*This is one of the papers printed in Richard L. Knight and Peter B. Landres, Stewardship Across Boundaries, Island Press, 1998, pages 87-110.


Laws and Institutions in Cross-Boundary Stewardship*

Errol E. Meidinger#

 

INTRODUCTION

Cross-boundary stewardship depends heavily on the legal and institutional context in which it is practiced. This chapter provides an overview of laws and institutions affecting cross-boundary stewardship in the United States. This first section states some general propositions about boundaries and stewardship. The next two sections describe the basic types of resource owners in American law and the laws governing how they interact with each other and society. Because the laws both reflect and support larger institutional structures, the fourth section outlines the broad institutional patterns which seem to best describe our current structure and how it may be changing. The fifth section highlights key areas of stress and change in the present system, and the concluding section discusses the implications of the preceding analysis.

What are boundaries? They are not merely human gashes across the natural landscape. Rather, boundaries mark divisions of control over and responsibility for resources among individuals, organizations, and governments. These divisions usually do not take the form of simple disjunctions, voids, or impermeable barriers. Just as ecological boundaries are best understood as zones of transition (Risser 1993), gradients of change (di Castri et al. 1988), and membranes (Norton 1992), social boundaries are areas both of difference and change, and of contact and interaction. Social boundaries typically are governed by rules and conventions which define the terms of engagement between the actors and organizations they simultaneously separate and connect. Moreover, as is vividly demonstrated by other chapters in this book, social boundaries can reshape and sometimes even create ecological ones.

The premise animating this book and much ecological writing is that boundaries -- at least social boundaries that do not match ecological ones -- are bad. This line of thought highlights several generic problems with boundaries. First, boundaries can make it difficult to coordinate behavior among individuals, organizations, and communities. Where ecological resources are shared, lack of coordination can lead to inefficient, inconsistent, wasteful, or destructive resource management. Second, boundaries can impede and disrupt information flows among organizations, thus making it difficult for any actor to understand the full state of the system involved or its likely future, and hence to act intelligently. Third, boundaries can encourage organizations and communities to externalize costs of their activities to other social units while seeking to retain the benefits. Thus it is common to see environmental bads, such as pollution sources and waste sites, placed next to boundaries, so that some of their costs will be borne by outsiders. Similarly, people often cluster along the boundaries of environmental goods, such as parks and wilderness areas, in attempts to capture special benefits for themselves without fully paying the costs.

Given the problems listed above, organizational and jurisdictional boundaries are often seen as irrational human follies that need to be overcome, if not eliminated. However, boundaries perform useful functions as well. Often these are simply the converse of the problems they pose. First, boundaries can slow the movement of disturbances or misguided policies from one entity to another, and thereby provide time for adaptive or corrective responses (Naiman and Decamps 1990; Morehouse 1995). Second, they can facilitate efficient resource and information flows within organizations and communities, by delineating who is permitted and who is required to know about a given matter (Williamson 1985). Third, boundaries can facilitate clear allocation of management control and responsibility, connecting actors to the consequences of their acts (Ellickson 1993). Accordingly, the problem of cross-boundary stewardship is not likely to be as simple -- or as unworkable -- as eliminating or even redrawing boundaries on a broad scale. Rather, it will require building a much better understanding of the dynamics and effects of boundaries, and then adjusting our laws and institutions to make them as functional as possible for stewardship.

But what is stewardship? Conceptually, the answer seems straightforward. Lynton Caldwell’s definition -- "socially and ecologically responsible custody of the land" (1986:324) -- is fairly typical and probably non-controversial. So is the proposition that stewardship responsibility extends to both present and future generations. Most people might even agree that stewardship means preserving the integrity and productive capacity of the land. At the point of implementation, however, consensus drops sharply. First, American landowners as a class have neither accepted nor been placed under a general duty to practice stewardship (although many laws constrain them from doing things that would be inconsistent with stewardship). Second, we lack a robust understanding of what stewardship means in concrete cases. Thus, while it is possible to say that some actions clearly are stewardship and others are not, there is a large middle range subject to great uncertainty and contention. We simply do not know the full effects of many of our actions. Even if we did, we would still have to work out what effects are acceptable and who should pay the costs of taking or not taking action. Progress on both fronts may be underway, but remains preliminary.

The cross-boundary dimension of stewardship seems to exacerbate the problem, but may actually help to clarify it. Cross-boundary stewardship requires coordinated behavior, and coordination generally requires creating shared understandings and values. Cross-boundary stewardship thus may turn out to be doubly pivotal -- first as a major forum for working out the practical meaning of stewardship, and second as a sensitive barometer of progress, since both the greatest achievements and the greatest problems are likely to be evident along boundaries.

