<h4><em>Under review</em></h4>
<p>U.S. <a href="#" title="Natural resources are “natural assets (raw materials) occurring in nature that can be used for economic production or consumption” according to the Organization for Cooperation and Economic Development. Cornell's LEgal Information Institute defines them as” land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, any State or local government, or any foreign government.” For the purpose of this website, they are naturally occurring items that have economic or ecological importance that have been or may be exploited by humans.">natural resources</a> law is a patchwork of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=880115&quot; title="For a discussion of the distinction between environmental and natural resources law, see Robert Fischman, “What is Natural Resources Law?”">unrelated statutes</a>, unique to each resource, with the exception of the <a href="#National-Environmental-Policy-Act">National Environmental Policy Act</a> (NEPA). Some reflect a pioneer spirit, such as the laws regulating mineral mining, and some are more modern, such as laws regulating ocean fisheries. For the most part, the statutes governing <a href="#Federal-Land-Policy-and-Management-Act">federal lands</a>, <a href="#Timber-and-Forest-Lands">timber</a>, <a href="#Coal">coal</a>, <a href="#Oil-and-Gas">oil and gas</a>, <a href="#minerals">minerals</a>, <a href="#Soil">soil</a>, and <a href="#Ocean-Fisheries">oceans</a> share a common goal of efficiently and sustainably managing natural resources, but with varying degrees of success. This topic would not be complete without also considering <a href="#Natural-Resource-Damages">natural resource damages</a> and <a href="#ecosystem-services">ecosystem services</a>.</p>
<p>For a groundbreaking effort to integrate pollution control and natural resources law, see Cecilia Campbell-Mohn et al., “<a href="http://www.amazon.com/Sustainable-environmental-law-Integrating-polluti… Environmental Law: Integrating Natural Resource and Pollution Abatement Law from Resources to Recovery</a>.”</p>
<p>Natural resources, in general, belong to the state or federal government unless found on private property or rights to them have been obtained from the government. States retain primary authority over natural resources within their borders, although federal statutes also apply to many resources, especially those found on federal land.The government’s role in managing and preserving natural resources for public use dates back to English <a href="http://www.eli.org/keywords/governance#evolution-environmental-law-poli… law</a> and to Roman law before that. Under the <a href="http://www.eli.org/keywords/governance#evolution-environmental-law-poli… trust doctrine</a><a href="#_msocom_7"></a>, some resources, including access to navigable waterways, fishing areas, and coastal areas, cannot be privately owned but must be held for the use and benefit of all. The concept of a protected public interest in natural resources is in tension with U.S. law’s general preference for well-defined property rights.</p>
<h2><a name="National-Environmental-Policy-Act"></a>National Environmental Policy Act</h2>
<p class="style1">Although no single statute applies to all natural resources, the <a href="http://www.epw.senate.gov/nepa69.pdf">National Environmental Policy Act</a> (NEPA) applies to most government actions that might affect natural resource management. NEPA requires the federal government to take a “<a href="http://openjurist.org/458/f2d/827/natural-resources-defense-council-inc…; title="Natural Resources Defense Council v. Morton">hard look</a>” at the potential environmental impacts of proposed federal actions. Under NEPA the government must consider reasonable alternatives to projects that may lessen the environmental impacts. NEPA also provides opportunities for <a href="http://www.eli.org/keywords/governance#local-environmental-law">public comment</a><a href="#_msocom_9"></a> during the NEPA review process. NEPA review is often required before decisions about natural resource use can be made. For example, NEPA review must be completed before a permit for mining on federal land can be issued, before a hiking trail can be built through federal lands, before federal funding in support of energy development projects can be awarded, before grazing permits on federal lands are issued, and before permits for offshore drilling or wind energy sites will be issued.&nbsp;</p>
<p class="style1">For a discussion of the accomplishments and shortfalls of NEPA, listen to and download materials from the ELI seminar “<a href="http://www.eli.org/Seminars/past_event.cfm?eventid=576">The National Environmental Policy Act 40<sup>th</sup> Anniversary Celebration</a>.”</p>
<p class="style1">For a general overview of the National Environmental Policy Act and its many provisions, see Nicholas Yost, “<a href="http://www.eli.org/eli-press-books/nepa-deskbook%2C-4th-edition">NEPA Deskbook, <sup>4th</sup> ed</a>.” For an examination of how NEPA can be used today beyond its mere procedural requirements, see James McElfish, “<a href="http://www.eli.org/research-report/rediscovering-national-environmental… the National Environmental Policy Act: Back to the Future</a>.” For a discussion of the many successes of NEPA, see “<a href="http://www.eli.org/research-report/nepa-success-stories-celebrating-40-… Success Stories: Celebrating 40 Years of Transparency and Open Government</a>.”</p>
<h2><a name="Federal-Land-Policy-and-Management-Act"></a>Federal Land Policy and Management Act</h2>
<p class="style1">The federal government owns nearly <a href="http://nationalatlas.gov/printable/fedlands.html">650 million acres</a> - almost 30 percent - of all U.S. land. As a result, management of federal lands has a significant impact on the overall environment. The <a href="http://www.eli.org/keywords/federal-land-policy-and-management-act-flpm… Land Policy and Management Act</a> (FLPMA) was enacted in 1976 to establish a unified, comprehensive, and systematic approach to managing and preserving public lands in a way that <a href="#" title="§ 102(a)(8).">protects </a>“the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.” <a href="http://www.blm.gov/flpma/&quot; title="For a general review of FLPMA and its history, visit here">FLPMA</a> is administered by the <a href="http://www.blm.gov/wo/st/en.html">Bureau of Land Management</a> (BLM) within the <a href="http://www.doi.gov">Department of Interior</a>.</p>
<p class="style1">Pursuant to FLPMA, BLM must establish a planning process for the management of public lands that accommodates multiple uses of the land and its resources and achieves sustained yield of natural resources. FLMPA aims to protect and preserve public lands in their natural condition to the extent possible, and to retain federal ownership of public lands unless it is in the national interest to dispose of them. Where it is appropriate to sell federal lands, FLPMA <a href="#" title="See generally 43 U.S.C. § 1701, et seq.">requires </a>that fair market value be received for the lands.</p>
<p class="style1">For an interesting discussion of the coming together of public and private land management, see John Davidson, “<a href="http://elr.info/news-analysis/39/10368/new-public-lands-competing-model… New Public Lands: Competing Models for Protecting Public Land Conservation Values on Privately Owned Lands</a>.”</p>
<h2><a name="Timber-and-Forest-Lands"></a>Timber and Forest Lands</h2>
<p>The <a href="http://www.fs.fed.us/">U.S. Forest Service</a>, under authority from the <a href="http://usda.gov/wps/portal/usda/usdahome">Department of Agriculture</a>, manages 193 million acres of &nbsp;forest and grasslands within the National Forest System. The Forest Service’s <a href="http://www.fs.fed.us/aboutus/mission.shtml">mission </a>is to “sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” This mission reflects the balance that the Forest Service must strike between allowing productive economic use and conservation of the lands that they manage. Of the 193 million acres they manage, roughly <a href="#" title="Campbell-Mohn, et al., p. 602.">49 million</a><a href="#_msocom_12"></a> are open to timber extraction.</p>
<p>Under the <a href="http://www.fs.fed.us/emc/nfma/includes/RPA_amended_by_NFMA_USCver.pdf">… Forestry Management Act</a>, all national forests are required to prepare <a href="https://fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5367422.pdf&quot; title="For example, see the Tongass National Forest Land and Management Plan">land and resource management plans</a>, which must be updated every 15 years. These plans essentially zone the forest, determining how the lands are to be managed and whether <a href="#" title="The Forest Service follows three steps of elimination to determine whether a piece of land is potentially available for timber harvest: Step 1. Land that physically cannot sustain harvests is excluded. Step 2. Land that cannot be harvested without irreparable harm is excluded. Step 3. Land that cannot be properly returned to forest after harvest is excluded. 36 C.F.R. § 219.27. These steps are not cut and dry, and many economic, cost-benefit considerations may affect the exclusion determination. 36 C.F.R. § 219.14(b). Once it has been determined that land is suitable for timber extraction, the Forest Service auctions its timber to private loggers, based on a minimum price needed to pay for the replanting of trees on the land. See generally 36 C.F.R. § 223.">timber harvesting</a><a href="#_msocom_15"></a> is appropriate. Plans are required to be prepared with public involvement, and are subject to the terms of the <a href="#National-Environmental-Policy-Act">National Environmental Policy Act</a>. &nbsp;16 U.S.C. § 1604(d).</p>
<p>The <a href="http://www.blm.gov/wo/st/en.html">Bureau of Land Management</a> oversees <a href="#" title="Campbell-Mohn, et al., at p. 610.">270 million acres</a> of public land, 8 million of which are commercial forest land. These lands are governed by FLPMA, with management focused on sustainable yield of timber similar to US Forests.</p>
<p>For a discussion of the evolution of forest management plans, see Martin Nie, “<a href="http://elr.info/news-analysis/41/10229/place-based-national-forest-legi… National Forest Legislation and Agreements: Common Characteristics and Policy Recommendations</a>.” For an interesting discussion of the intersection of NEPA and forest management, see Nathaniel Lawrence, “<a href="http://elr.info/news-analysis/39/10651/forest-objections-effort-drop-ne… Forest of Objections: The Effort to Drop NEPA Review for National Forest Management Act Plans</a>.”</p>
<h2><a name="Coal"></a>Coal</h2>
<p>The U.S. has <a href="Campbell-Mohn,%20et%20al.,%20at%20p.%20996.">35%</a> of the world’s recoverable coal resources, making it the most abundant nonrenewable resource in the nation. Coal extraction is generally allocated through leasing on public lands, overseen by BLM, and by contract and conveyance on private lands. Federal coal is leased under the <a href="http://www.blm.gov/style/medialib/blm/ut/vernal_fo/lands___minerals.Par… Leasing Act</a>, and the Secretary of the Interior has discretion to offer federal coal tracts for lease at competitive auction from “<a href="43%20C.F.R.%20§%203400.4.">time to time</a>.”<a href="#_msocom_20"></a></p>
<p>A permit is required in order to mine, process and load coal under the <a href="http://www.gpo.gov/fdsys/pkg/STATUTE-91/pdf/STATUTE-91-Pg445.pdf">Surfa… Mine Control and Reclamation Act</a><a href="#_msocom_21"></a> (SMCRA) of 1977. SMCRA established the <a href="http://www.osmre.gov/about.shtm">Office of Surface Mining Reclamation and Enforcement</a> (OSMRE) to regulate coal mining activities. SMCRA uses the concept of <a href="http://www.eli.org/keywords/governance/&quot; title="Link to #the-Role-of-the-States-and-Tribes">cooperative federalism</a>, under which<a href="#_msocom_22"></a>&nbsp; states are able to develop their own mining regulations to replace those found in SMCRA as long as SMCRA’s minimum standards are met. Today, most coal producing states have developed their own state laws and regulatory systems to address coal mining and handle the permitting process themselves</p>
<p>For a discussion of cooperative federalism under SMCRA, see Mark Squillace, “<a href="http://elr.info/news-analysis/15/10029/cooperative-federalism-under-sur… Federalism under SMCRA: Is this Any Way to Run a Government?</a>”</p>
<h2><a name="Oil-and-Gas"></a>Oil and Gas</h2>
<p>As with most natural resource areas, states oversee the permitting and environmental impacts of most aspects of petroleum extraction from private lands. Petroleum is typically allocated from public lands to private companies through leasing. Before a lease can be issued, it must be consistent with the respective agency’s land-use plan. Both BLM and the Forest Service prepare <a href="#Timber-and-Forest-Lands">land and resource management plans</a><a href="#_msocom_23"></a> to determine which areas are suitable for extraction. Once a plan determines where petroleum exploration may be allowed, the agency must comply with NEPA’s environmental evaluation process before issuing a lease to explore and develop. The BLM may <a href="#" title="Copper Valley Machine Works v. Andrus, 653 F.2d 595 (D.C. Cir. 1981)">decline</a> to issue a lease due to projected environmental impacts. Once planning and environmental assessment are completed, a property can be made available for leasing.</p>
<p>State laws govern the allocation of petroleum on state-owned lands, and many follow a similar leasing system as that required for extraction of petroleum on public lands.</p>
