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Environment law


Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes.

This effort to reform existing law or design new laws that incorporate the insights of ecology confronts a central tension. Scholars differ in their assessment of the key failures in existing law, depending on whether they approach the question from a legal or scientific perspective. Those focused on the legal dimension frequently see the unmet challenge as designing effective and enforceable conservation laws with clear objectives. They often see the central failure as inadequate or ineffective constraints on private actions that degrade or deplete our resources. On the other hand, those focused on the insights from science often point to the failure of legal regimes to provide agencies and land managers adequate flexibility to make scientifically sound decisions in light of our limited knowledge about the environment and the inevitability of change and surprises.

These different perspectives create a fundamental tension that cannot be easily or generically resolved. In order to benefit from the insights of both law and science, reform efforts must heed both perspectives. Taken together, the two perspectives call for legal regimes that are enforceable, achieve clear results, and yet permit flexibility in their implementation -- a seeming oxymoron. This Article explores whether, how, and to what extent these two goals can be reconciled. It employs a single example -- a proposal for a new federal statute -- to examine whether and how the tension can be addressed in the design of that particular statute.