The Public Interest Environmental Law Conference: Friday Morning

The great and terrible thing about a conference as large and well known as PIELC is the fact that there are usually ten panels going on at the same time, and they are all on issues that we would go out of our way to hear about any day.  It makes breakfast difficult, for it is always hard to make such decisions, and even more so before coffee.  Ultimately, we all chose different panels, so that we could share information with one another, and get a more well-rounded experience.

Wolves, Cougars, and Hunting: Can Fish & Game Agencies Manage Predators?
Attending this panel was the first decision Kate made Friday.  She found it very interesting. She learned quite a bit about the history of predators in our country, the ecological effects of disruptions in the food chain, and what legislation is doing now to remedy the situation.  
Wolves and grizzlies were eliminated from the US at one point, and deer irruptions followed. An increase in deer and elk populations lead to many adverse environmental impacts (ones I never would have thought of before). Having large predators near deer and elk populations changes their behavior, including where they graze: if they feel threatened by the presence of predators they are likely to spend less time around open stream areas where they are vulnerable.
The greater ecological effects of this are illustrated in the Yellowstone experiment. After wolves were reintroduced to Yellowstone many things were rejuvenated.  Cottonwood, willow, and aspen trees improved (and now you can see the gap in growth), song birds increased, beavers returned, bison increased, coyotes reduced, prong horn antelope increased. There was a similar result witnessed in the area of Canada that wiped out wolves for a period due to a rabies scare. This is referred to as trophic cascades in terrestrial ecosystems; you can learn more about it here: http://www.cof.orst.edu/cascades/

When it comes to the legal issues around wolves and other predators, wolves are regulated under the Endangered Species Act to “minimum viable population.” This is ineffective because at a minimum level you are not going to see the positive ecological effects on the ecosystem. It is also ineffective to regulate their population through hunting, because hunting does not have the same behavioral altering effect. You also can’t manage wolves simply by numbers due to their social hierarchy. When they are managed in a socially stable way, you see a reduction in the problems associated with wolves, such as attacks on livestock.  These problems with population management are the issues surrounding the litigation currently going on regarding wolves. If this subject interests you, Kate encourages you to go read the case law and to pay attention to proposed state and federal legislation.

Extending US Environmental Laws to US Actions Abroad
At the same time, Jess attended a panel on the extraterritorial application of our nation’s environmental laws.  Generally, there is a presumption against extraterritoriality of US law application, as per the Restatement (Second) of Foreign Relations.  The three exceptions to this rule are 1) where Congress clearly expresses affirmative intent for laws to apply abroad; 2) if the activity  undertaken abroad will result in adverse impacts within the United States; and 3) when the conduct regulated actually occurs in the US (i.e. decisionmaking proceses).  Obstacles to extraterritorial application include the Foreign Affairs Doctrine and the Act of State Doctrine, which both encourage non-interference, as well as traditional standing, causation, and redressability issues.  Although it seems that these exceptions are narrow, environmental laws have been applied abroad successfully in a handful of cases.  

First, category 1 applies to actions within our EEZ and  up to 3-12 miles from foreign waters which implicate the Marine Mammal Protection Act or the Migratory Bird Treaty Act, and may also apply in Endangered Species Act issues (interestingly, that is what was at issue in the Lujan case, which is well known for its standing analysis–the Court never reached the merits of this case, so its status is still unknown.  Congress has also specifically indicated that the National Historic Preservation Act applies to US actions overseas.  The Okinawa Dugong v. Rumsfeld (2003) case is one such example, which resulted in the halting of construction of a military base in Hanoko Bay, Japan which would have severely damaged the dugong population.  Under the NHPA, the US is required to take into account, and mitigate, adverse effects on international properties that meet the equivalent of the National Register in the target country.  In Japan, the dugong is considered sacred, and its biological and cultural significance result in it being afforded a great deal of national protection.  Although in most cases, the NHPA protects inanimate objects or cultural properties, the US is required to look at the affected nation’s equivalent laws before taking action; here, it applies to protect Okinawa’s dugong.

Next, category 2 actions include those which cause environmental effects directly in the US, either through transboundary effects or by directly touching multiple nations.  Finally, in category 3, NEPA has been determined to govern most US actions abroad, as it is a decisionmaking statute.  The entity proposing to take action that would affect the environment overseas must undertake analysis before doing so.  The process of actually completing an EIS is one which occurs while this entity is still on American soil, and thus, the regulated conduct occurs within the United States.

National Parks the Next Generation
Kate’s next panel of the day discussed the National Park system. It included a brief comparison of National Parks versus National Forests (which are administered by the Forest Service and Bureau of Land Management), pointing out the Nat’l Parks cost less, there’s no timber or mining allowed, and the Park Service has a better history of management. They also discussed the difference between wilderness versus parks, and area many environmentalists may differ on. The panelists tended to favor parks due to their broader political appeal, and the fact that though recreation is allowed in some places, there are still large parts that go untouched.
There was also a panelist who discussed the many places they feel are deserving of National Park designation. These could be added potentially as completely new areas, or transferred from other services, such as the forest service, or just expand already existing National Parks. Areas suggested include Mount St. Helens, Arctic National Wildlife Refuge, Giant Sequoia, Ancient Forest, White Mountain, Maine Woods, and High Allegheny. There will soon be a website up and running dedicated to this cause at www.newnationalparks.org if this subject interests you.

Stopping Sprawl and Saving the Planet
Next, Jess went to hear local (Oregon and Washington) officials discuss their experience with containing urban development in designated areas, thus reducing sprawl.  Sprawl has consequences for the planet that are distinct from urbanization generally, such as destruction of  habitat and species, air pollution, and water and materials consumption.  This is an international phenomenon, affecting both developed and developing nations.  Land use concerns are important for the protection of both humans and wildlife; more concentrated land use patterns in city development will increase human safety both by reducing the physical hazards of long-distance driving and by reducing greenhouse gas emissions generation.  

It seems like the communities of Seattle and Portland have had success in creating compact communities, and lessening sprawl–well-defined boundaries of development can now be seen on census maps.  The speakers advocated for mixed-use zones and economic integration, and left us with a list of key elements of sprawl reduction and success, including:
– drawing a line defining limits to urban development
– promoting redevelopment,infill, and growth inside the line
– reducing dependence on cars
– conserving land outside the line by zoning regulations
– political leadership in adoption
– clear, simple concepts, goals and regulations
– long-term commitments to implementation
– continuous adjustments to improve

Thanks for listening!

Jess & Kate

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