Cross-boundary stewardship is a system problem. The model landscape in Figure 1 suggests the nature of the system involved. Just as a landscape consists of plant and animal communities, land forms, streams, and nutrient flows, it also consists of social organizations, communities, institutions, information flows, and exchange systems. These elements are as central to an adequately conceived ecosystem as the plant, animal, and physical interactions that traditionally dominate the attention of ecologists. As in any ecosystem, the concrete nature of the social elements will vary enormously from place to place, but many of the categories and types of relationships are general. The next four sections describe the basic types of social actors and the rules and institutions affecting cross-boundary stewardship in the U.S.

 

Figure 1. A Model Landscape

LANDOWNERS

American landowners exercise enormous jurisdiction over natural resources.
Although their powers vary among states, and are always subject to some uncertainty, they generally include rights to determine the overall use of land, harvest plants, change habitats, mine solid minerals, and capture mobile publicly owned resources such as water, natural gas, petroleum, fish, and wildlife. Landowners’ capacity for cross-boundary stewardship is heavily affected by what they can do within their boundaries, which in turn is affected not only by their property rights, but also by their legal organization and individual management policies.

Private Landowners. Each type of private landowner in Figure 1 operates with a different set of legal and organizational capacities. Corporate landowners generally have the capacity to pool large quantities of investment capital, but operate under a duty to maximize profits to investors. Exactly which strategies will maximize profits in an uncertain and changeable environment is rarely apparent. So corporate managers exercise considerable discretion and their land management practices vary. Whether the profit duty is fundamentally compatible with stewardship is highly contested, and cannot be resolved here. But the profit motive clearly does little to promote long term stewardship, since future generations are not present to bid in current markets and the nature of the interest rate makes a dollar in the future worth less than a dollar today. Accordingly, laws requiring stewardship practices are very important to framing the legal environment in which profit maximization is defined.

Non-corporate private landowners also experience pressures to generate revenues, but generally have no legal duty to maximize profits (with the partial exception of private trusts) and enjoy flexibility to pursue other goals, such as retention of a family land base or maintenance of wildlife habitat. Whether they pursue such goals, however, is highly variable, depending on value commitments, financial circumstances, and other factors.

Not-for-profit landowners, such as land trusts and conservancy organizations, generally have authority to manage for stewardship goals such as biological integrity, scenic beauty, or historic preservation. Their need to garner resources, however, sometimes leads to revenue producing land uses.

Government Landowners. In addition to performing the regulatory functions discussed below, governments at all levels -- local, tribal, state, and federal -- own considerable quantities of land. Various agencies manage that land, and their policies vary by law and tradition. While the National Park Service is usually mandated to preserve lands in their "natural" condition, the Federal Bureau of Land Management and the United States Forest Service manage lands for "multiple use," which allows significant changes in the condition of land but not impairment of its productivity. All federal agencies use forms of internal "zoning" to allocate land to specific functions (hence the wilderness/scenic river and timber/grazing boundaries in the Forest Service and B.L.M. lands in Figure 1). They also do relatively broad scale, long term planning. The National Environmental Policy Act (NEPA) requires federal agencies to consider the direct, indirect, and cumulative effects of their significant actions, including effects beyond their own boundaries (42 U.S.C. §102; 40 CFR §1508.8), and to consult with each other and consider possible conflicts with other federal, state, and local agencies’ policies (42 U.S.C. §4332; 40 CFR §§1501-04). Federal management agencies also have authority under other statutes to coordinate with private landowners (Meidinger 1997a). In sum, the federal land management agencies are mandated to perform stewardship of their own lands, and arguably to perform cross-boundary stewardship. They have sufficient discretion, however, that actual cross-boundary stewardship will depend on their making significant policy changes and learning to collaborate with other landowners. There has been some movement in this direction, but it remains preliminary and partial (Keiter 1994, Interagency Task Force 1995).

Indian tribes occupy large areas of land in many ecosystems. Traditionally, the federal government has held that land "in trust" for tribes, managing it in their "best interests" as determined by Congress and the Federal Bureau of Indian Affairs (BIA). Although the best interests criterion would seem to imply a stewardship responsibility, BIA management, driven by a mix of Congressional and societal hostility, paternalism, and bureaucratic rigidity, has often been wasteful and short-sighted (Wilkinson 1987). The BIA’s response to recent federal legislation reducing its policy control may make management of Indian lands more responsive to tribal needs and values (Allen 1989), and Possibly more oriented to stewardship on the whole, although there will still be much disagreement about appropriate land management policies.

