 (2005), available at http://republicans.resourcescommittee.house.gov/archives/ii00/nepataskforce/ report/nepareport_fina ldraft.pdf (proposing NEPA amendments to, among other things, clarify certain statutory terms, and enhance participation and coordination among the public and governmental bodies and between agencies).
48. This Article proposes a federal statute, but the concept and design of the Legacy Act could easily be adapted for adoption as a state statute as well. As with NEPA, state analogues could serve distinct purposes. A state Legacy Act would presumably focus on protecting a legacy of state-owned and public-trust natural resources rather than federal resources.
49. For purposes of discussion, we propose a very broad definition of public natural resources that includes all water and land, as well as the ecosystems, biodiversity, and minerals found on or in them that are under federal ownership or are protected by the federal public-trust doctrine.
50. Designing the statute will require both considerable technical work and further elaboration of value choices. Although we have included section numbers for ease of reference, the sketch that follows is a starting point for discussion, not a detailed statutory proposal.
51. At the conclusion of each legacy period, a new legacy period would commence.
52. The term should be very broadly defined to include all public and private actors, including the designated stewardship agency. See, e.g., Endangered Species Act of 1973 § 3, 16 U.S.C. § 1532(13) (2000) (defining the term "person" expansively to include both public and private entities, as well as "any other entity subject to the jurisdiction of the United States").
53. For purposes of discussion, we propose that this standard proscribe all actions that will lead to significant degradation or depletion of covered resources over the legacy period, unless the proponent of action can demonstrate that substitute resources are likely to be available. NELA represents a break with most current law by shifting the burden to show the availability of substitute resources to the proponent of action.
54. Where an agency has stewardship responsibilities for a particular resource under existing law, it would seem most efficient to designate that agency for this role, unless past experience suggests this would be inconsistent with achieving the purposes of the Act.
55. For those agencies that already undertake planning regarding the relevant resource, this duty should be coordinated with the agencies' planning duties under existing enabling acts to achieve maximum efficiency in implementation. The statute should make clear that the general prohibition on actions that impermissibly degrade or deplete legacy resources applies both to private actors and to stewardship-agency decisions affecting the relevant resource - including management, permitting, leasing, and all other decisions.
56. Fee-shifting permits a judge to award costs of litigation to a prevailing party in a suit - such as a citizen suit under the Clean Air or Clean Water Acts. See, e.g., Clean Air Act § 304, 42 U.S.C. § 7604(d) (2000) (providing that a judge "may award costs of litigation" to a prevailing party in a Clean Air Act citizen's suit).
57. The standard governing exceptions could apply to two different contexts under the statute. First, it could apply in the context of an agency developing its rules under § 6 of the statute. In this context, if the agency could demonstrate by clear and convincing evidence that either prong of the exception is met with respect to a particular resource or value, the statutory mandate for preserving the resource would not apply to the extent the evidence warrants, and rules that deviated from the statutory mandate could be upheld as valid to the extent an exception was warrranted. The second context would be as a defense to an enforcement action. A party subject to enforcement for impermissible degradation or depletion could defend against enforcement if the party could demonstrate by clear and convincing evidence that either prong of the exception is met regarding the action giving rise to the enforcement.
58. See supra note 26 and accompanying text.
59. See supra note 28 and accompanying text.
60. See, e.g., Blumm, supra note 21, at 459 (reporting on a study of cases where promised mitigations, which were used to conclude that EISs were unnecessary, were later ignored); Deacon, supra note 39, at 153-54 (noting various agencies' broad use of categorical exemptions); Sarah McQuillen Tran, Rebuilding Our Power Without Procedural Safeguards: A Federal Response to the 2005 Hurricanes That Outlasted the "Emergency", 32 HARV. ENVTL. L. REV. 217, 244-50 (2008) (criticizing FERC's broad use of categorical exemptions under NEPA following Hurricane Katrina).