<p>Extraction of petroleum is prohibited in wilderness areas, most national parks, national monuments, national rivers, and areas of critical environmental concern. For exploration or drilling for petroleum in a wetland, the operator must obtain a special permit under the <a href="http://www.eli.org/keywords/water">Clean Water Act</a>.</p>
<p>Offshore petroleum extraction also <a href="Campbell-Mohn,%20et%20al.,%20at%20p.%201141-42.%2043%20U.S.C.%20§%201347">requires</a> planning and leasing, and the extraction fundamentals are essentially the same, however the statutory authority for offshore drilling focuses much more on the increased hazards of drilling in the sea. &nbsp;The <a href="http://www.epw.senate.gov/ocsla.pdf">Outer Continental Shelf Lands Act</a><a href="#_msocom_27"></a> governs offshore leasing and extraction, and <a href="43%20U.S.C.%20§%201344.">requires</a> the Secretary of the Interior “to obtain a proper balance between the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone.”</p>
<p>For an interesting discussion of outer continental shelf legal issues, see Robin Kundis Craig, “<a href="http://elr.info/news-analysis/30/11104/mobil-oil-exploration-environmen… Oil, Environmental Protection, and Contract Repudiation: It’s Time to Recognize the Public Trust in the Outer Continental Shelf</a>.”</p>
<p>The relatively new technique of hydraulic fracturing has made many shale oil and gas deposits in the United States and abroad economically feasible for extraction. For a discussion of the environmental impacts from hydrological fracturing, listen to and download materials from the ELI seminars “<a href="http://www.eli.org/events/hydraulic-fracturing-risks-and-opportunities"… Fracturing Risks and Opportunities</a>” and&nbsp; “<a href="http://www.eli.org/events/nuts-and-bolts-marcellus-shale-drilling-and-f… and Bolts of Marcellus Shale Drilling and Fracking</a>.” For more information on potential environmental and legal issues related to this extraction method, see Sy Gruza, “<a href="http://elr.info/news-analysis/42/10331/will-nysdec%E2%80%99s-proposed-r… NYSDEC’s Proposed Regulations Prevent the Potential Significant Adverse Impacts of Fracking?</a>” and Holli Brown, “<a href="http://elr.info/news-analysis/41/11146/attack-frack-new-york%E2%80%99s-… Attack on Frack: New York’s Moratorium on Hydraulic Fracturing and Where It Stands in the Threat of Takings</a>.”</p>
<h2><a name="Minerals"></a>Minerals</h2>
<p>The <a href="http://www.earthworksaction.org/files/publications/EWfs-1872MiningLaw-W… Mining Law of 1872</a> codified the presumption that public lands are open to exploration by private individuals for all minerals covered by the Act; to remove this presumption requires an affirmative act of Congress. A prospector who finds a valuable mineral has first claim to it, so long as she or he diligently works the claim and continuously occupies the parcel under a doctrine known as <a href="#" title="“Doctrine which normally only governs rights prior to discovery of valuable minerals while party is still prospecting; it protects prospector from intervention by another prospector, but only so long as he remains in actual possession of the claim and is diligently searching for minerals.” Black’s Law Dictionary, 6th ed."><em>pedis possessio</em></a><em>.</em> The claimant must then meet various other <a href="#" title="30 U.S.C. § 28.">requirements</a>, including designating the mineral deposit as lode (vein-like) or placer and maintaining at least $100 a year toward developing the claim, after which the government will convey the land.</p>
<p>A claimant has the option of buying the parcel, for $2.50 per acre on a placer or $5 per acre on a lode, which results in “<a href="#" title="43 C.F.R. § 3862.4-6.">patenting</a>” the claim. When a claim is patented, it results in private ownership of the parcel. Since 1994, however, Congress has annually supported a moratorium on processing new patents, thus restricting private prospectors from obtaining ownership of public mining lands.</p>
<p>For a discussion of the effectiveness of the general mining law that has been in effect since 1872, see Mark Squillace, “<a href="http://elr.info/news-analysis/18/10261/enduring-vitality-general-mining… Enduring Vitality of the General Mining Law of 1872</a>.”</p>
<h2><a name="Soil"></a>Soil</h2>
<p>Although often not thought of as a natural resource, soil is one of the most important natural resources. It serves as the basis for the crops upon which human society is built. At the federal level, the <a href="http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/home">National Resources Conservation Service</a> plays a significant role in ensuring the conservation of productive topsoil as well as other natural resources.</p>
<p>For a discussion of the importance of and steps for soil protection, see J. William Futrell, “<a href="http://elr.info/news-analysis/39/10077/new-action-soil-protection">New Action for Soil Protection</a>.”</p>
<h2><a name="Ocean-Fisheries"></a>Ocean Fisheries</h2>
<p>Economic statistics released by <a href="http://www.noaa.gov/">NOAA</a&gt; show that commercial and recreational fisheries in the U.S. contributed $72 billion to the Gross National Product and supported 1.4 million jobs in 2010. The average American consumes almost <a href="http://www.nmfs.noaa.gov/mediacenter/2011/09/fus_sept2011.pdf">16 pounds</a> of seafood products annually, and the United States is the <a href="http://www.st.nmfs.noaa.gov/st1/fus/fus10/highlight2010.pdf">third</a&gt; largest consumer of seafood behind only China and Japan.</p>
<p>ELI has a long-running <a href="http://www.eli.org/Seminars/ocean_series.cfm">Ocean Seminar Series</a> that is open to the public to watch and download materials from on topics including “<a href="http://www.eli.org/events/designing-effective-and-enforceable-catch-sha… Effective and Enforceable Catch Share Systems</a>,” “<a href="http://www.eli.org/events/atlantic-bluefin-tuna-challengesustaining-hig… Atlantic Bluefin Tuna Challenge: Sustaining a High-Value Migratory Species in a Highly Impacted Ocean</a>,”&nbsp; and “<a href="http://www.eli.org/events/fisheries-law-enforcement-status-and-challeng… Law Enforcement: Status and Challenges</a>.”</p>
<p>For a discussion on the founding of national marine sanctuaries, see William Chandler, “<a href="http://elr.info/news-analysis/34/10505/history-and-evolution-national-m… History and Evolution of the National Marine Sancturaries Act</a>.”</p>
<p>To effectively manage fisheries and reduce overfishing, the harvesting of fishery resources must be sustainable. The <a href="http://www.nmfs.noaa.gov/sfa/magact/">Magnuson-Stevens Fishery Conservation Act</a> is the basic federal authority covering ocean fisheries management, and was enacted to optimize U.S. utilization of coastal fisheries. The Magnuson-Stevens Act grants sovereign rights and fishery management authority over all fish within the exclusive economic zone, 200 nautical miles from the shore. Its <a href="#" title="16 U.S.C. § 1811. ">purposes</a> are:</p>
<ol start="1">
<li>Acting to conserve fishery resources</li>
<li>Supporting enforcement of international fishing agreements</li>
<li>Promoting fishing in line with conservation principles</li>
<li>Providing for the implementation of fishery management plans (FMPs) which achieve optimal yield</li>
<li>Establishing Regional Fishery Management Councils to steward fishery resources through the preparation, monitoring, and revising of plans which (A) enable stake holders to participate in the administration of fisheries and (B) consider social and economic needs of states.</li>
<li>Developing underutilized fisheries</li>
<li>Protecting essential fish habitats.</li>
<p>To carry out these purposes, the <a href="http://www.nmfs.noaa.gov/">National Marine Fisheries Service</a>, which is delegated power from the Department of Commerce, appoints members to eight <a href="http://www.nmfs.noaa.gov/sfa/management/councils/">regional fishery councils</a>. The councils are responsible for developing <a href="http://www.nmfs.noaa.gov/sfa/domes_fish/FMPS.htm&quot; title="List of current plans">Fishery Management Plans</a><a href="#_msocom_36"></a> (FMPs), which must specify the criteria that determine when a stock is overfished and what measures are needed to rebuild it. FMPs establish rules limiting the size and amount of fish that can be taken, where fishing can occur, and what fishing methods can be used. FMP provisions are implemented through a permitting system for commercial and recreational fishermen.&nbsp; FMPs are enforced by NOAA’s <a href="http://www.nmfs.noaa.gov/ole/">Office of Law Enforcement</a> in conjunction with the <a href="http://www.uscg.mil/">U.S. Coast Guard</a> and <a href="http://www.fws.gov/offices/statelinks.html">state agencies</a>; civil penalties are the primary vehicle to address violations.</p>
<p>For a discussion of fisheries management, see Richard Hildreth, “<a href="http://elr.info/news-analysis/36/10833/achieving-fisheries-sustainabili… Fisheries Sustainability in the United States.</a>”</p>
<h2><a name="Natural-Resource-Damages"></a>Natural Resource Damages</h2>
<p><a href="http://www.epa.gov/superfund/programs/nrd/primer.htm">Natural resource damages</a> is the notion that a party who causes harm to natural resources, like wildlife, marshes, or drinking water, should be held liable to restore the resource and pay reparations to people who may have relied on those resources.&nbsp; For example, when the Exxon Valdez and the Deepwater Horizon spilled oil into the ocean, wildlife were killed; beaches were closed; fish were harmed; and fisheries closed. Natural resource damages allow the federal and state governments, as <a href="#" title="For example, the National Oceanic and Atmospheric Administration and the Department of Interior have extensive natural resource damage assessment programs.">trustees</a> of the resources, to recover money from those who caused the damage as reparation.</p>
<p>For an overview of natural resource damage assessment, see “<a href="http://eli-ocean.org/wp-content/blogs.dir/2/files/NRDA-Participation-20… in Natural Resource Damage Assessment and Restoration</a>.” For an extensive, expert discussion of natural resource damage assessment, see Valerie Lee, “<a href="http://www.eli.org/eli-press-books/natural-resource-damage-assessment-d… Resource Damage Assessment Deskbook: A Legal and Technical Analysis</a>.” For a discussion of natural resource damages from the Deepwater Horizon spill, see Matthew Coglianese, “<a href="http://elr.info/news-analysis/40/11100/importance-determining-potential… Importance of Determining Potential Chronic Natural Resource Damages from the Deepwater Horizon Accident</a>.”</p>
<h2><a name="Ecosystem-Services"></a>Ecosystem Services</h2>
<p><a href="http://www.eli.org/program_areas/ecosystem_services.cfm">Ecosystem services</a> are the suite of environmental goods and services essential to human well-being. These <a href="http://www.esa.org/education_diversity/pdfDocs/ecosystemservices.pdf&qu…; title="For a good overview of ecosystem services, read this from the Ecological Society of America. ">services</a> cover a broad spectrum, ranging from flood control to climate regulation. Society often considers ecosystem services to be free public benefits and does not assign them a value that reflects their societal contribution. By identifying the economic and societal value of ecosystem services, we can protect critical services and compensate for those lost due to environmental impacts.</p>
<p>Listen to an ELI seminar on ecosystem services: “<a href="http://www.eli.org/Seminars/past_event.cfm?eventid=383">2007 Environmental Law Institute Miriam Hamilton Keare Policy Forum — Ecosystem Services: Is There a Business Case for Environmental Protection?</a>” ELI has published <a href="http://www.eli.org/Program_Areas/ecosystem_services_projects.cfm">numer… reports</a> on ecosystem services.</p>
<p>For a general overview of ecosystem services law, read a transcript of the ELI seminar “<a href="http://elr.info/news-analysis/37/10573/law-and-policy-ecosystem-service… and Policy for Ecosystem Services</a>” or see Ira Feldman, “<a href="http://elr.info/news-analysis/37/10756/ecosystem-services-framework-law… Services as a Framework for Law and Policy</a>,” Michael Jeffrey, “<a href="http://elr.info/news-analysis/42/10041/development-payments-ecosystem-s… Development of Payments for Ecosystem Services in China: Cutting Through the Cloud of Confusion Over China’s Eco-Compensation</a>,” and David Cooley, “<a href="http://elr.info/news-analysis/42/10150/stacking-ecosystem-services-paym… Ecosystem Services: Risks and Solutions</a>.”</p>
<p>Increasingly, policymakers are coming to use payment for ecosystem services as a tool for recognizing the value inherent in ecosystem services and helping economic systems to account for this value. This concept is closely related to the idea of pricing pollution—putting a price on carbon emissions, for example, to reflect the externality of climate change imposed on society in general when greenhouse gases are emitted at no cost to the emitter.</p>
<p><a href="http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/ENVIRONMENT/EXTEEI/0,,m… World Bank</a> and others have been pushing for the cost of developing natural resources to be reflected in national accounting, such as gross domestic product. One example is the recent World Bank report “<a href="http://siteresources.worldbank.org/EXTSDNET/Resources/Inclusive_Green_G… Green Growth: The Pathway to Sustainable Development.</a>”</p>