States own large quantities of land subject to many mandates. Many state lands are managed for purposes, such as parks, compatible with cross-boundary stewardship. Some, however, are formally held "in trust" to support specified public functions, such as education. Important questions have arisen about the meaning of trust mandates, with some parties arguing that state agencies have a narrow duty to maximize revenue streams to beneficiaries of the trust (Thorud 1994), while others see more latitude to serve the general public interest and preserve options for future generations (Arum 1990). Of course, even if states have a narrow duty to maximize revenues, there is still a big question as to what strategies will achieve that end. Hence state agencies could follow some corporations in concluding that long term revenues will be maximized by preserving biodiversity and negotiating proactive habitat conservation plans. In any case, the general legal argument that state trust lands must be managed exclusively to maximize revenue streams is not strong. Unlike most private trusts, government trusts are generally permanent, covering many generations, and government trustees necessarily exercise broader discretion than private ones.

Summary. Private and government landowners are important actors whose mandates and practices vary enormously. Only some government and a few private landowners have mandates to practice cross-boundary stewardship, but most others probably have the capacity to do so. Whether they do depends heavily on laws and institutions structuring landowner relationships with each other and society.

 

CROSS-BOUNDARY LAWS

Cross-boundary relationships tend to reflect years of ad hoc problem solving and local custom. When informal mechanisms prove inadequate, laws established and enforced by governments come into play.

Common Law. Perhaps the most basic boundary rule is the prohibition on trespass. In essence, trespass law protects owners from unauthorized "touchings" or entries to their property. Trespass law can promote stewardship by ensuring that owners ‘reap what they sew,’ at least in the near term and within the bounds of their property. It can also be use to obtain compensation for physical invasions of property such as oil spills. Because trespass law governs only entries by humans or objects they control, and because it is difficult to illustrate human control in many ecological processes, its ability to encourage cross-boundary stewardship is limited. Nonetheless, it creates an important legal baseline from which bargaining, negotiation, and coordination can occur.

"Nuisance" law gives landowners and the public the right to be free from land use activities that ‘substantially and unreasonably interfere’ with the use and enjoyment of their property or public rights. Possible nuisances include the production of pollution or odors and the depletion of shared resources. Nuisance law is quite general, and what activities are defined as unreasonable changes over time, as knowledge and social values change. This has hindered and helped cross-boundary stewardship at different times. During the early industrial period, for example, a coal mining company whose runoff water pollution ruined the drinking water, killed the fish, and destroyed various other domestic uses of downstream landowners was held not liable for those effects. According to the court, "the necessities of a great public industry, which although in the hands of a private corporation, serves a great public interest" justified such "trifling inconveniences to particular persons" (Pennsylvania Coal 1886). After about World War II, courts increasingly found such interferences with use and enjoyment of neighboring property to be nuisances. But knowledge limitations combined with the difficulty of bringing individual law suits have limited the role of nuisance law in promoting cross-boundary stewardship.

Another important body of inter-owner law involves ‘easements,’ ‘real covenants,’ and ‘equitable servitudes,’ often lumped together as ‘servitudes.’ Servitudes are rights held by one party to either use or limit the use of land owned by another. Landowners can use servitude law to negotiate and enforce almost any agreement they might wish regarding acceptable uses of each other's property. The agreement can be made binding on subsequent owners who were not involved in its negotiation. Moreover, recently developed "conservation easement" laws allow governments and not-for-profit organizations such as land trusts (regardless of whether they own neighboring land) to negotiate arrangements limiting owners’ use of land in specified ways. Although these laws vary among states (see Diehl and Barrett 1988 for a summary), they generally are quite flexible. For example, a conservation easement for one piece of land might permit timber harvesting (perhaps at a set rate) but not mining or subdivision, while that for another might permit only recreational uses and limited housing development.

Nuisance and servitude law help illustrate a more general truth about landownership: not all the rights in a particular piece of land are ever held by one landowner. In addition to the concurrent rights of neighbors, the public, land trusts, and others outlined above, rights to the same parcel of land are often further divided in space and time. Thus rights to the minerals (coal, oil, natural gas, precious metals, etc.) may be held by one party while rights to the surface (grazing, timber, residence, etc.) are held by another. Similarly, rights to use either type of interest may be held in the present by one party (for a set number of years or a specific lifetime), and in the future by another. Of course, because these different types of owners often have inconsistent interests and can significantly help or hurt each other, it is necessary to work out rules governing their relationships. Relations between present and future interest holders, for example, are partly governed by the judicially-created law of "waste," which essentially prohibits present possessors from using property so as to "unreasonably" interfere with the interests of future possessors. As in nuisance law, what uses are reasonable and unreasonable varies greatly with time and place. Because of its vagueness, and a general preference of the American legal system for encouraging resource use, the law of waste has done very little to promote stewardship.

