Ecologically Related Management Tools
The past 30 years have evidenced some dramatic changes in the study of natural systems. During this period, the field of ecology has come into its own and the new fields of conservation biology and ecosystem management have been born. Moreover, unprecedented developments in our understanding of natural systems have occurred. Our once-accepted view of the “balance of nature” has been challenged, and we now are beginning to see nature as considerably more complex and dynamic than we once believed it to be.1 Accordingly, environmental decision makers must accept, and incorporate into their decision making, the continually changing nature of ecosystems.2
A relatively new applied scientific discipline, “conservation biology,” has emerged to attempt to address the complex relationship between human activities and the protection of ecological systems. The emergence in the mid-1980s of the field of conservation biology has led to novel ways of viewing environmental regulation and natural resources management. Conservation biology has been defined by one of its founders as “a new stage in the application of science to conservation problems, [which] addresses the biology of species, communities, and ecosystems that are perturbed, either directly or indirectly, by human activities or other agents. Its goal is to provide principles and tools for preserving biological diversity.”3 Conservation biology arose in the late 1970s and early 1980s as a reaction to the unprecedented worldwide extinction crisis that many biologists believe is occurring due to the activities of humans.4 Accordingly, conservation biology is considered to be an applied “crisis” discipline: it is to biology what surgery is to physiology.5 The driving force behind conservation biology is the conviction that, without serious efforts to reverse the trend of mass extinctions, millions of species may be at risk of extinction.6 The loss of species may have devastating consequences for humans, as well as for the planet as a whole.7 Due to the permanence of extinction, rare species are often the focus of conservation biology.8
Although conservation biology is still considered a relatively young and not well-defined science, certain postulates have been proposed. Soule divides these postulates into two categories: (1) functional postulates; and (2) ethical or normative postulates.9 He describes the functional postulates as a set of fundamental rules gleaned from basic sciences, including ecology, that are geared toward the maintenance of both the form and function of natural biological systems.10 Perhaps most pertinent for legal analysis are Soule’s ethical or normative postulates, which can be utilized as a fundamental ecological baseline for an environmental management or regulatory system: (1) biological diversity is good; and (2) ecological complexity is good.11
To date, most of the law and policy initiatives pertaining to biodiversity protection have been focused on deciding which lands to preserve based on their diversity, uniqueness, connectivity to other lands, or other factors. While the importance to biodiversity of preserving significant lands cannot be overstated, such preservation would be in vain if steps are not taken to address the contamination of air, water and land, both inside and outside of preserved areas. Environmental pollution is the most subtle form of ecological degradation, and despite the banning of numerous pesticides over the past 30 years, pesticide pollution remains one the most serious forms of ecological degradation.12 No matter how strictly protected an area is from human activity, it will never be truly protected if contaminants such as pesticides enter the area through the water or air, or if species that use the area are exposed to harmful contaminants whenever they leave the confines of the protected area.
Although the primary threat to species and ecosystem diversity is habitat destruction, even when habitats are preserved, many populations have been reduced in size to such an extent that they are extremely vulnerable to other environmental stresses, such as hazardous pollutants.13 Moreover, the vast majority of land in the in United States is in private ownership, and it would be naive to believe that enough property could be put into perpetual preservation to achieve true ecological integrity on a large scale. Thus, it is necessary to complement land preservation programs with effective regulatory programs that ensure a level of protection of widespread ecological integrity while allowing human activities to proceed. Although some legal scholars have analyzed environmental law in a general sense from a conservation biology perspective,14 to date, the attempts that have been made to evaluate specific management or regulatory schemes using such an approach have focused primarily on natural resources management or the Endangered Species Act (ESA),15 rather than pesticide law or pollution control law, more generally.
Another important ecological concept is that of ecosystem management. It has been said that conservation biology leads to ecosystem management. In other words, ecosystem management is a tool to carry out the principles of conservation biology. Although environmental literature is rife with varying descriptions and definitions of ecosystem management, there appears to be general consensus that the overriding goal of ecosystem management is to protect ecological integrity over the long term.16 Ecological integrity has been defined as the total native diversity of species, populations, and ecosystems, and the ecological patterns and processes that maintain such diversity.17
The protection of ecosystem18 diversity is crucial to the maintenance of overall ecological integrity. Ecosystems themselves provide numerous services, some of which are easily quantifiable, and others of which are not. As Professor Laura Westra has stated “[h]uman survival depends on many of nature’s ‘goods and services’ that are invisible to markets and the economy; some are no doubt invisible to scientists.”19 One example of an ecosystem service is a wetland (a type of ecosystem) serving as a filter to treat water supplies.20 Other examples include beach dunes buffering upland properties from the effects of storms, and saltmarshes supporting fisheries, air purification, soil renewal, climate stabilization, and crop pollination.21 In the pest management arena, natural enemies of pest species, including predators, parasites, and diseases of pests, provide the important ecosystem service of keeping pest populations in check. Natural resource economists have identified numerous ecosystem services that, if humans had to replace them, would be extremely expensive, if not technically infeasible. Of course, as with individual species, our lack of understanding of the workings of these complex systems leaves open the very likely possibility that ecosystems perform many other valuable services that we do not yet fully understand or that we are not yet able to quantify.