Equal Justice Under Law
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Todd Kim, Assistant Attorney General, Environmental and Natural Resources Division

As an assistant attorney general, Todd Kim works on some of the country’s most consequential conservation and pollution issues. His unit, the Environment and Natural Resources Division at the Department of Justice, is responsible for bringing charges against violators, defending federal agency actions, and enforcing over 150 laws. Yet even for the environment enthusiast, the division’s work is often not well understood. As former head of ENRD, John Cruden, puts it, “The division is much broader than most people—even most practitioners and academics—think.”

Todd Sunhwae Kim was sworn in as assistant attorney general of the division on July 28, 2021. Just shy a week of his first full year, I spoke with him over video call to hear his reflections on his team’s upcoming priorities, and learn more about the division’s vital work.

Through my Zoom portal, Kim’s office radiated with rich mahogany, a large U.S. flag hanging prominently on the back wall. He speaks with a swift and measured cadence, using almost no fillers—perhaps reflecting the many hours he has spent litigating before judges.

“I certainly think for the layperson, the work of the Environmental Protection Agency is understood and remembered more than the work of ENRD,” Kim admits. One reason may be the sheer breadth of the division’s work. ENRD encompasses 10 sections, working on well-known appellate cases, environmental crimes, defense, and enforcement—but also Indian resources, land acquisition, and wildlife and marine resources. The division’s top five clients are EPA and the departments of Interior, Agriculture, Defense, and Transportation. Yet what exactly ENRD does for these federal agencies is not straightforward.

“What I imagine most people think of when they think about environmental lawyers at the Department of Justice is environmental enforcement,” Kim says. That means attorneys bringing cases against those who violate the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and other statutes—typically through the division’s environmental enforcement section in civil cases, or through the environmental crimes section in criminal matters.

“And they wouldn’t be wrong,” he says. “Our environmental enforcement section is one of the largest litigating sections in the whole Department of Justice.” The division’s website notes that almost half of ENRD lawyers bring cases against polluters. But as for the rest, “The defensive work we do is not as well understood.”

Lawyers at the division also defend against challenges to statutes and federal agency actions, many of which have significant implications for climate and other policy issues. Policies defended by ENRD relate to siting renewable energy projects, ensuring healthy forests, regulating proper use of public lands, establishing national monuments, and much more. The landmark West Virginia v. EPA climate case this last Supreme Court term serves as just one example of the team’s critical defensive work. The Court retained EPA’s authority to regulate carbon under a provision of the CAA but held that the agency could not use “generation-shifting”—phasing out coal—to set emissions targets.

Attorneys also work to protect rights and resources of tribes in the Indian resources section. Their cases include decades-long water rights adjudications and other complex natural resource matters. The work is “foundational, and speaks to good government and what it means to be a trustee for Indian tribes and their members,” Kim says.

ENRD also tackles worker safety violations in its environmental crime section, using criminal law to “ensure appropriate deterrence so that America’s workers are not subjected to illegal and improper conditions,” Kim says. The division even works on animal welfare. A July enforcement action against a facility owned by the company Envigo RMS in Cumberland, Virginia, resulted in the rescue of thousands of beagles that had been housed in illegal and inhumane conditions.

But despite the seemingly disparate subjects handled by the division, many cases do not fit neatly in one box. In a single case, “The environmental defense section could be dealing with a Clean Water Act issue, while the wildlife and marine resources section deals with an Endangered Species Act issue, while the Natural Resources section tackles a National Environmental Policy Act issue,” Kim explains.

The division’s sections are corded together by a team of five deputy assistant attorneys general, who each lead two sections and coordinate among each other. Put together, ENRD takes on a staggering 6,000 pending matters at a time, according to Kim. These include cases, referred matters, and other work that does not show up in court. For example, the division’s law and policy section comments on other agencies’ draft rules and helps with potential legislation and amicus briefs.

Like his division, there’s more to the assistant attorney general than meets the eye. Kim’s legal career actually began in the division he leads today, as a lawyer in the Attorney General’s Honors Program. In 2004, just six years into his work at ENRD, Kim sat opposite celebrity host Regis Philbin and won $500,000 on the premier of “Who Wants to Be a Super Millionaire?” He is also a lover of music, having grown up playing the violin and piano. In later years he sang with the Choral Arts Society of Washington—“as part of a chorus, not a soloist. No one wants to hear me solo,” he jokes.

Kim discovered a passion for the environment at a young age. “When I was 11 years old, my parents piled me and my sister into an RV, and we took a classic RV trip out to the American West to see some national parks: Yellowstone, Grand Teton, Arches, Mesa Verde,” he recounts. “I think we were only gone for two or three weeks, but it felt like months. The beauty and the grandeur, getting to do things like fish, hike—it was amazing. I think that was a big part of why I became so interested in preserving America’s beauty.”

He soon identified law as a natural avenue to channel his enthusiasm. “I grew up a pretty idealistic kid. A lot of that had to do with my parents—they immigrated to the States in the 1960s and they were full of admiration for American people and American ideals,” he says. “From a very early age, a career as a lawyer appealed to me as a way to strive for social justice.”

But he quips that “I also had an elementary school teacher who said that I was really good at arguing. So maybe that had something to do with it too.”

Not much has changed about Kim’s outlook since his childhood in New Jersey. “I’m still quite idealistic, frankly,” Kim says. “I’m proud to work at the Department of Justice, where securing equal justice under law is our mission.”

Upon graduating from Harvard Law School, he clerked for Judith Rogers of the D.C. Circuit Court. He then joined ENRD and stayed at the division for seven and a half years. The experience was “a dream beginning to my career,” Kim says today. As a young lawyer, he flew across the country to argue in all the courts of appeal, arguing memorable cases including United States v. Shell Oil Company in 2002. The case dealt with the McColl Superfund site in Fullerton, California, concerning who would bear responsibility for over a hundred million dollars in cleanup costs. “Being able to take a fairly voluminous record, master it, and then get a favorable decision on a case of great import—both financially, but also for the people affected by the Superfund site—was especially meaningful to me,” says Kim. “It really cemented my inclination to be a public interest lawyer.”

After making his rounds through the courts, Kim then became the first solicitor general for the District of Columbia. For over eleven years, he represented the district in high-level cases, including at the Supreme Court. A brief stint in the private sector later, Kim returned to the federal government as deputy general counsel for litigation, regulation, and enforcement at the Department of Energy.