Environmental Law. The many cross-boundary environmental effects wrought by the industrial revolution led to demands for new types of laws to limit and control those effects. Because environmental problems were soon understood as too complicated and changeable for generalist, non-expert judges, they were frequently assigned to specialized government agencies. These agencies’ responsibilities gradually expanded from simply enforcing laws, to developing and revising them, to sometimes spotting and attacking new problems. Initially, local governments were most active in environmental regulation. In the 19th century they passed laws prohibiting maladies such as "dense smoke" and disposal of dead animals in water bodies. In the early twentieth century they adopted comprehensive zoning ordinances relegating different kinds of activities to different "zones." Those strategies proved inadequate, however -- because environmental problems are quite complex and readily cross municipal boundaries. After World War II first the states and then the federal government became increasingly involved in developing uniform environmental standards applicable across large geographic areas.

Today there are major federal statutes regulating air pollution, water pollution, endanger species management, and hazardous chemical production, transportation, and disposal, as well as narrower ones targeting coastal zones, estuaries, wild and scenic rivers, wetlands, etc. In essence, almost all of them are efforts to control cross-boundary problems through rules. Most involve setting general standards and then using permit programs (often administered by states and localities) to implement them. Many focus on "end of pipe" solutions, and do little to prevent problems from arising or link them to underlying causes such as high energy consumption. More importantly, in the process of trying to solve typical types of problems in a uniform way across ownership boundaries, these laws have created new jurisdictional boundaries among agencies and programs. Although each program probably made sense when it was created by focusing on a reasonably tractable problem, the aggregate result is a plethora of programs, each of which imposes its own set of rules on regulated parties. There are few good mechanisms for coordinating programs run by different bureaucracies under different statutory frameworks. Although interagency memoranda of understanding are being developed in some areas of federal policy, it seems unlikely that they will overcome the effects of statutory variation and bureaucratic momentum.

Coexistent state and local regulatory programs increase regulatory complexity. Federal agencies exert significant control over many state and local programs, but the overall system remains loosely coordinated. Federal programs typically use two mechanisms to induce state and local conformance to federal policies: (1) making federal funding for state programs contingent on the state program meeting federal guidelines and (2) threatening to impose a direct federal regulatory program if the state fails to produce a satisfactory one. Federal agencies sometimes have authority to require state programs that interfere with those of other states to make appropriate changes, but have rarely used it (New York 1988). In sum, while federal programs have produced increased consistency over time, much variation remains. This situation also has a positive side, however, since it allows for local experimentation and variation.

"Non-Environmental" Law. The laws shaping cross-boundary stewardship are not limited to the traditional category of "environmental" law. Just as stewardship can be significantly affected by legal definitions of the duties of corporate managers, so it can be affected by laws governing valuation of assets and financing. Liberal debt financing laws, for example, can encourage rapid resource liquidation and a refusal to develop joint resource management plans with neighbors. In tax law, while income tax deductions can encourage conservation easement donations, high federal estate taxes and local property taxes reflecting development potential can encourage rapid resource liquidation, sale, or subdivision, which can in turn create new cross-boundary stewardship problems (Small 1989). In a still emerging way, intellectual property law may have comparable effects on cross-boundary stewardship, as rules on ownership of genetic codes, trade secrets, and the like shape and reshape incentives and disincentives to cooperate and share information. Antitrust law may also influence cross-boundary stewardship. Lawyers representing forestry companies have argued that the information sharing and joint decision making involved could expose their clients to antitrust liability (Pauw et al. 1993). For public agencies, general rules of administrative law governing matters such as collection and dissemination of information and use of advisory committees may be at least as important as their land management mandates.

Summary. The legal and institutional context of natural resource management is multi-layered and complex, beginning with several types of legally-constructed owners (private, corporate, governmental), all with different mandates and incentives, proceeding to include a variety of interlinking rights and duties among them and other actors, and then including many types of general laws (water, air, land use, wildlife, antitrust, etc.) implemented by a variety of governmental bodies operating at several levels. Although all of these laws can be important to cross-boundary stewardship, they are too numerous, variable, complex, and dynamic to be analyzed simply by cataloguing and adding them up. Rather, both the laws and the prospects for cross-boundary stewardship are best analyzed in terms of the larger institutional patterns they reflect and maintain, and how those patterns may need to change to facilitate cross-boundary stewardship.

