11th Annual Kerlin Lecture Summary: “What is the Emperor Wearing? The Secret Lives of Ecosystem Services”

On October 18, 2010, the 11th Annual Gilbert and Sarah Kerlin Lecture on Environmental Law took place at Pace University Law School.  This year’s lecture, titled “What is the Emperor Wearing? The Secret Lives of Ecosystem Services,” was presented by James Salzman, the Samuel F. Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy at Duke University School of Law.

Seeking to explore the policies in how humans and nature are mutually interdependent and how they must act together in symbiosis, the lecture centered on the concept of why ecosystem services have enjoyed such rapid adoption in the policy world, whether the enthusiasm is justified, and where the field is going in the coming future.  Professor Salzman began the lecture by illustrating the importance and scope of ecosystem services in the modern day.  The story of how New York City has come to acquire water from the Delaware River and the Catskills region is the “great story of ecosystem services.”  New York City needed purified, drinkable water, which could be done by building capital and investments in the development of treatment facilities and the extraction of water from these out-of-city tracts.  By investing in this built, or “natural” capital, the result is a reworking of the landscape, which in the end resulted in the needed water use for New York City.

From Plato to George Perkins Marsh, who stated that “the most minute organisms provide the most important functions,” the notion of ecosystem services as an important function of everyday life has been around for a long time and is not a new thing.  Especially today, ecosystem services have made a difference in how local land users conduct their daily business. Payments for ecosystem services can have a tremendous effect on redefining the landscape, particularly on such issues like forest system viability, riparian fencing, and harvest practice reform.  The “policy toolkit” available includes the use of legal prescription, penalties, property, persuasion, and payment for services rendered to local landowners.  The United States, Costa Rica, Brazil, Australia, and China are only a few of the countries actively taking steps to improve their ecosystem management regimes.

Nevertheless, there are both policy and legal concerns and implications attached with ecosystem services. On the policy front, the question arises whether ecosystem services violate the “polluter pays” principle, i.e. should we be paying or penalizing the polluter for their conduct?  Also, what are the implications for the transformation of the physical landscape, and how will that affect other land use principles since farms will look differently based on different employed management practices? Finally, if these types of services have always traditionally been free, how do we change the way we think about the land use process and public lands management?

Additionally, Professor Salzman argued that the law does not necessarily protect ecosystem services in the market, despite how important these functions are.  There are several reasons for this lack of legal protection: (1) ignorance (because we have always gotten clear water before, we take it for granted and the biophysical provisions of ecosystem management are poorly understood); (2) market failure (because markets don’t recognize what ecosystem services do, there is little reason to invest in it); and (3) institutional failure (political jurisdictions rarely correlate to ecological jurisdictions).

Still, the explosion of ecosystem services literature and change over the past decade shows hope for the future.  Although nothing has been passed yet, an Environmental Credit Standards Board is being put together in Congress, demonstrating that the Administration is taking steps to consider how we manage our farms and what we can do differently to improve the system.  Placing land management rhetoric in new, but familiar terms is encouraging and provides a powerful framework for the future.  Especially with recent memories of Hurricane Katrina and climate change, the public is beginning to appreciate ecosystem services’ value.  Not only are ecosystem services providing new sources of revenue but it is also an area ripe “ideological cross-dressing,” considering that both environmental and market mechanisms are working in tandem to strengthen property rights while simultaneously conserving the landscape.

Despite some evolving issues and concerns, the future of ecosystem services is bright and exciting.  There are limits and problems, sure, but there is something incredibly useful here and we can all expect to see ecosystem services growing and becoming an ever-important management tool for dealing with environmental protection issues.  Indeed, “the Emperor is looking pretty good!”

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