Kim's first year heading ENRD has been a busy one. In May, Attorney General Merrick Garland announced a new comprehensive environmental justice enforcement strategy and launched the department-wide Office of Environmental Justice, consistent with directives outlined in an executive order by the Biden administration.

The new Office of Environmental Justice, situated within ENRD, aims to streamline and support DOJ’s work on EJ matters. As Kim puts it, “Part of the goal is just making sure that everyone keeps front of mind that environmental justice is a key aspect of DOJ’s mission.” That means “creating habits, processes, and ways of doing work that lend themselves to people centering environmental justice, now and going forward.”

EJ issues, which occur in many different contexts and potentially implicate many different statutes, “demand coordination across different components of the department,” Kim says. On the ground, that means DOJ needs to “establish a protocol for talking amongst ourselves to use all the tools we can to alleviate the burdens a community is facing.”

“These burdens may not be strictly limited to issues under the Superfund law, for instance,” he explains. “As an example, we are developing resources so that when the civil rights division has a particular matter that could implicate statutes ENRD enforces, they know that they can bring us in—and vice versa.”

Kim emphasizes that these strategies should not only maximize effective coordination, but also lead to DOJ initiating more EJ-related cases. In fact, the department’s comprehensive enforcement strategy lists as its first principle, prioritizing “cases that will reduce public health and environmental harms to overburdened and underserved communities.”

The Office of Environmental Justice is still in the process of hiring staff. But Kim notes encouraging progress already. “According to the comprehensive environmental justice enforcement strategy, every U.S. Attorney’s office is supposed to appoint an environmental justice coordinator within their district. And I’m glad to say every single one has; we have a hundred percent compliance.” The team is now moving ahead to conduct trainings and provide other resources to districts, with an eye toward ensuring lasting change in DOJ’s work to remedy burdens on low-income communities, communities of color, and Indigenous communities.

Throughout our conversation, Kim was quick to praise his colleagues, frequently expressing appreciation for their work. It was, in real time, a chance for me to observe the top guiding principle in his work: respect. When interacting with colleagues and clients, as well as opposing counsel and the courts, Kim emphasizes the importance of “working with integrity,” as he puts it. “Work with empathy, and work with an understanding of where they’re coming from. If you do those things, and you do it with competence, then good things will happen.”

The value is deeply tied to his commitment to public service, illustrated by a legal career almost entirely spent in government. “Meaning in my professional life is derived from doing things for others. Being able to do that with the talented, dedicated, and mission-driven people at ENRD makes it easy to be motivated every day—even the hard days,” he says.

Having climbed the ranks, Kim now directs this energy in leadership. Upon assuming his posts as D.C. solicitor general and as ENRD’s assistant attorney general, “One of the first things I did was sit down with every single person I’d be supervising and ask what I could do to help them be effective in their positions,” he says. To Kim, conveying respect as a leader requires “taking actions consistent with an understanding that they know their job better than I do.”

It’s no wonder that he names staff morale as one of his team’s biggest accomplishments this year. In the Partnership for Public Service’s 2021 Best Places to Work in the Federal Government, an annual list viewed as a benchmark for federal workplace satisfaction, ENRD landed within the top 10 percent. The boost is especially significant given recent political scandals at the division—the preceding head of ENRD, Jeffrey Clark, faced allegations of pursuing claims of election fraud following the 2020 presidential election. While reluctant to compare directly between administrations, Kim was forthright in sharing his team’s efforts to lift morale.

“My chief of staff, Mike Martinez, and I work hard to try to ensure that morale is high, because for the mission of the division to be accomplished as well as it can be, it’s all about the staff,” Kim says. In addition to an open-door policy for feedback, the team has reinvigorated a speaker series, inviting luminaries within and outside the government to speak to staff on relevant law and policy topics.

Looking toward the next year and beyond, Kim names combating the climate crisis and advancing environmental justice as his biggest priorities, both personally and in alignment with the Biden administration’s objectives. The Office of Environmental Justice and comprehensive EJ enforcement strategy, in particular, will require substantial attention. “I want to make sure those get off the ground and succeed, and become integrated into the department’s DNA,” Kim says.

And true to his leadership philosophy, Kim names supporting a healthy career staff as an equally important goal. “The attorneys and professional staff we have—they’re excellent. I want to keep them, and I want to motivate them to keep on doing a great job.” TEF

PROFILE For federal actions on climate change and environmental justice to succeed, the government needs a robust team of lawyers to back it up. Todd Kim, the Justice Department’s top defender of public health and natural resources, takes the lead.

Strengthening Water Tenure
Jessica Troell - Environmental Law Institute
Environmental Law Institute
Current Issue
Strengthening Water Tenure

Some two billion people — a quarter of humanity — lack access to safe, readily available drinking water. Moreover, freshwater security is increasingly threatened as the result of climate change, unsustainable development, and population growth. In the midst of this burgeoning water crisis, the rights of communities around the world who collectively hold, manage, and depend on freshwater resources continue to be inadequately recognized and protected. Securing the legal basis for indigenous and local community water rights can be a key national and local response.

Indigenous peoples and local communities continue their struggle to gain legal recognition of land, water, and other natural resources found within the territories they have traditionally stewarded. The realization of communities’ freshwater tenure is particularly essential to their ability to maintain food security and livelihoods, as well as to achieve other sustainable development objectives.

Observing the ways in which secure tenure underpins equitable and sustainable development, many countries have made tangible progress in legally recognizing and protecting land and forest rights. But water tenure has received far less attention. Indeed, the definition and understanding of the term itself is still evolving. Additionally, the most fundamental legal entitlements that support communities’ water security have yet to be fully articulated or generally endorsed internationally.

The development of principles and tools to guide policy and legal reforms, notably the UN Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests, has provided an important basis for building policy consensus on what constitutes responsible governance of tenure. A key aspect of this international consensus has been the importance of prioritizing the rights of the rural poor. Early discussions on the inclusion of water tenure in such guidance foundered on the unique aspects of water as a fugitive, inherently shared, and essentially public resource, which collectively makes it difficult to conceptualize water tenure in the same way that tenure is framed in the context of land and other terrestrial resources. Nevertheless, it is possible to articulate — both conceptually and based on legislative practice — a core set of water rights that comprise (in varying formulations) the diverse water tenure regimes found around the world. Taking this bundle-of-rights approach enables countries to identify areas for harmonization of legislation across water, land, forest, and other key resource sectors and, in turn, provides an important framework that can support integrated and more equitable governance.

The importance of water tenure, its practical and legal interdependencies with land and forest tenure, and the need for the further development of its conceptualization in policy and practice led to a joint undertaking by the Rights and Resources Initiative and ELI to develop a framework designed to conceptualize, compare, and track national-level legal recognition of the most essential rights for securing community-based freshwater tenure.

We applied this Freshwater Tenure Methodology across 15 countries spread through Africa, Asia, and Latin America in order to assess the extent to which various national-level legal frameworks within these countries recognize and protect the freshwater rights of indigenous peoples and local communities. Importantly, we also focused on the role of women within those communities in water use and governance. The findings from this analysis — titled, “Whose Water? A Comparative Analysis of National Laws and Regulations Recognizing Indigenous Peoples’ and Local Communities’ Water Tenure”— is now available online. The dataset underpinning its findings will be expanded and updated over time.

Drawing on widely accepted understandings of land, forest, and fisheries tenure, the UN Food and Agriculture Organization has proposed this definition of water tenure: “The relationship, whether legally or customarily defined, between people, as individuals or groups, with respect to water resources.” This definition recognizes that water tenure goes beyond water rights to capture diverse legislative and customary systems that shape how various stakeholders — whether as individuals or groups — relate to one another in their use of, and impacts on, this resource. The acknowledgement of customary water tenure regimes is also critical, as they are often the primary means by which many indigenous peoples and local communities determine how group members access, use, and govern the water they need for food, livelihoods, health, and overall well-being.

Water tenure also derives its meaning and utility from the bundle of rights that constitute the fundamental elements of peoples’ relationship with each other when it comes to freshwater resources. Rights to use and manage water are governed both by legislative and customary frameworks, which may or may not be aligned with one another. Unpacking the bundle of rights that constitutes various forms of water tenure thus helps governments and others to understand the diverse ways in which the specific rights constituting tenure regimes are practically formulated, implemented, and enforced.

A bundle-of-rights approach also builds on broadly accepted understandings of common-pool-resource property rights, as well as definitions of land and forest tenure, thus allowing for a comparitive review of regimes at a landscape or territorial level. In many countries, recognition of water rights is predicated on legally recognized land or forest rights. This legislative “land-water nexus” impacts both the realization and security of water tenure rights and points to the need for more coherence across legal frameworks impacting tenure rights in related sectors.

Indigenous and local communities constitute one-third of the world’s rural poor and are among the planet’s most frequently marginalized groups. They face inequities in access to critical services, including education and other essential resources, and suffer from comparatively higher levels of poverty. This enhanced vulnerability is often more pronounced for the women in these communities. As pressures on freshwater resources mount, legal protections for the tenure rights of indigenous peoples and local communities are therefore critical to ensuring their water security.

The legal status of community-based water tenure is often further complicated by the primary role that customary rights can play in determining how some communities use, manage, and govern their water resources. The legal recognition of customary water rights varies widely across countries, and the complex relationships that can arise between legislative and customary water rights may present serious challenges. Given the high level of dependence that local communities in developing countries have on natural resources, securing their water tenure rights is of paramount importance to their ability to support sustainable livelihoods, achieve food security, and enable economic advancement — while also ensuring that communities can continue in their roles as stewards of the freshwater and broader ecosystems on which they, and others in cities and rural areas downstream, depend.

“Whose Water?” follows extensive work by the Rights and Resources Initiative to analyze the extent to which indigenous peoples’ and local communities’ land and forest tenure rights are recognized under national law. Building on RRI’s unique methodological approach, ELI and RRI began developing the Freshwater Tenure Methodology to assess whether community-based freshwater rights, including rights to surface and groundwater, are legally recognized, and how those rights are protected or addressed within national legal frameworks regulating and impacting freshwater resources. We developed the methodology through a highly consultative process and piloted it in three countries before it was finalized.

The methodology defines a community-based water tenure regime as a distinguishable set of national-level, government-issued laws and regulations encompassing situations in which freshwater rights of use and at least either governance or exclusion are held at the community level. Communities are defined broadly to capture a range of indigenous peoples and water-user associations or similar entities that include such communities. Our team identified a total of 39 CWTRs across the 15 countries we assessed: Bolivia, Cambodia, Chile, Colombia, India, Kenya, Liberia, Mali, Mexico, Morocco, Nepal, Panama, Peru, Vietnam, and Zambia.