 

FUNDAMENTAL INSTITUTIONAL PATTERNS

Institutions are basic, widespread patterns of social organization. They often reflect widely shared, taken-for-granted assumptions that serve as social templates (Meidinger 1987, Shannon forthcoming). Three basic institutional models--feudal, liberal, and networked--are helpful for conceptualizing the challenges of cross-boundary stewardship.

Feudal Order. Feudal order takes the form of the nested hierarchy depicted in Figure 2. Commands and protection flow downward while information and resources flow upward. Cross-boundary problems are handled through rising layers of officials responsible for coordinating the activities of the lower units, although much decision making remains decentralized. The government and property systems are largely synonymous, with the sovereign serving as both the supreme governmental official and the ultimate owner of all land, while the lower members of the hierarchy both manage discrete parcels of land and perform local governmental functions. Individuals are defined largely by their roles in the system.

 

Liberal Order. Reflecting direct opposition to the feudal order, the liberal order has four key elements. First, property is separate from government. In fact, although largely created by government, property rights are seen as a bulwark against it. Second, law is used as a buffer between government and property. Those in charge of government rule by properly passing and enforcing laws rather than by giving direct orders to individuals -- hence the "government of laws and not of men" refrain.

 

Third, society is conceived as a collection of atomistic or semi-autonomous individual units which add up to make the whole. Operating in their spheres of control, subject only to general laws applicable to all, property owners have what Blackstone so evocatively described as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" (Blackstone 1861). Fourth, hierarchies remain alive and well in distributed form. Most units of society -- families, firms, government agencies, etc. -- remain deeply hierarchical. Thus an adequate graphical depiction would include a hierarchy of some kind at each dot in Figure 3. Similarly, most if not all of the land parcels of Figure 1 would be topped by hierarchical organizations of varying form and extent.

Networked Order. Even if existing institutions are dominated by hierarchical and liberal structures, there is nonetheless good reason to think that the challenges of cross-boundary stewardship imply networked structures of the kind depicted in Figure 4. Many of the reasons are described in Breckenridge (1995) and Meidinger (1997a). The key characteristics of networked order are the use of horizontal alliances and partnerships to achieve coordinated action, a heavy reliance on communication and information flow, and an emphasis on flexibility and adaptation. Environmental and natural resource organizations with networked structures are appearing at every social level from local watersheds (Wondolleck and Yaffee 1994) to international systems (Meidinger 1997b). Naturally, their emergence creates some strains with traditional institutions, which stress hierarchy, control, fixed jurisdiction, division between private and public functions, and reliance on formal rules. If networked structures aiding cross-boundary stewardship are to flourish, key elements of existing structures will have to change. The next section reviews four broad patterns of change in natural resource institutions which may be crucial to the prospects for cross-boundary stewardship.

 

KEY CHANGES IN POLICES AND INSTITUTIONS

A number of current policy developments may be important for successful cross-boundary stewardship. Though multi-dimensional, they are organized in terms of four broad tendencies: privatization of policy making, movement from rules to discretion, decentralization, and politicization of information. Although the prior sections indicate that developments such as these are important to the expansion of cross-boundary stewardship, they are not unalloyed goods. They embody a variety of goals and potential negative consequences.

 

 

Privatization of Policy Making. As suggested in the "Institutional Patterns" section, boundaries between private and public domains may be the central achievement of the liberal order. Those boundaries are enforced in part by judicial interpretations of the Constitutional prohibition of uncompensated "takings" of private property and in part by laws defining acceptable public participation in government policy making. These seem to be going in different directions, but may actually both support growing private control of policy making. Thus courts and legislatures have recently shown a tendency to reduce government’s ability to adjust private property rights in response to new knowledge and social values (e.g., Lucas 1992). These developments may seriously inhibit society’s ability to appropriately value and protect natural resources (Freyfogle 1993; Sax 1993; Meidinger 1993, 1997a). They certainly minimize the likelihood of legally mandating cross-boundary stewardship, since any landowner required to coordinate management with neighbors could readily claim a taking of previously enjoyed property rights.