61. Moreover, information on the quantity of certain resources may already be compiled and may be relatively well defined and simple to assemble. For example, we may have reasonably accurate estimates of the acres of forest or grasslands or the amount of certain mineral resources located on public lands. Nonetheless, even the metrics selected for the quantity of resources may require more than just crude cumulative numbers. For example, distribution of the resource may also be important to consider in some cases. In setting the metrics to be used in assessing resource quantity for forests, it would be reasonable to consider not just the existence of acres of public forests, but their distribution across the landscape and the diversity in forest types. This could be considered as an aspect of quantity or viewed as a qualitative value.
62. Professors Shapiro and Steinzor propose positive metrics in a different context - to promote agency accountability. See generally Sidney A. Shapiro & Rena Steinzor, Capture, Accountability, and Regulatory Metrics, 86 TEXAS L. REV. 1741 (2008) (criticizing current efforts at agency accountability and proposing positive metrics as an alternative). It would make sense to develop metrics for use in multiple contexts. A single metric might be used to monitor both agency accountability and compliance with the Legacy Act.
63. Id. at 1770-71.
64. Professors Shapiro and Steinzor emphasize the importance of independence in the context of developing metrics for agency accountability as well. Id. at 1775-77. One possibility would be to provide in the statute for the creation of an interdisciplinary committee of experts to help develop the metrics, following the model of the Committee of Scientists that was created to develop regulations under the National Forest Management Act. A broader undertaking would model the Intergovernmental Panel on Climate Change or the Millennium Ecosystem Assessment. This would bring together scientists to assess the state of knowledge, determine whether consensus exists on the state of our information and analytic methods, and assess accordingly the impacts of decisions on resources.
65. Id. at 1775-77.
66. Karkkainen, supra note 25, at 920.
67. See supra note 64 and accompanying text.
68. See Douglas A. Kysar, Law, Environment, and Vision, 97 NW. U. L. REV. 675, 676 (2003) [hereinafter Kysar, Law, Environment] ("[B]ecause mainstream economic accounts generally fail to recognize absolute limits imposed by nature... , they also fail to provide an adequate conceptual basis on which to make [required] political judgments...."); Douglas A. Kysar, Sustainability, Distribution, and the Macroeconomic Analysis of Law, 43 B.C. L. REV. 1, 17-21 (2001) [hereinafter Kysar, Sustainability] (surveying examples of the limits on natural resources and waste that render the macroeconomic conception of market activity erroneous).
69. Kysar, Sustainability, supra note 68, at 6-7.
70. Id. at 8.
71. See NATURE'S SERVICES: SOCIETAL DEPENDENCE ON NATURAL ECOSYSTEMS (Gretchen C. Daily ed., 1997).
72. SEE GEOFFREY HEAL, NATURE AND THE MARKETPLACE: CAPTURING THE VALUE OF ECOSYSTEM SERVICES (2000).
73. See Robert Costanza et al., The Value of the World's Ecosystem Services and Natural Capital, 387 NATURE 253 (1997).
74. E.g., J.B. RUHL, STEVEN E. KRAFT & CHRISTOPHER L. LANT, THE LAW AND POLICY OF ECOSYSTEM SERVICES (2007); J.B. Ruhl & James Salzman, Ecosystem Services and the Public Trust Doctrine: Working Change from Within, 15 SOUTHEASTERN ENVTL. L.J. 223 (2006); J.B. Ruhl & R. Juge Gregg, Integrating Ecosystem Services into Environmental Law: A Case Study of Wetlands Mitigation Banking, 20 STAN. ENVTL. L.J. 365 (2001); J.B. Ruhl & James Salzman, The Law and Policy Beginnings of Ecosystem Services, 22 J. LAND USE & ENVTL. L. 157 (2007); James Salzman, Creating Markets for Ecosystem Services: Notes from the Field, 80 N.Y.U. L. REV. 870 (2005); James Salzman, A Field of Green? The Past and Future of Ecosystem Services, 21 J. LAND USE & ENVTL. L. 133 (2006); James Salzman et al., Protecting Ecosystem Services: Science, Economics, and Law, 20 STAN. ENVTL. L.J. 309 (2001).