We then worked with national experts to examine the bundle of rights for each tenure regime using five legal indicators: use, exclusion, transferability, governance, domestic due process, and transboundary due process. In addition, to provide critical context for each regime, the Freshwater Tenure Methodology includes threshold questions to assess legal recognition of the human right to water; customary water rights, laws, traditions, or practices; the dependence of communities’ water rights on their recognized rights to land and forests; and indigenous and rural women’s rights to water.

The right to use water is perhaps the most central right in the bundle, fulfilling basic human needs, ensuring health, and realizing the full suite of human rights that can only be achieved through access to water. To capture the broad range of potential rights that are relevant to communities, our methodology recognizes four categories of commonly recognized uses: for religious or cultural purposes, domestic purposes or basic human needs, small-scale livelihoods, and commercial purposes. Domestic-use rights are the most consistently protected, and the majority of community-based water tenure regimes exempt domestic uses (defined in various ways) from any sort of permitting or licensing requirement.

National laws frequently give these rights legal priority with respect to competing uses. National laws also recognize use rights for livelihoods, although some require a permit or other administrative procedural requirement in order to vest the rights. While permitting systems can help monitor and regulate water use, reduce associated conflicts, enhance sustainability, and generate public revenue, they are seldom adapted to meet the needs and circumstances of local communities. These requirements can translate into a burden for communities in realizing critical use rights for livelihoods where such administrative requirements are coupled with fees, a need to travel sometimes long distances to reach administering agencies, language barriers, and often restricted capacity of government to effectively implement the requirements in remote rural areas.

The rights to plan, make, implement, and enforce decisions and resolve associated disputes — in short, to govern — are also critical aspects of community-based water tenure. To capture the ways in which communities are legally empowered to govern their water resources, the Freshwater Tenure Methodology assesses whether communities have rights to make rules related to their water resources, to make plans and implement those plans by managing those resources, to resolve water-related disputes in the community, and to enforce internal rules related to water. Notably, all but one community-based water tenure regime we identified legally recognize community rights to make rules concerning fresh water, and all 39 recognize communities’ rights to water resource planning and management. However, the tenure regimes that recognize water governance rights are also often premised on the broader legal recognition of communities’ customary or traditional rights to territories or lands and appurtenant resources and are not specific to water. These rights are also found across a range of laws with provisions that may or may not be aligned with the pertinent water legislation.

The right to exclude third parties ensures that communities have the legal authority to protect their water rights and territorial water resources from capture or abuse. Exclusion is generally considered one of the most essential components that make a bundle of terrestrial tenure rights meaningful. However, because of water’s fugitive and shared nature, it can be subject to overlapping claims. Moreover, water rights regimes are often predicated on balancing the public and private property rights in water. This balance is increasingly informed by the legal recognition of water as a human (and constitutional) right, placing a unique onus on governments to ensure equitable access to — and sustainable management of — the resource.

Legal rights to exclude third parties therefore often do not apply to those who seek to use fresh water to fulfill basic human needs, which are generally safeguarded. Exclusion rights also are often limited to private parties, as governments typically establish legal rights to control or even own all fresh water to administer on behalf of citizens as a public trust. However, even given these constraints, over 60 percent of the tenure regimes we analyzed provide some form of exclusion rights to communities. Not surprisingly, most of these are tenure regimes based on a land-water nexus that premises water rights on existing legal rights to land, forest, or territories.

Particularly where exclusion rights are missing or ineffectual, procedural rights enabling access to information, participation in decisionmaking, and access to justice where water rights are infringed upon take on even greater importance. All 39 of the CWTRs recognize communities’ due process rights of prior notice, consultation, and appeal when decisions related to the development or allocation of fresh water (or other related matters) could impact their rights. It is important to note, however, that these rights emanate from multiple sources of law, often outside the water sector, such as land laws and environmental impact assessment provisions. They are therefore not always specific to water resources or the unique impacts they can incur. Some countries have taken the initiative to require free, prior, and informed consent for decisions impacting indigenous and other communities, whether through national legislation or court decisions. Despite these positive developments, the majority of countries provide communities with less robust procedural guarantees to ensure their water rights are not infringed or extinguished by third parties.

Among the most policy relevant findings of our assessment are the variety of ways in which water tenure rights depend upon and are shaped by land and forest rights. The land-water nexus is also directly linked to the diverse ways in which customary land and water laws are given legal status and the legal recognition of indigenous territorial rights.

The nexus takes many forms under diverse national laws, deriving from land, forest, and water laws, as well as national constitutions, local government and administrative laws, and other legislation. In Kenya, for example, land is defined by the constitution to include “any body of water” on or under the surface of the land, and so provides recognition for the water appurtenant to customary lands that are legally recognized under the 2016 Kenyan Community Land Act. In Colombia, Constitutional Court decisions have recognized freshwater rights as integral to communities’ territorial rights, and in Liberia and India, certain communities’ statutory water rights are entirely dependent on their recognized forest rights.

Notably, across our 39 identified CWTRs, those that have a land-water nexus tend to grant stronger overall protections to communities’ water tenure rights. This indicates that water laws are falling somewhat behind in their recognition of CWTRs compared to other sectoral laws. However, it is also important to note that recognition of water-tenure rights is often not explicit when embedded in other sectoral laws or constitutional provisions, but rather included in broader provisions governing rights to territories, lands, or natural resources more broadly.

The recognition of water rights across laws governing lands and forests can provide diverse legal avenues for recognition of water tenure. At the same time, if laws are not consistent in how they address the elements of water tenure, those rights can also be undermined, result in duplicative requirements, or even lead to contradictory provisions. A clear understanding of the specific legal mechanisms creating or shaping the land-water nexus is therefore critical in defining and securing communities’ water tenure. Moreover, the legal interdependencies across water, land, forest, and other resource tenure systems must be reflected in policies and laws that take harmonized approaches to recognizing and protecting land and water rights — or risk undermining tenure security of the most vulnerable.

Our analysis found that only one-third of the tenure regimes legally recognize the specific rights of indigenous and community women to use or govern fresh water. Moreover, two-thirds of those provisions that do recognize women’s water rights are not specific to water, but rather pertain more broadly to rights to natural resources or to community territories, which can be interpreted to include their freshwater resources.

The ability of countries to support women within indigenous and local communities in exercising control over water resources depends largely on the extent to which national laws recognize women’s rights to participate in community-level governance. Without gender-sensitive legal protections, it is difficult to ensure that women can actively engage as equal members in community-level decisionmaking about water to ensure that it is appropriately allocated for their priority domestic and productive needs.

Customary water laws and practices are often the primary means by which indigenous peoples and local communities determine in practice how to access, use, and govern their water. Broadly speaking, customary laws reflect the norms and practices accepted by a community as unifying and obligatory and draw their authority from both contemporary and traditional values, practices, and institutions. They are not static but tend to adapt to community needs and priorities. Where customary rights and laws are not formally recognized, they are at risk of being ignored, manipulated, and eroded when competing claims arise.

Approximately 80 percent of the 39 CWTRs analyzed across Africa, Asia, and Latin America provide legal recognition of customary water tenure rights, creating a legal basis for ensuring the continuity and enforceability of those rights. However, even where customary water tenure rights are recognized, such rights must often be reconciled or harmonized with legislation, which can fundamentally alter their character and functioning. Moreover, even where customary water tenure rights are granted legal recognition, there is a risk that they will not enjoy the same level of enforcement as permitted rights. There is thus a strong need for research to understand the diverse impacts and policy options for improved recognition of customary water tenure rights and more effective harmonization of customary and legislative systems.

Across the water tenure regimes, we found a high number of water rights for livelihoods and commercial uses are subject to permitting or other procedural requirements. These burdens can be significant. In Nepal, for example, communities must form up to three distinct user associations to obtain their full suite of potential water use rights, including those for irrigation. The burden on communities is often compounded by the fact that governments often lack the capacity to implement their own administrative requirements, particularly in rural areas. For example, recent research across five African countries by the International Water Management Institute and the Pegasys Institute demonstrates the inability of countries to achieve even a small fraction of statutory permitting requirements and a bias toward formal, large-scale users.

Our findings highlight a need to more closely tailor water regulatory tools to the needs and priorities of communities, including more effective recognition and protection of customary rights, consideration of alternatives to permitting requirements that balance state policy priorities with the actual capacities of both agencies and communities, and exemption where possible from permitting requirements of critical water rights for domestic and livelihoods uses.

We found that water tenure does exist — in multiple forms — and that it plays a central role in supporting indigenous peoples’ and local communities’ livelihoods, resource governance and protection, and sustainable economic development. The findings also highlight the critical importance of identifying and fully understanding the nuances of the land-water nexus and promoting more integrated, tenure-rights-based approaches to land and water governance. Such approaches must look to incorporate innovative mechanisms for intersectoral coordination and collaboration, as well as better-harmonized legislation. They must also take full account of the differentiated roles, needs, and priorities of men and women through more gender-equitable legal protections for water tenure rights.

A key consideration in determining policy options and legal tools for supporting water rights is the balance that must be struck between security of tenure and the flexibility required to be able to respond to changing availability and quality of water as a result of societal and climate-driven uncertainty and change. This could require, for example, a rethinking of the time limitations provided on administrative water rights, more effective use of legal prioritization of certain uses and water tenure holders under circumstances of scarcity or disaster, and a focus on building the capacity of water tenure institutions for adaptive management that enables adjustments in the face of uncertainty and change while still maintaining equity in allocation and accountability to all tenure holders.

With respect to the water tenure rights of indigenous and local communities, a careful assessment of the resilience of customary water tenure practices and how those can be protected by law could contribute meaningfully to their water security. This could also provide innovative alternatives to alleviate the burden on governments that lack the capacity to meaningfully bring customary tenure holders into the formal administrative water rights system. More broadly, careful consideration of the wide range of potential legal mechanisms for balancing resilience and security must be an integral part of ongoing work on water tenure.

Women within indigenous and local communities have differentiated responsibilities, needs, and priorities with respect to the domestic and productive uses of water and the sustainable management of freshwater resources. Legal recognition of the specific rights of women in these communities to use and govern water is essential for ensuring that they have a meaningful voice in decisionmaking and control over this essential resource. Despite the broad international recognition of women’s critical role in water management and decisionmaking for over 30 years, men continue to dominate water-related governance at all levels, reflecting the persistent, patriarchal gender ideology that prevails in many countries and communities. This status quo is bolstered by the notable absence of gender-sensitive legal protections, as evidenced by the findings described above.