Conversely, rules confining public policy making to governments may be opening somewhat. Thus, the Negotiated Rulemaking Act of 1990 explicitly encourages federal agencies to convene stakeholder groups to draft important regulations, and agencies such as the EPA have made extensive use of it (Freeman, in press). Moreover, the Federal Advisory Committee Act (FACA), which sharply constrains federal agency relationships with groups seeking to influence public policy, has been interpreted by the Supreme Court as applying only to groups established or controlled by the federal government (Public Citizen 1989) and was recently amended to remove strictures on federal contacts with state, tribal, and local governments, which in turn will become forums for public/private policy negotiation (Lynch 1996).

Expanded private policy making is also evident in the increasing use of Habitat Conservation Plans (HCPs) to protect endangered species. These are essentially negotiated agreements in which landowners develop and commit to implementing long term habitat conservation programs in return for federal permits allowing "incidental take" of protected species. While many HCPs involve individual landowners, several regional efforts involving multiple landowners, agencies, and species have been undertaken (Interagency Task Force 1995). Similarly, the Environmental Protection Agency (EPA) has long given companies discretion to "trade" air and water pollution both within and among sources (e.g., Meidinger 1985).

Possibly the most important change in public-private relationships is the growing amount of "public" policy making occurring almost entirely outside of government processes. Best known to American scholars are the plethora of recent watershed and landscape planning processes such as the Applegate Partnership in southwestern Oregon. These generally involve multiple landowners and agencies working to develop consistent cross-boundary stewardship plans (Wondolleck and Yaffee 1994). Equally important are private and quasi-private global processes. For example, a global non-governmental organization (NGO) called the Forest Stewardship Council (FSC) is working to develop consistent field-based standards for sustainable forest management applicable to all the forests of the world (Meidinger 1997b). Similarly, the International Standards Organization (ISO), which has relationships with many governments but operates separately from them, is developing a series of environmental management standards aimed at making businesses’ environmental management practices globally consistent (id.). Although ISO is more industry oriented, both the FSC and ISO efforts involve NGO-business partnerships seeking to set legitimate standards in a non-governmental context.

Industry and trade associations are also taking a much more direct and public role in standard setting and enforcement. Important examples include the chemical industry’s Responsible Care Program for controlling hazardous chemical management worldwide (Gunningham 1995); the American Waterworks Association’s stakeholder process for developing regulations defining the information to be provided in "consumer confidence reports" required by recent amendments to the Safe Drinking Water Act (Inside EPA 1996a); and the Association of Metropolitan Sewage Agencies’ intensive effort to design and sell a program in which EPA would set total maximum daily water pollution limits on a watershed basis and allow local dischargers to negotiate and enforce arrangements for meeting them (Inside EPA 1996b).

The above developments are important because they are creating new local, national, and international environmental programs and because they shift policy making outside governmental processes. Thus, like it or not, governments are placed in the role of being participants in local, national, and global policy networks, rather than near-exclusive makers and enforcers of public policy. This trend is positive insofar as it involves a larger sector of society in defining and implementing cross-boundary policies, but may pose significant problems by reducing the long-term capacity of government to define and enforce standards.

Rule to Discretion. Although the categories of rule and discretion may not be intuitively obvious to many readers, they are closely connected to the public/private boundaries of liberalism discussed above. A basic premise of liberalism is that government should use clear legal rules, rather than ad hoc commands or vague norms, to govern behavior. Rules have been the primary mechanism for promoting cross-boundary stewardship to date. There are two major problems with this approach. The first is that rules generally cannot be written precisely enough to produce appropriate outcomes in every real world situation. They will generally prohibit some behavior that would be benign or beneficial (the problem of "over-inclusiveness), and will also allow behavior that would be destructive ("under-inclusiveness") (see Boyer and Meidinger 1985). These problems are recurrent in natural resources policy. For example, it may be clear that driving a heavy vehicle across a stream will often, but not always, damage spawning habitat. If a blanket rule banning driving across streams is enforced to achieve cross-boundary stewardship, a number of harmless crossings will be prevented, imposing potentially significant costs. Yet, it will be virtually impossible to write a rule clearly defining every situation in which it is or is not acceptable to drive across a stream. Conditions are simply too variable and information too limited. Under-inclusiveness will also be a problem; driving across streams is only one kind of activity that might harm fish, and it will be impossible to write rules controlling all of the others. Thus, it is possible that discretion exercised according to appropriate principles in a network of accountability would be more functional than rules. But rules remain the accustomed way of doing things.