75. RUHL, KRAFT & LANT, supra note 74, at 9, 13-35.
76. Id. at 31.
77. Id. at 23-33.
78. Id. at 39-56.
79. Id. at 249-92.
80. See Mary Jane Angelo & Mark T. Brown, Integrating Emergy Synthesis into Environmental Law, 37 ENVTL. L. 963, 971-74 (2007) (providing an overview of emergy synthesis).
81. See id. at 964-66 (discussing the origin of the concept of emergy and the aim of the article to demonstrate emergy's "potential to revolutionize environmental law").
82. Danielle Marie Devincenzo-King, Emergy Accounting of the Resource Basis of Nations, Human Well-Being and International Debt 5 (2006) (unpublished master's thesis, University of Florida) (on file with the Texas Law Review). See also Redefining Progress, Earth Day Footprint Quiz, http://www.myfootprint.org. For example, the ecological footprint of one of the authors of this Article is 14 acres, compared to the average footprint of 24 acres per person in the United States. There are 4.5 biologically productive acres per person worldwide. Thus, if everyone lived like the author - with a footprint of 14 acres each - we would need 3.1 Earths to support our current world population.
83. These indices include: the Yale Environmental Sustainability Index (YESI), see DANIEL C. ESTY ET AL., 2005 ENVIRONMENTAL SUSTAINABILITY INDEX: BENCHMARKING NATIONAL ENVIRONMENTAL STEWARDSHIP 1 (2005) ("The Environmental Sustainability Index (ESI) benchmarks the ability of nations to protect the environment over the next several decades."), available at http://www.yale.edu/esi/ESI2005. pdf; the United Nations Development Programme Human Development Index (HDI), see Human Development Index (HDI) - Human Development Reports (UNDP), http://hdr.undp.org/en/statistics/indices/hdi/ (describing the HDI's method of measuring development using the indicators of life expectancy, educational attainment, and income); and the Prescott-Allen Well-Being Index (WI), see ROBERT PRESCOTT-ALLEN, THE WELLBEING OF NATIONS: A COUNTRY-BY-COUNTRY INDEX OF QUALITY OF LIFE AND THE ENVIRONMENT (2001) (creating an index that juxtaposes individuals' well-beings and environmental stress).
84. Because the statute focuses on the resources available at the end of the legacy period, the level of degradation or depletion of renewable resources permitted under the statute would take into account the resources' capacity to renew themselves over the legacy period.
85. See J.B. Ruhl, Sustainable Development: A Five-Dimensional Algorithm for Environmental Law, 18 STAN. ENVTL. L.J. 31, 56-58 (discussing application of "models of complex adaptive systems" to "fundamental aspects of sustainable development").
86. Id. at 61-62.
87. Id. at 59-61.
88. Karkkainen, supra note 25, at 938-39.
89. Holly Doremus, Precaution, Science and Learning While Doing in Natural Resource Management, 82 WASH. L. REV. 547, 550 (2007) (advocating a precautionary approach that incorporates adaptive learning); Karkkainen, supra note 25, at 938-40 (arguing that allowing adaptive-management techniques would streamline the NEPA process).
90. See Karkkainen, supra note 25, at 938 (discussing the benefits of process transparency to agencies, the public, and governmental branches).
91. See Wendy E. Wagner, Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment, 53 DUKE L.J. 1619, 1625-33 (2004) (describing the "ignorance equilibrium" and attributing blame to industry's rational aversion to disclosure of information).