Addressing this status quo will require gender-transformative provisions in water legislation to prohibit discriminatory practices and ensure that women are represented equitably in decisionmaking processes and in institutions charged with water governance. The pervasiveness of the land-water nexus in the legal recognition and protection of water tenure, coupled with the fact that less than 15 percent of landholders globally are women, also indicates gender-equitable water tenure will also require land and forest laws to more adequately protect and respect women’s tenure rights, including their inheritance rights to community lands and resources. To build on those practices and norms that respect resource tenure rights, particularly in the context of community-based tenure, such reforms and the resulting governance institutions must be informed by the voices of the women.

The emergence of environmental rule of law as a priority for international action, as framed by UN Environment and others, provides a critical context shaping how water tenure rights can improve environmental and water governance. While environmental and water laws have proliferated globally in recent decades, equitable and accountable implementation and enforcement of these laws often remain elusive.

The components of environmental rule of law include fair, clear, and implementable legal provisions; meaningful procedural guarantees for public participation; accountable institutions and decisionmaking; clear mandates and institutional roles; accessible, fair, and transparent dispute resolution mechanisms; and recognition of the mutually reinforcing relationship between rights and the rule of law.

These core elements of environmental rule of law must provide the context for the further elaboration of the concept of water tenure and its practical application across various contexts. At the same time, equitable and secure community-based water tenure, as captured in our assessment, has the potential to advance each of these components and contribute to more effective overall water governance at the local and national levels. TEF

Many countries have made progress in legally recognizing and protecting land and forest tenure rights. But the water rights of indigenous and local communities have received far less attention, despite their role in supporting equitable and sustainable development.

World’s Coal Lender of Last Resort Doubles Down as Warming Worsens
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
Bruce Rich

In the midst of accelerating global warming, tens of billions of dollars continue to flow from private and public international banks into financing new coal-fired power plants, especially in Asia and Africa. Until recently, Japan has been one of the biggest culprits, accounting in 2019 for over 10 percent of the external financing of new coal plants in developing countries, particularly in South and Southeast Asia — some 24.7 gigawatts.

The nation’s export credit agency, the Japan Bank for International Cooperation, has been a major funder, and so has Tokyo’s bilateral development assistance agency. Over the past year or so, international criticism of Japanese coal funding has grown sharply, encountering nothing less than “opprobrium” at the last conference of the parties to the climate convention, according to the Financial Times. Protests by local nongovernmental groups against Japanese coal projects in Indonesia and Bangladesh have proliferated as well.

In June, a climate shareholder resolution introduced at the annual meeting of Japan’s third-largest bank, Muzuo Fincancial Group, obtained nearly 35 percent of the votes cast. It was backed by major northern European banks and investment funds — something that would have been unthinkable several years ago. Although the resolution did not pass, Muzuo has already agreed to halt approval of new loans for coal-fired plants, although it still has $2.8 billion outstanding in already-approved financing for coal energy.

In July this year, the Japanese environment minister announced that the government will change its public finance policies to drastically limit funding coal in developing nations. South Korea too is jumping on board. It has been a major financer of new coal plants in the developing world, but recently Seoul endorsed its own green new deal, aiming to exit coal financing both domestically and internationally. These changes are coming about in part because Japan and South Korea have relatively transparent public and private financial sectors, where the voices of concerned foreign investors and civil society can be heard.

Unfortunately, the world’s largest financer of coal by far, both at home and abroad, has actually been increasing its coal finance over the past year — and it is not known for transparency. In 2019, China reversed its policy, announced in 2016, of drastically cutting back (by around two thirds) domestic construction of coal-fired plants. As of June, it is committed to adding 249.6 GW of new coal power. That is roughly equal to total installed coal power in the United States. According to Global Energy Monitor and the Center for Research on Energy and Clean Air, “plans for new coal plants have steadily increased since 2019, after the central government began relaxing restrictions on new coal plant development.”

Beijing has become the lender of last resort for coal plants in developing countries, accounting for 70 percent built in the world outside China. Last year 60 coal plants abroad supported by China (over 70 GW worth) were under construction or in planning, nine of which are delayed because of protests or legal opposition, for example in Kenya and Turkey.

In Sub-Saharan Africa, Chinese coal finance dominates, with 13 projects under construction and another nine in planning. In South Africa, Power China is constructing a 3 GW coal plant in Limpopo Province that the South African press and civil society have vehemently criticized. In the words of Business Insider South Africa, the Limpopo coal plant “will only be used by the Chinese,” since it will serve a multi-billion-dollar China-controlled industrial park with seven metallurgical plants.

In Zimbabwe, the Industrial and Commercial Bank of China, and Sinosure (the Chinese export credit insurance agency), approved in May support for the first phase of the $4.2 billion, 2.8 GW Sengwa coal plant complex, including a 250-kilometer pipeline to transport its cooling water all the way from the Kariba Dam reservoir. According to the Japan Times, the reservoir is already seriously depleted by recurrent droughts associated with climate change — the dam’s power turbines are forced to operate at seriously reduced capacity.

China for the past decade has been the world’s largest producer and financer of climate-friendly renewable energy infrastructure, both at home, and abroad. The central government continues to claim its commitment to a greener, cleaner energy path. But the only thing that counts in terms of avoiding a looming global climate disaster will be a much more rapid switch from fossil fuels, particularly coal. Given the scale of China’s global energy footprint, like it or not, our climate fate is literally in China’s hands.

World’s Coal Lender of Last Resort Doubles Down as Warming Worsens.

Cyclone Highlights Need for Paradigm Shift
Ryan Bartlett - WWF-US
Current Issue
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A few weeks ago, a tropical cyclone named Idai made landfall in the coastal Mozambican city of Beira, with 100 mph winds, driving rains, and surging seas, destroying or damaging 90 percent of all structures. Across the country, the wind and flooding have so far displaced 127,500 people and killed more than 500.

The storm could not have been worse for a nation so heavily reliant on agriculture, arriving in time to destroy almost 2,000 square miles of crops right before expected harvests. The resulting food insecurity is just one of many long-term challenges stemming from the storm. Cholera and other health impacts are rapidly rising and will worsen during the many months of repairs to infrastructure and restoring services to millions already living in extreme poverty.

With a history of coastal cyclones, Mozambique did not need a reminder of its vulnerability. Just last year Beira completed the first phase of a $120 million project with the World Bank to update drainage systems along the main river to reduce damaging flooding that regularly affects residents. And yet, even that wasn’t enough in the face of the new reality so many highly vulnerable coastal cities now face. The climate of the past is no longer a reliable metric for a future of increasingly extreme weather. Indeed, Cyclone Idai was one of the strongest tropical storms ever in the southern hemisphere.

Decades of exploiting Mozambique’s considerable resource wealth have in many ways worsened the impacts of such storms. The country’s natural capital — forests, reefs, wetlands, and the wildlife that inhabit them — provides an enormous bounty for local livelihoods and the national economy.

I arrived in-country just after the cyclone. I saw first-hand how important this resource wealth is to local communities beyond the reach of national infrastructure and services, where people’s livelihoods are entirely dependent on nature. They need charcoal for cooking from forests, fish in lakes and ponds, and cassava and lettuce produced from poor, sandy soils with scarce dollops of fertilizer. It is also where incredible biodiversity shows the promise of a tourism-based economy. Our group stumbled upon a migrating pod of humpback whales feeding in the nutrient-rich channel between Mozambique and Madagascar.

This natural capital also provides critical benefits that can increase resilience to the impacts and risks of a warming planet. Mangroves and coral reefs provide natural defenses against storm surges, slowing deadly wave energy. Forests and wetlands act like a sponge, absorbing and slowing flood waters. Unfortunately, these systems are being wiped out across Mozambique, as people expand agriculture and urban frontiers and more of the country’s natural wealth is opened to commercial exploitation. While forests still cover a little less than half the country, approximately 1,000 soccer fields of forests are lost every day — totaling an area equal to the size of Germany just since 1980.

With huge potential income from resource extraction and exploitation — more than $100 billion alone in revenue is expected from natural gas reserves off the coast of Cabo Delgado in the north — it is not surprising protection of these natural assets is losing out. To reverse this trend and better balance development moving forward, World Wildlife Fund is working with the government of Mozambique to explicitly address one of the most important reasons why natural capital is not being as well protected as it should be. There are insufficient data, information, and analysis on the country’s important resource assets and how they contribute to community livelihoods, support the national economy — and help people adapt to the growing impacts of an increasingly extreme climate.

What we have been doing is to work with the Mozambican government to implement its Green Economy Roadmap. The 2012 document enshrines sustainable development as official government policy. Since then, we have been working through an interministerial Natural Capital Program to develop critically needed maps that identify where nature provides the most important benefits for local communities and the larger economy, both monetary and otherwise.

As you read this, Mozambicans are working hard to incorporate this information into the national territorial development plan that organizes the next five years of economic expansion. Only with this information in the hands of government decisionmakers can we shift the resource paradigm toward greater sustainability and resilience and meet the Sustainable Development Goals and the commitments of the Paris Agreement.

A Bug's-Eye View of the Sixth Extinction
Patrick Parenteau - Vermont Law School
Vermont Law School
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Imagine a world without bugs. Sounds appealing at first. No more mosquitoes spreading disease. No more ticks hiding in your socks. No more ants ruining your picnic.

But what if there were no insects to pollinate your food? Up to 75 percent of our cultivated plants and up to 90 percent of all wild plants are dependent on insects to propagate. What if there were no insects to decompose waste and recycle organic substances essential to maintaining soil fertility? What if there were no good bugs to eat the bad bugs?

Insects are the most abundant form of life on Earth. 1.5 million varieties have been catalogued. In terms of biomass, insects outweigh humanity by 17 times. But more than 40 percent of insect species are declining and a third are endangered. The rate of extinction is eight times faster than that of mammals, birds, and reptiles. The total mass of insects is falling by a precipitous 2.5 percent a year. At that rate, insects could be functionally extinct within a century. The main drivers of this decline appear to be habitat loss through conversion to intensive agriculture and urbanization, pesticides and fertilizers, invasive species, and climate change.

Even if the predictions of an “insect apocalypse” prove hyperbolic, there is no doubt that we are in the throes of the Sixth Extinction. Only this time it is not meteors raining death and destruction on global biodiversity. It’s humans. According to distinguished conservation biologists like E. O. Wilson, the rate of human-caused extinctions is hundreds or thousands of times the natural rate. And it would take millions of years for nature to replace the biodiversity being lost, according to a study by Danish researchers.

