J. B. Ruhl

Committing to ecological restoration

Efforts around the globe need legal and policy clarification At the September 2014 United Nations Climate Summit, governments rallied around an international agreement—the New York Declaration on Forests—that underscored restoration of degraded ecosystems as an auspicious solution to climate change. Ethiopia committed to restore more than one-sixth of its land. Uganda, the Democratic Republic of Congo, Guatemala, and Colombia pledged to restore huge areas within their borders. In total, parties committed to restore a staggering 350 million hectares by 2030.

The Tragedy of Ecosystem Services

ABSTRACT Derived from funds of natural capital, ecosystem services contribute greatly to human welfare, yet are rarely traded in markets. Most supporting (e.g., soil formation) and regulating (e.g., water purification, pest regulation) ecosystem services, and some cultural (e.g., aesthetic enrichment) and provisioning (e.g., capture fisheries, fuel wood) ecosystem services are declining because of a complex social trap, the “tragedy of ecosystem services,” which results in part from the overconsumption of common-pool resources. Additionally, current economic incentives encourage the development of funds of natural capital on private lands for marketable commodities at the expense of ecosystem services that benefit the public. Such ecosystem services are therefore underprovided. Most critically, property law reinforces these market failures by creating incentives to convert funds of natural capital into marketable goods and by assigning no property rights to ecosystem service benefits. Although there is no one pathway out of this tragedy of ecosystem services, potentially effective remedies lie in the evolution of the common law of property, in the reform of economic incentives, and in the development of ecosystem service districts.

Stacking ecosystem services

Ecosystem service markets are increasingly used as a policy solution to environmental problems ranging from endangered species to climate change. Such markets trade in ecosystem credits created at restoration sites where conservation projects are designed and built to compensate for regulated environmental impacts. “Credit stacking” occurs when multiple, spatially overlapping credits representing different ecosystem services are sold separately to compensate for different impacts. Discussion of stacking has grown rapidly over the past three years, and it will generate increasing interest given the growing multibillion-dollar international market in carbon, habitat, and water-quality credits. Because ecosystem functions at compensation sites are interdependent and integrated, stacking may result in net environmental losses. Unless stacked compensation sites and impact sites are treated symmetrically in the accounting of environmental gains and losses, stacking may also cause environmental gains at compensa...

Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State

This article is the first in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It builds the basic model of CAS and maps it onto legal systems, offering some suggestions for what it means in terms of legal institution and instrument design.

Panarchy and the Law

Panarchy theory focuses on improving theories of change in natural and social systems to improve the design of policy responses. Its central thesis is that successfully working with the dynamic forces of complex adaptive natural and social systems demands an active adaptive management regime that eschews optimization approaches that seek stability. This is a new approach to resources management, and yet no new theory of how to do things in environmental and natural resources management, particularly one challenging entrenched ways of doing things and the interests aligned around them, is likely to gain traction in practice if it cannot gain traction in the form of endorsement and implementation through specific laws and regulations. At some point, that bridge must be crossed or the enterprise of putting panarchy theory into panarchy practice will stall. Any effort to operationalize panarchy theory through law thus comes up against the mission of law to provide social stability and the nature of law itself as a complex adaptive system. To state the problem in another way, putting panarchy theory into practice will require adaptively managing the complex adaptive legal system to adaptively manage other complex adaptive natural and social systems, all in a way that maintains some level of social order. Panarchy theorists have yet to develop an agenda for doing so. It is time for lawyers to join the team.

Aligning restoration science and the law to sustain ecological infrastructure for the future

Ecological restoration as grounded in modern science is based on a systems perspective – it seeks to recover ecological systems characteristic of past or least-disturbed contemporary landscapes. This requires recovery of organisms along with the ecosystem features and dynamic processes that support them. Since self-sustainability is the goal, it also requires a landscape and environmental context that supports recovery of the system. As restoration becomes more widely practiced, so too are many specialized forms of environmental intervention, such as those associated with reducing the impacts of development, promoting recovery of endangered species, and achieving compensatory mitigation. These may be valuable and may also be informed by ecological science but they differ substantially from ecological restoration because they are not necessarily focused on recovery of a self-sustaining living system characteristic of past or least-disturbed landscapes. The US legal system has failed to make this distinctio...

Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed. Whether sprawl, climate change, or other daunting challenges, agencies are increasingly being told to address massive problems but without obvious tools or strategies to do so. In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship has assumed that massive problems are similar to one another, focusing instead on issues of jurisdiction and instrument choice - who should whittle and which knife they should use. In Part I we argue that the nature of the problem - the stick to be whittled - deserves equal attention. Some problems, because of the presence of certain types of cumulative effects from multiple sources, are significantly more difficult for agencies to manage. In Part II, using examples from the fields of environmental and land use law, we develop a model to identify the different attributes of cumulative effects that drive massive problems and how these can distort or undermine policy responses. In Part III we explore the three different strategies currently used in administrative law to manage massive problems, showing each to be deficient. In Part IV we draw from recent scholarship on Dynamic Federalism, New Governance, and Transgovernmental Network theories to propose an effective strategy for agencies to whittle away at massive problems through loosely-linked weak ties networks of federal, state, and local agencies. Part V illustrates how this can work in practice, using a case study of water pollution in the Gulf of Mexico. We explore both how such multi-scalar, multi-agency coordination networks function and the challenges they pose for administrative law. The Courts observation is quite correct - agencies, even when working together, can only whittle away at massive problems. This article takes the next step, creating models that explain the challenges posed by different types of massive problems and proposing strategies for engaging in more effective multi-agency coordination.

Judging adaptive management practices of U.S. agencies.

All U.S. federal agencies administering environmental laws purport to practice adaptive management (AM), but little is known about how they actually implement this conservation tool. A gap between the theory and practice of AM is revealed in judicial decisions reviewing agency adaptive management plans. We analyzed all U.S. federal court opinions published through 1 January 2015 to identify the agency AM practices courts found most deficient. The shortcomings included lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts around critical, iterative steps characterizes what we call AM-lite. Passive AM differs from active AM in its relative lack of management interventions through experimental strategies. In contrast, AM-lite is a distinctive form of passive AM that fails to provide for the iterative steps necessary to learn from management. Courts have developed a sophisticated understanding of AM and often offer instructive rather than merely critical opinions. The role of the judiciary is limited by agency discretion under U.S. administrative law. But courts have overturned some agency AM-lite practices and insisted on more rigorous analyses to ensure that the promised benefits of structured learning and fine-tuned management have a reasonable likelihood of occurring. Nonetheless, there remains a mismatch in U.S. administrative law between the flexibility demanded by adaptive management and the legal objectives of transparency, public participation, and finality.

Legal and institutional foundations of adaptive environmental governance

Legal and institutional structures fundamentally shape opportunities for adaptive governance of environmental resources at multiple ecological and societal scales. Properties of adaptive governance are widely studied. However, these studies have not resulted in consolidated frameworks for legal and institutional design, limiting our ability to promote adaptation and social-ecological resilience. We develop an overarching framework that describes the current and potential role of law in enabling adaptation. We apply this framework to different social-ecological settings, centers of activity, and scales, illustrating the multidimensional and polycentric nature of water governance. Adaptation typically emerges organically among multiple centers of agency and authority in society as a relatively self-organized or autonomous process marked by innovation, social learning, and political deliberation. This self-directed and emergent process is difficult to create in an exogenous, top-down fashion. However, traditional centers of authority may establish enabling conditions for adaptation using a suite of legal, economic, and democratic tools to legitimize and facilitate self-organization, coordination, and collaboration across scales. The principles outlined here provide preliminary legal and institutional foundations for adaptive environmental governance, which may inform institutional design and guide future scholarship.

Harnessing legal complexity

Bring tools of complexity science to bear on improving law Complexity science has spread from its origins in the physical sciences into biological and social sciences (1). Increasingly, the social sciences frame policy problems from the financial system to the food system as complex adaptive systems (CAS) and urge policy-makers to design legal solutions with CAS properties in mind. What is often poorly recognized in these initiatives is that legal systems are also complex adaptive systems (2). Just as it seems unwise to pursue regulatory measures while ignoring known CAS properties of the systems targeted for regulation, so too might failure to appreciate CAS qualities of legal systems yield policies founded upon unrealistic assumptions. Despite a long empirical studies tradition in law, there has been little use of complexity science. With few robust empirical studies of legal systems as CAS, researchers are left to gesture at seemingly evident assertions, with limited scientific support. We outline a research agenda to help fill this knowledge gap and advance practical applications.