The second problem with rules is that they add up, quickly producing a dense, complicated legal environment (Orts 1995). The agglomerated rules often fit together poorly and work at cross-purposes, making compliance difficult. Even a small company may have a dozen major reports and certifications to file with a half dozen different environmental agencies every year. This situation gives rise not only to complaints about "red tape," but also to non-cooperation and occasional political counter-attacks. One scholar argues that existing federal laws for biodiversity protection create such a counter-productive tangle that it would be best for the federal government to start completely over by selecting key ecosystems, suspending current laws, setting a serious goal of biodiversity protection, inviting stakeholders to work out how to achieve it, and conferring a federal permit if the plan they come up with is sound (Ruhl 1995).

Although such sweeping proposals seem unlikely to be implemented soon, a number of more modest efforts to bypass dysfunctional rule clusters are underway. Some of these are occurring in the watershed and landscape management efforts already described, as well as the FSC. Others are being sponsored by government agencies. The EPA’s "Project XL," for example, encourages regulated parties to propose innovative ways of achieving environmentally superior results without necessarily conforming to all existing rules. The Habitat Conservation Planning Processes described above take a similar tack. Although it remains to be seen how well they will work in a context of potentially opportunistic regulated parties and rule-habituated bureaucracies and interest groups, each of these initiatives exemplifies an effort to use stakeholder negotiation and site specific decision-making to achieve better results than those produced by juxtaposed rule systems.

Decentralization. For decades environmental policy seemed to be evolving toward a system of centralized policy making and local implementation. Recently, states have played a growing role in policy making (Gade 1996). They have done this by redefining their regulatory functions to include a higher level of information provision and "customer service," changing enforcement policies to seek a higher level of "voluntary" compliance, inviting regulated parties to make proposals for better ways of achieving regulatory objectives, and simply communicating more with each other and not just with the federal government. The EPA is attempting to support state and local innovations through a variety of initiatives like its Performance Partnership System, which seeks to give states greater flexibility in implementing environmental laws.

Again, where this movement will lead is unclear. In some areas, the federal government seems at risk of losing much control. For example, almost half the states have adopted "audit privilege" laws, which shield results of environmental audits from discovery for litigation and enforcement purposes. The EPA opposes these laws, but has yet to exert effective control over them. Conversely, state initiatives in other areas are almost completely blocked. State efforts to control solid waste disposal have been seriously hampered by a series of court decisions holding that the "commerce clause" of the Constitution (Art. I, §8 (3)) impliedly prevents states and localities from planning primarily for garbage from their own regions (Fort Gratiot 1992) or limiting access to landfills to waste generators with good recycling programs (National Solid Wastes 1995).

Politicization of Information. Some of the most far reaching changes in environmental policy have occurred in the relationship between research and policy making. Although conventionally treated as separate functions, they are becoming increasingly intertwined. Perhaps best known are the "science assessments" recently prepared for large eco-regions such as the western and eastern slopes of the Cascades, the Southeastern Appalachian Ecosystem, the Northern Forest of the northeastern states, and the Sierra Nevada Ecosystem. While these assessments vary in content, they share the assumption that radically upgraded, shared information bases are necessary for improved cross-boundary coordination. Less explicit, but no less important, is the assumption that better information will cause changes in policy and management. This assumption helps explain the intense battles among both scientists and policy makers over methodology, information distribution, and concept definition (Meidinger et al. 1996).

The importance of information can increase the difficulty of compiling it. Private and corporate landholders frequently resist sharing information with government agencies on grounds that freedom of information laws will make it available to the world at large, including people who should not have it. These include trespassers using information to poach valuable or protected plants and animals, real estate developers using it to modify sensitive areas before they can be legally protected, and even competing scientists using it to unfairly claim credit for themselves. The landowners have a point. Unless ecological information involves a trade secret, would invade personal privacy if released, or includes geological or geophysical data about an oil or gas well, federal agencies are unlikely to be able to withhold it under the Freedom of Information Act (FOIA, 5 U.S.C. §552). Of course, resistance to sharing information may also reflect less worthy fears, such as that it will be used to develop or enforce environmental protection policies. These fears can never be fully overcome, but could be isolated by amending FOIA to allow the non-disclosure of information when it involves the kinds of risks listed above.

While information sharing is often resisted, laws compelling its provision are a powerful and growing force. The "community right to know" law (42 U.S.C. §§11001 et seq.) requiring businesses to report all releases of toxic chemicals, whether illegal or not, has had a large impact both in prompting industry to reduce use of toxic chemicals and in galvanizing communities to demand safeguards from industry. These safeguards are often formalized in "good neighbor agreements" between companies and communities, thus creating a new cross-boundary stewardship mechanism. The EPA recently proposed regulations requiring disclosure of all toxic chemicals stored and used by businesses, not just releases, provoking a storm of industry protest. As noted above, the Safe Drinking Water Act was recently amended to require water utilities to send "consumer confidence reports" detailing the chemical and biological content of water to all customers, and this is likely to create new pressures for improving water quality. These developments are consistent with those in Europe, where disclosure provisions are becoming a cornerstone of environmental policy (Orts 1995). Finally, as noted in the "privatization" section, NGOs are increasingly relying on certification systems and eco-labeling to achieve policy goals. In every case, information is being deployed as a tool to coordinate and control resource use, and that is creating both new mechanisms for cross-boundary stewardship and new resistance to it.