The legal and policy responses to this impoverishment of the natural world have been woefully inadequate. The Convention on Biological Diversity was signed by 150 nations at the 1992 Earth Summit, with the United States abstaining. It begins with the lofty objectives of “the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.” But the results have been disappointing. None of the 196 nations that have ratified the treaty met their 2010 targets for reducing biodiversity loss.

In 2010, the CBD announced a strategic plan that includes 20 global biodiversity goals, known as the Aichi Targets, to be achieved by 2020. The goals include conserving 17 percent of total terrestrial and inland water on Earth and cutting in half the current rate of loss of all natural habitats. Fully funding the Global Environment Facility created at the Earth Summit, which is the CBD’s principal mechanism for financing projects, is the biggest challenge. The Trump administration’s cancellation of the U.S. contribution hasn’t helped.

In the United States, the Endangered Species Act, which the Supreme Court once called “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation,” has not been re-authorized since 1992, a victim of the gridlock in Congress.

Even when it is allowed to function properly — that is, when imperiled species are promptly listed, critical habitat is designated, recovery plans are adopted, federal agencies obey the command to avoid jeopardizing species, and non-federal parties obtain permits to mitigate the “take” of species through habitat conservation plans and other mechanisms — there is widespread agreement that the pace of recovery is too slow. The law has too few tools to deal with the backlog of species that are candidates for listing, let alone deal with the surpassing threats posed by climate change.

Critics of the ESA claim that it has a poor record of recovering species. In fact it has saved some very high-profile animals from almost certain extinction, including the whooping crane, California condor, black footed ferret, and Santa Catalina fox. The reintroduction of the gray wolf to the Yellowstone ecosystem is one of the most dramatic conservation achievements in history. The fact that 99 percent of the listed species are still alive with a chance to survive is remarkable given the massive loss of habitat most have suffered.

The rap on the ESA is that it is all stick and no carrot. In truth there are dozens of landowner-friendly policies under the act — safe harbors, no-surprises agreements, habitat conservation plans, conservation banks, candidate conservation agreements, and tax credits, just to name a few. More incentives would certainly be welcome, and there is no shortage of ideas, but that requires a dedicated funding source, which is not part of the current debate in Congress. Draft legislation to “modernize” the ESA is but the latest attempt to weaken the law by handing over responsibility to states, shielding delisting decisions from judicial review, and burdening the already underfunded and beleaguered federal wildlife agencies with new deadlines, paperwork, and other requirements.

We need fresh approaches, informed by science, inspired by the successes to date, and grounded in the reality that the fate of humanity is tied to the fate of our fellow travelers on Spaceship Earth.

Dealing With Our Own Species to Stop Genetic Loss
William Magnusson - Brazilian National Institute for Amazonian Research
Brazilian National Institute for Amazonian Research
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I do not believe that the biodiversity crisis, or for that matter climate change, is an existential threat to humanity. And I say that as someone who loves biodiversity, has spent much of his life studying it and engages in hot battles to conserve what is left of it. There is likely to be some level of biodiversity below which humans cannot survive, but we have no idea what that is, and attempts to say we do just puts us into the realm of fake news.

This brings us back to the question of why we value biodiversity. Saying that it is because we are in imminent danger of extinction, as well as being human centric, makes us vulnerable to those who can present contrary arguments. In 1500, any thoughtful person armed with the facts would have come to the conclusion that humans could not withstand the loss of over 90 percent of the large terrestrial wild vertebrates, but we did. Obviously, something was lost, but it was not the potential for human life or civilization.

Survival in an extremely bio-uniform world is obviously possible, but the question is whether that is what we want. Most conservationists value biodiversity for spiritual or aesthetic reasons, and only a handful are engaged in the fight because they are trying to save humanity, though that is the argument that most present to the general public. If we want to participate in the debate, let’s be honest.

There are lots of reasons to value biodiversity, but the one that appeals most to me is that it enhances the potential for evolution and we are a product of evolution. Sometimes we say that human progress is likely to depend on products or processes we can extract from biodiversity, but we are generally talking about domesticating micro-organisms and not borrowing genes from whales. Micro-organisms hold the greatest amount of biomass and genetic material on the planet, and contrary to mammals and birds, most of that biomass is not domesticated.

For whatever the reason, humans value biodiversity and have enacted laws or adopted practices to conserve it throughout the world. These have obviously been resoundingly ineffective and, rather than imagine that some new law based on a general fear of the extinction of humans due to biodiversity loss will be more effective, it would be better to investigate why the present laws have not worked.

Homo sapiens is a colonizing species. This is an almost direct consequence of the capacity of members of the species to contemplate new opportunities. At first we colonized new lands, but as they became exhausted we started to colonize new dimensions. Each new specialization that developed opened new frontiers for those who were better endowed intellectually and had sufficient courage.

Many of those that had the sensibility to conquer new frontiers also had the perspicacity to see that resources were dwindling and to propose rules of law to protect those resources. The law of supply and demand ensures that the value of a resource increases with its rarity, but protection by the law moves the resource from the private to the public sector and the tragedy of the commons means a common resource is difficult to protect.

Why should some sectors want to exploit a resource to extinction? The simple answer is that those sectors can see no alternative. People with the ingenuity to exploit new frontiers can often see the value in protecting a dwindling resource. Entrepreneurs such as Bill Gates often spend much time and money to protect biodiversity. But not everyone can recognize the new frontiers that are opening up, or have the courage to colonize them.

Up until the last couple of centuries, most of the frontiers were related to biodiversity exploitation, and much of the world’s population became rich exploiting them. They successfully enacted laws to protect what was left, but two groups were left behind. In the process of colonization, the local people were often not respected and not provided with adequate education, and the only frontier they can see is that which was colonized by their oppressors. The route to conservation is to provide them with the education to see the opportunities that reside in biodiversity that are not related to its reduction.

The other group that got left behind is composed of the populist politicians that lack the educational or intellectual capacity to see the new frontiers. Some of these are rich and powerful by heredity or luck. As they cannot see the potential in the new frontiers, they continue to try to exploit the resources that made their ancestors rich, and sell that route to riches to an uneducated electorate.

Some of those politicians become richer, but none of their voters do. Laws cannot contain the destruction when the perpetrators are among the lawmakers.

Law enforcement is important, but cannot be the whole story. In Brazil, where I work, a positive development is the Program for Biodiversity Research (PPBio), which I help coordinate in western Amazonia. It was created by the federal government to fill the gap between local needs and national obligations. The first phase created regional hubs with committees constituted by representatives of all local stakeholders. The hubs are linked in a multidisciplinary network that defines priorities for capacity building. This ensures that research and management is not divorced from the needs and aspirations of the local people. PPBio is a good first step.

Making Species Worth More Alive Than Dead
Frank Hawkins - IUCN North America Office
IUCN North America Office
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Looking at global biodiversity collapse from where I started, in western Madagascar, and from where I am now, in Washington, D.C., the reasons for the loss of species are the same. People convert biodiversity to cash, knowingly or unknowingly, directly or indirectly.

Poor people in Madagascar have no other option but to cut forest for land to plant subsistence or cash crops, using the trees as a nutrient burst for the crop. In the western world, people unknowingly pay companies money for goods that are produced on land cleared of primary rainforest. Both cases are leading to the loss of fabulously rich and complex ecological systems. The end result is the same: we are facing a mass extinction event the equal of anything since the end of the Cretaceous, when a comet or meteor slammed into our planet, wiping out the dinosaurs and the majority of other species.

The solution to the present crisis is that the Earth’s great examples of ecology need to be worth more as ecosystems than as cash — and by worth I mean of both financial and spiritual character. For the Malagasy farmers of Madagascar, that means the opportunity to participate in an economic system that brings them much better long-term prospects than the gut-wrenching insecurity of moving from patch to patch every year to cultivate subsistence or local-market goods. For the American consumer, it means knowing that the palm oil in her bag of Chips Ahoy was produced without the loss of orangutans and their habitat, or any other form of Bornean biology.

So how can we make that happen? It’s a matter of managing risk. The Malagasy farmer is faced with huge risks, most of them caused by governance issues — over land tenure and over the ability to negotiate fair deals in contracts. The cookie manufacturer needs to be acutely aware of the risk to biodiversity it is causing by supporting the destruction of rainforests.

For companies, most of this risk is currently reputational— they suffer if they can be portrayed as badly behaved by consumer groups. This can have generally short-term impacts on company behavior, since they quietly find ways to manage this very adeptly. So in order to be effective in reducing biodiversity loss, the downside to companies of destroying biodiversity needs to be backed with teeth— legal and financial teeth.

A big opportunity to produce this kind of behavior— one that lies a little way in the future — is to associate the impacts of producers on biodiversity with the behavior of consumers through something that bears the weighty name of Environmentally Extended Input-Output Analysis. This way, the impact of the coffee produced in Ghana can be traced all the way to all the countries that buy and consume it, thus enabling us to pass some of the costs of mitigating ecosystem impacts directly to consumers, perhaps in the form of a tax. The politics of how these cost transfers can happen still needs working through, but at least producers and consumers won’t be able to say they don’t know what the impacts of the production are any more, at least in financial terms.

The opportunity side of the equation is starting to take off. Around $300-400 billion is needed globally on an annual basis to sustain biodiversity. Only about a tenth of this can be expected to come from public finance. The rest has to come from private investment. However, investing in conservation is tricky — risks of failure are high, returns are unpredictable, deals are currently rather small.

So here’s a great opportunity for some policy gain. If governments were to use their public money to create conditions for private finance to flow to conservation deals that make money, we’d be solving the Malagasy farmer’s problem and able to create economic opportunity driven by demand from informed consumers. The conditions that are needed include capacity building to improve governance and knowledge of deal development in the countries that need it most — and as I can swear, Madagascar is a really good example — and lots of risk finance that can draw in private investors.

Investment in nature can come in many forms. Examples include support to sustainable agriculture like palm oil that protects orangutans, investments in coral reefs and mangroves that provide carbon sequestration, food, and storm surge protection, deploying upstream green infrastructure to deliver water to downstream users, and many others.

It’s largely a matter of seeing a revenue stream — reduced insurance payments? eco-certification? avoided deforestation credits? reduced sedimentation risk for farmers? ecotourism revenue? — and bundling these streams into investable vehicles that the rather indolent and risk-averse finance world will buy. Indeed, the non-indolent and non-risk averse members of that group are already doing this, and successful models are being standardized, replicated, and aggregated in these sectors.

