Robin Kundis Craig

The End of Sustainability

It is time to move past the concept of sustainability. The realities of the Anthropocene warrant this conclusion. They include unprecedented and irreversible rates of human-induced biodiversity loss, exponential increases in per-capita resource consumption, and global climate change. These factors combine to create an increasing likelihood of rapid, nonlinear, social and ecological regime changes. The recent failure of the Rio + 20 provides an opportunity to collectively reexamine—and ultimately move past—the concept of sustainability as an environmental goal. We must face the impossibility of defining—let alone pursuing—a goal of “sustainability” in a world characterized by such extreme complexity, radical uncertainty and lack of stationarity. After briefly examining sustainabilitys failure, we propose resilience thinking as one possible new orientation and point to the challenges associated with translating resilience theory into policy application.

A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust

This companion article to the Fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines - emphasis on the plural - in the 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common law. Moreover, as with other forms of common law, states have evolved their public trust doctrines in light of the particular histories, perceived needs, and perceived problems of each state. This Article notes that, in the West, four factors have been most important in the evolution of state public trust doctrines: (1) the severing of water rights from real property ownership and the riparian rights doctrine; (2) subsequent state declarations of public ownership of fresh water; (3) clear and explicit perceptions of shortages of water, submerged lands, and environmental amenities; and (4) a willingness to raise water and other environmental issues to constitutional status and/or to incorporate broad public trust mandates into statutes. From these factors, two important trends in western states’ public trust doctrines have emerged: (1) the extension of public rights based on states’ ownership of the water itself; and (2) an increasing, and still cutting-edge, expansion of public trust concepts into ecological public trust doctrines that are increasingly protecting species, ecosystems and the public values that they provide. The Article includes an extensive Appendix that summarizes each of the 19 states’ public trust doctrines. These summaries include relevant constitutional provisions, statutory provisions, and cases.

Regime shifts and panarchies in regional scale social-ecological water systems

In this article we summarize histories of nonlinear, complex interactions among societal, legal, and ecosystem dynamics in six North American water basins, as they respond to changing climate. These case studies were chosen to explore the conditions for emergence of adaptive governance in heavily regulated and developed social-ecological systems nested within a hierarchical governmental system. We summarize resilience assessments conducted in each system to provide a synthesis and reference by the other articles in this special feature. We also present a general framework used to evaluate the interactions between society and ecosystem regimes and the governance regimes chosen to mediate those interactions. The case studies show different ways that adaptive governance may be triggered, facilitated, or constrained by ecological and/or legal processes. The resilience assessments indicate that complex interactions among the governance and ecosystem components of these systems can produce different trajectories, which include patterns of (a) development and stabilization, (b) cycles of crisis and recovery, which includes lurches in adaptation and learning, and (3) periods of innovation, novelty, and transformation. Exploration of cross scale (Panarchy) interactions among levels and sectors of government and society illustrate that they may constrain development trajectories, but may also provide stability during crisis or innovation at smaller scales; create crises, but may also facilitate recovery; and constrain system transformation, but may also provide windows of opportunity in which transformation, and the resources to accomplish it, may occur. The framework is the starting point for our exploration of how law might play a role in enhancing the capacity of social-ecological systems to adapt to climate change.

Taking the Long View of Ocean Ecosystems: Historical Science, Marine Restoration, and the Oceans Act of 2000

This article discusses means for restoring ocean biodiversity in light of recent science arguments that marine species are already severely depleted compared to historical levels. Using the Oceans Act of 2000 as the impetus for legal reform, the article assesses the weaknesses in the current United States regimes for regulating ocean resources and argues that increased attention must be paid to preservation of marine wilderness through marine protected areas.

Does the Endangered Species Act Preempt State Water Law

In March 2013, in The Aransas Project v. Shaw, the U.S. District Court for the Southern District of Texas announced, almost in passing, that the federal Endangered Species Act (“ESA”) preempts state water law and the exercise of state water rights. As a result, the court concluded that the Texas Commission on Environmental Quality had effectuated a “taking” of ESA-listed whooping cranes as a result of state-permitted diversions of fresh water. This case is currently on review before the U.S. Court of Appeals for the Fifth Circuit, but it raises a question likely to be increasingly important for both aquatic species and water users: When, and to what extent, does the federal ESA preempt state water law, including the exercise of state-created water rights? This Article examines that question in much more detail than the Southern District of Texas did. It begins by examining the plethora of water systems in the United States that are already subject to ESA controversies as a result, at least in part, of water management decisions and water rights. For a variety of reasons, including both population dynamics and climate change, the number of such systems is increasing, and conflicts between the ESA and state water law are only likely to escalate in the future. In Part II, this Article reviews the basic jurisprudence of federal preemption, outlining the three ways in which federal law can preempt state law — express, implied, and conflict preemption. Finally, Part III examines how these three types of preemption play out through the ESA. The Article concludes that the ESA is unlikely to either expressly or implicitly preempt state water law in most circumstances, but that conflict preemption is likely to play an increasingly bigger role in ESA-water law jurisprudence, making The Aransas Project v. Shaw a harbinger of water rights litigation to come.