 

Conclusion

After reading this chapter, one is unlikely to feel a surge of confidence that cross-boundary stewardship will soon be widely and effectively practiced. The question then arises, what should be done? It is a question that cannot entirely be answered. One possibility would be to cut through the whole system and make cross-boundary stewardship legally mandatory. While appealing, this option seems implausible, not only for political reasons, but also because cross-boundary stewardship probably cannot be defined with sufficient clarity to determine when it is or is not being practiced. The idea of stewardship is as vague and open-ended as it is compelling. It exudes the need for judgment, for learning, for new knowledge, for experimentation and reflection. It also exudes the need for dialogue and deliberation. In short, as Aldo Leopold observed about the land ethic in 1949, cross-boundary stewardship is a social ideal, not a legal standard, and probably will remain so for some time.

Law’s inability to unilaterally produce stewardship does not make law irrelevant. Although the Interagency Task Force (1995) recently found little need for legal change, the analysis in this chapter suggests that many legal changes will have to occur over time. Almost every legal area discussed, from nuisance to antitrust, could adapt to facilitate stewardship without undermining its core objectives. Details will often have to be worked out in light of further experience and research, but the general contours of several desirable changes are apparent at this stage. First, if on-going, deliberative collaboration is to occur among landowners, communities, and federal agencies, FACA should be amended to allow federal officials to make and keep commitments developed through group deliberations. Although there are several possible ways to do this, perhaps the most straightforward is simply to make FACA inapplicable where (1) a group is working to develop cross-boundary resource management strategies, (2) the group is open to anyone who wishes to participate, and (3) federal officials keep detailed, publicly available records of group deliberations. If limiting participation in the group becomes important, then the agency can charter a FACA committee.

FOIA is also a clear candidate for amendment. The simplest solution to its current disincentives for information sharing is to exempt from disclosure to non-governmental parties information that can reasonably be expected to lead to poaching, preemptive development, or loss of commercial value. Although anti-trust laws have received little attention, there are also good reasons to think that they will have to be revised to allow stewardship consultations including competing producers. This could conceivably be done by Congress, the courts, federal agencies, or the states (Meidinger 1997a). The best near term option seems to be for the states to shield cross-boundary stewardship activities by creating state managed processes in which they can occur.

Numerous other areas of law would also benefit from reassessment and possible revision, including the huge patchwork of federal environmental law. Yet whether and how it should be changed is hard to say. This is partly because the questions are very complicated, and partly because we have not produced a systematic body of research on environmental law and institutions. At present most commentary consists of pronouncements by lone scholars or partisan interest advocates. Our methodology remains far more case law based than empirical, and our style of analysis more dissective than synthetic. Further, we are far more comfortable studying individual decisions and laws than studying systems. This may be changing, as legal and policy researchers develop working relationships with ecological researchers and managers. But if the goals of this book are to be fulfilled, it will have to be just an early step in building an ongoing network of inquiry and dialogue among the scientific, policy, and management disciplines, as well as landowners, public interest groups, communities, and others. If that happens, then in ten years we will know much more about cross-boundary stewardship. If not, this chapter will remain current.

 

ACKNOWLEDGMENTS

Research for this chapter was supported in part by funding from the U.S.D.A. Forest Service, Pacific Northwest Research Station, People and Natural Resources Program through a cooperative agreement on Legal Issues in Ecosystem Management. The research assistance of Michael Kotin and Carol Messito, the computer assistance of Chris Meidinger, and the substantive comments of Margaret Shannon, Barry Smith, and members of the SUNY-Buffalo Environmental Policy Colloquium are gratefully acknowledged.



 

Cases Cited

Fort Gratiot Sanitary Landfill v. Mich. Dept. of Natural Resources, 504 U.S. 353 (1992)

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

National Solid Wastes Management Assoc. v. Myers, 63 F.3d 652 (1995)

New York v. EPA, 852 F.2d 574 (1988)

Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126 (1886)

Public Citizen v. U.S. Dept. of Justice. 491 U.S. 440 (1989).

 

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