There are already dozens of these kinds of deals. But we need tens of thousands of deals, of an immensely greater value, in order to deliver the scale of investment in nature that will be needed to sustain the planet while lifting the lot of the Malagasy and the billion or more poor people to participate in sustainable local, regional, and global economies.

Saving the Services to Humanity of Biology's Richness
Rodolfo Dirzo - Stanford University
Stanford University
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The Earth’s majestic terrestrial and marine ecosystems, together with their climatic envelopes, geological substrates, and the processes and products resulting from their functioning, represent humanity’s life-support systems. Their precious roles include capturing carbon dioxide, releasing oxygen, supplying food and drinkable water, controlling soil erosion, regulating pests, recycling wastes, and providing inspiration through the wonders of our natural home.

These services are, essentially, the result of about 4 billion years of relentless organic evolution — so relentless, in fact, that it has overwhelmed the occurrence of five major pulses of biological extinction that occurred over the last 550 million years. Extraordinarily, never in the history of life has the planet accumulated more biological diversity than in the present times — when we humans are also present.

Ironically, despite the current pinnacle of biodiversity, humanity since the industrial revolution, but most notably in the last few decades, has become a formidable force of environmental change and a formidable threat to the life forms and life-support systems upon which all depend.

The global community of scientists who study the interaction of humanity with the rest of the biosphere has helped us understand the trajectory of key impacts on the planet. We now have clear evidence that Homo sapiens is causing the strongest, fastest climatic disruption since modern people evolved. At the same time, we have driven a massive deterioration of terrestrial and marine habitats, while maintaining a steep overexploitation of their resources. Furthermore, science has also documented increasing levels of toxic pollution correlated with human activity, which further poison species.

We now see increasing evidence of the most critical, truly irreversible global environmental change: massive biological extinctions of local populations and species, preluded by steep declines of the abundance of plants and animals. Not only the large and charismatic animal species are dying off, but invertebrates too, including many beneficial insects. The most significant drivers of these affronts to nature are the unprecedented growth of the human population and excessive resource consumption in the richer countries.

Each one of these anthropogenic impacts has profound consequences when analyzed separately, yet it is their compounded, synergistic effects that place humanity’s life support systems on the verge of a critical tipping point — an abrupt shift in biodiversity, ecological structure, and ecosystem functioning that would imperil all life. The effects result is an acceleration of the chances of crossing critical thresholds, leading to irreversible change within a few decades while fueling mounting international conflict.

When multiple global pressures combine, ecosystem changes occur more unexpectedly, faster, and more intensely than what would be predicted from considering each impact separately. The crossing of tipping points leading to different ecological settings has been documented at a variety of temporal and spatial scales. Some tipping points in the past have been of profound and global impact and, yet, life recuperated afterward — in a manner of speaking.

Let us consider the case of the massive extinction of 250 million years ago, when natural global changes brought about the demise of the majority of species. Although one might say the flora and fauna were able to recover, it took tens of million years for ecosystems to reach comparable levels of diversity, and for life-support systems to reach a new, relatively stable ecological state.

The last massive global extinction permitted the demise of the dinosaurs, some 65 million years ago, along with most other species then living on the planet. While biological recovery did in fact ensue, once more it took millions of years — and the resulting diversity was very different from that of the pre-extinction global ecosystem.

While post-tipping point recoveries can and do occur, this is of no consolation from the perspective of today’s interdependent global civilization. There is no way society could wait even ten years for nature’s depleted services to be restored, let alone ten million.

If action is not immediately undertaken to change the current path, we can conclude that humanity’s quality of life will suffer substantial degradation within a few decades. Therefore, it is essential that, beyond the scientific community, society at large — the general public and governments at all levels — gains a deeper understanding and develops a recognition of the urgency of the predicament we all face.

Policymakers will need to implement solutions that drive social change. Scientific knowledge and technological capacity are not the limiting factors; we are limited, rather, by personal attitudes and priorities. We need systematic education explaining how human wellbeing depends on environmental life-support systems, emphasizing the pressing need to cease the abuse of these systems and resources. Should we commit to curve the trajectory of the Anthropocene Era, it is our youth who will be safer when they reach maturity and find a planet with the same biological treasures we have enjoyed ourselves.

Global Biodiversity Is Falling Fast, Imperiling Humanity. Can Better Policy Avert a Collapse?
Rodolfo Dirzo - Stanford University
Frank Hawkins - IUCN North America Office
William Magnusson - Brazilian National Institute for Amazonian Research
Patrick Parenteau - Vermont Law School
Stanford University
IUCN North America Office
Brazilian National Institute for Amazonian Research
Vermont Law School
Current Issue
Global Biodiversity Is Falling Fast, Imperiling Humanity. Can Better Policy Aver

The South China tiger, the passenger pigeon, and chestnut ermine moth are extinct. The Florida yew, Sumatran rhinoceros, and North American right whales are critically endangered. And it is not just a few scattered species. Stunningly, at least half the global insect and phytoplankton biomass is now gone. Remarkably, about 96 percent of the total mammalian biomass on Earth is now humans and domestic mammals, and roughly 75 percent of the total bird biomass is domestic fowl. It is truly the age of the Anthropocene.

The tropical rainforests of South America, Southeast Asia, and equatorial Africa — the three main hotspots of terrestrial biodiversity, together treasuring a storehouse of genetic information and serving as key components of the terrestrial biosphere — have been decimated. Much of the natural habitat that remains is cut through with roads, dwellings, and larger buildings, and every imaginable sort of resource extraction activity.

Meanwhile, the challenges mount as the seas rise, invading coastal ecosystems; ocean waters become more acidic and inhospitable to many marine denizens; and terrestrial climate zones migrate toward the poles faster than their established ecosystems can keep up.

In apparent contradiction to the dire condition of biodiversity on the ground, there appears to be a robust legal regime to protect biodiversity, including the U.S. Endangered Species Act and similar legislation in many other countries. The world community has established the international CITES accord to limit trade of endangered organisms and formed the Convention on Biological Diversity. Beyond the statutory and treaty regime, one can point to substantial parks and other means of protecting natural habitats. Efforts to protect biodiversity include work by governments, businesses, and NGOs and are themselves quite diverse — debt-for-nature swaps being a prime example.

Yet somehow, that legal regime and protection efforts have been grossly ineffective. Upgrading these measures to meet the extent of the threat is in order. Our expert panel looks at the difficult issues involved in saving the global environment from biodiversity collapse.

At least half of global insect and phytoplankton biomass is now gone. The tropical rainforests, a storehouse of genetic information and serving as key components of the terrestrial biosphere, have been decimated. Meanwhile, the challenges mount as the seas rise, invading coastal ecosystems; ocean waters become more acidic and inhospitable to many marine denizens; and the land warms faster than nature can cope. The robust international legal regime to protect species and habitat is failing. Can improved policy save the global ecosystem?

Crisis of Phytoplankton and Insects Ushers in Age of Resource Conflict
Craig M. Pease - Scientist and Law Professor
Scientist and Law Professor
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Craig M. Pease

The Endangered Species Act is one of the strongest federal environmental statutes. It elevates conservation over economics and requires key decisions to be made based solely on the best available science. Yet its words matter only to the extent they protect real living organisms. By that metric, our entire legal regime to protect biodiversity has completely and utterly failed.

Science now bears witness to a global collapse of phytoplankton, the basis of aquatic food chains, and insects, a key element of terrestrial food chains. A huge fraction of their global population is now gone; see Daniel Boyce and colleagues’ 2010 article in Nature and Rudolfo Dirzo and colleagues’ 2014 Science paper, showing a very roughly 1 percent annual loss of phytoplankton and insect biomass, going back many decades. Compounded, a loss of that seemingly small amount results in a loss of 40 percent over the nearly half a century since the ESA was passed.

More recently, Jeffery McQuaid and colleagues’ Nature paper investigates phytoplankton decline and shows it is caused by increasing atmospheric carbon dioxide. Similarly, Bradford Lister and Andres Garcia’s recent Proceedings of the National Academy of Sciences paper documents dramatic loss of insects over several decades in a tropical rain forest, also tying the decline to climate change.

This is a catastrophic collapse of global food webs. A scientist walking into a natural habitat most anywhere on Earth now sees something akin to a grocery store with shelf after shelf empty. As a biologist who has spent a fair amount of time in nature, I weep.

To match the new reality of the Earth’s natural resources, the whole approach of environmental law will have to change. The Endangered Species Act in the United States and international wildlife treaties were simply not adequate to prevent this collapse in food webs.

The very structure of Earth’s natural resources, and their relation to human society, are today qualitatively different than they were only a half century ago, when modern environmental law was born. I recall as a child seeing a six foot sturgeon taken from the Sacramento River, now depauperate and controlled, having been mustered into the service of providing water to California’s 40 million citizens.

Back then, environmental problems tended to be isolated to a specific location, and had a handful of identifiable causes. Yet over the past 50 years, human population, energy use, and economic activity have continued to grow exponentially, causing phytoplankton, insects and natural ecosystems generally to shrink. Not surprisingly, over this period the production of grains, a key element of human food webs, also increased exponentially.

What little remains of natural resources has become embedded in an immense snarl of human society and economic activity. Humans now dominate nature; see Peter Vitousek and colleagues’ 1997 Science paper, and the immense technical literature it has spawned. We have transitioned from a world where humans were scarce and nature dominated to one where nature is now becoming ever more scarce.

In describing resource seeking, ecologists distinguish between contest competition and scramble competition. Contest competition is often highly ritualized, and results in the winner getting complete control of the resource, as in sage grouse leks. Contest competition requires a stable and predictable resource, and it is typically mediated by hierarchies and other social structures. By contrast, scramble competition is a free-for-all, where each participant just grabs what they can, like buzzards feeding on a carcass.

Environmental law currently on the books, and as taught to our students, is most entirely contest competition — the law is but a complicated system of ritual combat, fought not with fancy feathers and strutting, but with words and arcane procedure, mediated by a highly hierarchal social structure.

We have now entered a new and different world. The phytoplankton, insects and natural world generally were formerly a stable, predictable, and abundant source of natural capital for human society, and hence a suitable subject for contest competition. Yet in the last half century, the Earth’s natural resources have suffered catastrophic losses. They have become ever smaller in extent, and less stable and less predictable, especially in comparison to ever growing human needs.

If environmental law is to remain relevant, it will have to transition from its current focus on management and regulation of predictable and generally abundant natural resources to resolution of conflicts over an increasingly scarce, chaotic, and ever dwindling nature.

As a biologist, I weep. The loss of species in my lifetime is incomprehensible.

Crisis of phytoplankton and insects ushers in age of resource conflict.