92. In the case of public resources, private actions approved by agencies under traditional permitting or leasing arrangements are frequently the source of degradation or depletion. In this situation, the private actor typically has greater access to information about the details of the activity it has proposed and the likely adverse impacts, creating an information asymmetry. In a typical permitting or leasing procedure, even if there is a regulatory standard that prohibits or takes negative account of anticipated degradation, the proponent has no incentive to share information on adverse effects. Even if the actor proposing a degrading or depleting activity is an agency, the agency itself may have an incentive to withhold information, creating information asymmetry between the agency and the interested public.
93. Bradley C. Karkkainen, Bottlenecks and Baselines: Tackling Information Deficits in Environmental Regulation, 86 TEXAS L. REV. 1409, 1419 (2008).
94. A statute that completely prohibited depletion or degradation would be the strongest form of a penalty default. Although we propose a default that permits some degradation, we follow the model that has been successfully employed under the Endangered Species Act (ESA), which prohibits conduct generally rather than establishing a permit process in the first instance. See 16 U.S.C. § 1538 (2000) (making it unlawful to possess, transport, or sell designated species). Our proposal envisions exceptions under § 10 of the Legacy Act, like § 10 of the ESA. See id. § 1539.
95. See John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 333 (1991) (concluding that the uncertainty of toxic chemicals' effects makes it "nearly impossible to establish a level of regulatory control with any confidence in its accuracy"); Doremus, supra note 89, at 579 ("Dealing with uncertainty is the signature challenge of environmental and natural resource decisionmaking."); Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 ENVTL. L. 397 (2004) ("Uncertainty is endemic in the ESA context. It can plague our understanding of... the effect of management actions on species."); Daniel C. Esty, Environmental Protection in the Information Age, 79 N.Y.U. L. REV. 115, 117-18 (2004) (blaming recent failures in environmental regulation on information gaps); Howard A. Latin, The "Significance " of Toxic Health Risks: An Essay on Legal Decisionmaking Under Uncertainty, 10 ECOLOGY L.Q. 339, 340-42 (1982) (criticizing the Supreme Court's response to uncertainty surrounding toxic-substance regulation); Frederic H. Wagner, Whatever Happened to the National Biological Survey?, 49 BIOSCIENCE 219, 219 (1999) (arguing that a national biological survey containing information on the habitats of endangered species would prevent disputes regarding use of the habitat); Wagner, supra note 91, at 1623-24 (arguing that despite the growth of environmental law and regulation since the 1970s, the quality of most of the air, water, and land in the United States, as well as the "breaking point" of many ecosystems, remains unknown).
96. See Applegate, supra note 95, at 319 (stating that because of the strict standards necessary to impose a test rule under the Toxic Substances Control Act, very few test rules have been promulgated under the statute); Latin, supra note 95, at 381-82 (showing that placing the burden of proof of harmful effects on an agency attempting to regulate can frustrate the purposes of environmental legislation).
97. See generally John S. Applegate, The Taming of the Precautionary Principle, 27 WM. & MARY ENVTL. L. & POL'Y REV. 13 (2002) (defining the precautionary principle as one that embodies the ideas that "anthropogenic harm to human health and the environment should be avoided or minimized through anticipatory, preventive regulatory controls; and, to accomplish this, activities and technologies whose environmental consequences are uncertain but potentially serious should be restricted until the uncertainty is largely resolved").
98. The term "person" should be broadly defined. See supra note 52 and accompanying text.
99. See Doremus, supra note 89, at 548-50 (arguing that both the precautionary principle and scientific principles - sometimes thought to be in conflict with each other - should be used in an environmental decision-making process that emphasizes learning).
100. For example, any individual action that itself would be deemed significant under NEPA could be prohibited, pending the collection of the relevant information and the development of agency metrics. Defining the precise class of activities to be proscribed in this transition period would entail significant value choices.
101. See Wagner, supra note 91, at 1741-42 (describing private parties' incentives to share information and to support prompt regulation under an approach similar to "penalty defaults").
102. See Karkkainen, supra note 93, at 1432-34 (describing how the inversion of the usual incentives for potentially regulated business leads to the disclosure of information).