Climate Change and the Puget Sound: Building the Legal Framework for Adaptation

The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century. The need to adapt to this new future is crucial. Adaptation may take a variety of forms, from implementing certain natural resources management strategies to applying principles of water law to mimic the natural water cycle. The goal of adaptation efforts is to lessen the magnitude of these impacts on humans and the natural environment through proactive and planned actions. The longer we wait to adopt a framework and laws for adapting to climate change, the more costly and painful the process will become.This publication identifies both foundational principles and specific strategies for climate change adaptation across the Puget Sound Basin. The projected impacts themselves of climate change in the region were well studied in a landmark 2009 report by the state-commissioned Climate Impacts Group. This publication analyzes adaptation options within the existing legal and regulatory framework in Washington. Recognizing the economic and political realities may not lead to new legislation, the recommendations focus on how existing laws can be applied and made more robust to include climate change adaptation.

Coastal adaptation, government-subsidized insurance, and perverse incentives to stay

The law should be a critical tool in promoting and directing climate change adaptation in the USA. This should be particularly true in the nation’s extensive coastal zone, much of which is subject to increasing rates of sea level rise, coastal erosion, increasing numbers of increasingly powerful storms, and saltwater intrusion. However, significant coastal infrastructure hampers many coastal adaptation strategies by making retreat both expensive and politically unpalatable. This article examines the specific role of insurance and other financing programs in coastal adaptation strategies. Insurance operates primarily to mitigate risk. The article focuses specifically on the National Flood Insurance Program (NFIP), which is now driven by coastal catastrophes and is close to bankruptcy; Florida’s decision to provide state-financed insurance to coastal property owners in the wake of the 2004–2005 hurricane season; and, conversely, the decisions of other states to use state and federal financing instead to facilitate coastal adaptation, including buyouts of transitioning coastal properties.

Cross-interdisciplinary insights into adaptive governance and resilience

The Adaptive Water Governance project is an interdisciplinary collaborative synthesis project aimed at identifying the features of adaptive governance in complex social-ecological institutional systems to manage for water-basin resilience. We conducted a systematic qualitative meta-analysis of the project’s first set of published interdisciplinary studies, six North American basin resilience assessments. We sought to develop new knowledge that transcends each study, concerning two categories of variables: (1) the drivers of change in complex water-basin systems that affect systemic resilience; and (2) the features of adaptive governance. We have identified the pervasive themes, concepts, and variables of the systemic-change drivers and adaptive-governance features from these six interdisciplinary texts using qualitative methods of inductive textual analysis and synthesis. We produced synthesis frameworks for understanding the patterns that emerged from the basin assessment texts, as well as comprehensive lists of the variables that these studies uniformly or nearly uniformly addressed. These study results are cross-interdisciplinary in the sense that they identify patterns and knowledge that transcend several diverse interdisciplinary studies. These relevant and potentially generalizable insights form a foundation for future research on the dynamics of complex social-ecological institutional systems and how they could be governed adaptively.

Fishers, Divers, Scientists, Lawyers, and Marine Protected Areas: The U.S. Experience in Protecting Coral Reefs

Coral reef tourism in the US provides significant economic benefits that exceed those of reef-based commercial and recreational fisheries. While US coral reefs are subject to a number of stressors, fishing has created the most opposition to coral reef protection. One solution is increased use of coral reef marine protected areas (MPAs), which could simultaneously improve reef-based fisheries. US law provides a number of mechanisms for creating MPAs but contains no clear policy in favor of coral reef preservation. Nevertheless, a tension between fishing and coral reef ecosystem protection has been emerging in US law, indicating that federal law should be modified to promote coral reef ecosystem preservation.

Finding Flexibility in Section 7 of the Endangered Species Act Through Adaptive Governance

The US Endangered Species Act (ESA) prohibits federal agency actions likely to jeopardize listed species or adversely modify critical habitat. Scholarship on the application of the ESA characterizes the process as unwaveringly rigid, a legal “hammer.” This chapter draws on lessons derived from applying the ESA in the Klamath Basin along the Oregon-California border, where an integrated implementation strategy lessened rigidities and barriers to change. Collaboration among leaders in the US Fish and Wildlife Service, the National Marine Fisheries Service, and the US Bureau of Reclamation supported efforts to replace an ecologically and socially fragmented approach to ESA implementation that was fraught with conflict with a more adaptive, flexible, integrated approach to water sharing among competing interests. Keys to success included existing collaborative capacity related to improved tribal-irrigator relations and a shift in local agency culture facilitated by empathic leadership which led to a greater sense of shared responsibility for ESA compliance. This effort exemplifies governmental adaptive capacity for flexibility and evolution within constraints of formal law. A truly bioregional approach to endangered species recovery, however, will necessitate greater integration between federal and nonfederal activities.