The adaptive management concept originated from the works of C.S. Holling and Carl Walters in 1978 and 1986 respectively,22 but it can be traced back to Charles Lindblom’s article The Science of “Muddling Through” published in 1959.23 Holling incorporated the concept of resilience into policy design as an alternative to environmental assessment,24 which he found to be a “reactive approach” that “will inhibit laudable economic enterprises as well as violate critical environmental constraints.”25 Holling described adaptive management as “integrat[ing] environmental with economic and social understanding at the very beginning of the process, in a sequence of steps during the design phase and after implementation.”26
Walters described adaptive management as a way to deal with scientific uncertainty when managing renewable resources, especially since resource managers had begun relying on quantitative modeling as a tool to predict responses to alternative harvesting policies.27 According to Walters, renewable resource scientists had failed by not putting greater emphasis on socioeconomic dynamics in their research and management, and in their approach to dealing with scientific uncertainty.28 Instead of cautiously regulating harvests while seeking better understanding through more and more detailed analyses, Walters suggested using an adaptive management process “where management activities themselves are viewed as the primary tools for experimentation.”29
The need for an adaptive approach to management became apparent in light of new understanding of ecosystems as dynamic, rather than as having only one equilibrium state.30 Since then, government agencies have been trying to account for the disparity between science and environmental law and formulate a system that can adjust to confront scientific uncertainty.31 Environmental regulation that can provide “feedback loops to update regulatory efforts as information increases” is counterintuitive to the American legal system.32 Thus, adaptive management has not been seriously incorporated into environmental law.33
Environmental law often requires that regulation be based upon the “best available science,” which is a principle of ecosystem management.34 According to J.B. Ruhl, “[e]cosystem management is exactly what it sounds like—managing ecosystem-level problems through ecosystem-level approaches—and it almost always calls for creative and adaptive use of policy instruments as varied as inflexible commands at one extreme to generous incentives at the other.”35 Adaptive management, also a principle of ecosystem management,36 has become increasingly synonymous with ecosystem management.37
In 1992, the National Research Council (NRC) conducted a study on the use of adaptive management for the restoration of aquatic ecosystems.38 The study is cited as an example of how legal academics view adaptive management in terms of how resource management should be conducted.39 The study suggests using the Adaptive Environmental Assessment (AEA) developed by C.S. Holling as an appropriate “process for involving scientists, resource managers, policy analysts, and decision makers interactively in designing resource management problems.”40 In formulating a National Restoration Strategy, the NRC established adaptive management as a principle for priority setting and decision making in the face of scientific uncertainty.41 The example used by NRC was Chesapeake Bay’s nutrient management strategy, in which the initial goal was set to reduce nutrient loading by 40 percent.42 The policy makers committed to a continuous study of the goal itself, as well as the cost and effectiveness of the chosen means. As a result, both the goals and approaches of the nutrient management strategy are subject to revision over time.43
Both the legal and scientific scholarly literature of the past several years is rife with calls for the increased use of adaptive management in a variety of environmental regulatory, management, and restoration contexts.44 Unfortunately, although numerous examples exist where resource agencies adopted adaptive management policies, at least in name, as part of a variety of environmental management and/or restoration projects, examples of successful adaptive management are hard to find.
The Relationship between Adaptive Management and Resilience
Adaptive management and ecological resilience are two sides of the same coin. Ecological resilience is necessary for adaptive management approaches to be viable. Adaptive management theory teaches us that environmental management and regulatory decisions are unavoidably based upon incomplete information. This imperfect information, coupled with the complexity and changes inherent in all ecosystems, suggests that ecological resilience is necessary to provide a cushion for humans to learn and adapt without risk of transforming a system into a different state.45 To allow for the experimentation and experiential learning that is required by adaptive management, a system must have sufficient resilience to be able to withstand the inevitable mistakes or unintended consequences that will manifest whenever we act in the absence of perfect knowledge.46
On the other side of the coin, adaptive management is an integral part of assuring that our environmental management decisions restore and/or maintain ecological resilience. In the past, many of our environmental management and regulatory decisions were based on the outdated notion that if we chose the “right” technology or the “right” ecological indicators, we could maintain an ecosystem in a steady state.47 We now know that there is no simple “right” answer and that attempts to maintain ecosystem stasis can cause its own set of environmental degradation. Ecosystems are complex and dynamic. The complexity and dynamic nature of ecosystems contributes to the resilience of ecosystems. Thus, to properly manage or restore an ecosystem, we must be certain that we do not intentionally or inadvertently dilute the complexity, or constrain the dynamic nature, of the system so as to reduce the ecological resilience of the ecosystem.
Both adaptive management and ecological resilience can play an important role in developing an ecologically based approach to pest management. As described above, the current dominant approach of relying on synthetic chemical controls to manage pests is antithetical to the concept of ecological resilience. A monoculture, almost by definition, is not resilient. Monocultures are vastly more susceptible to disease and pest outbreaks than more diverse systems. Moreover, broad-spectrum pesticides, by their very nature, eliminate or reduce the natural resilience of ecosystems. By killing predators and parasites, chemical controls eliminate the natural checks and balances that would otherwise keep pest populations from reaching infestation proportions. An agricultural system that is designed to be more ecologically resilient can eliminate or reduce the need for chemical controls and instead rely on and enhance the naturally occurring resilience features of the agricultural ecosystem.
Adaptive management approaches can help to ensure that pest management approaches are appropriately targeted to the specific agricultural system and the ecosystems surrounding it. Moreover, by employing adaptive management, we can improve pest management approaches and reduce environmental impacts as new or different information becomes available.
An important concept in developing ecologically based management or regulatory systems ecology is the idea of starting with an environmental baseline. Professor Daniel Farber, in his book Eco-Pragmatism,48 argues that there must be some overarching principle to help guide decision making and to serve as a “tie-breaker” in the close cases.49 Farber argues that the baseline should have a presumption in favor of the environment.50 However, Farber does not provide a comprehensive explanation of what the baseline should be. Ecological principles can be used to assist in developing an appropriate baseline.