Law and science interact over time and these interactions can be more or less fruitful for each. From the beginning, the statutes of the U.S. National Forest System have looked to forest age and maturity as indicators of harvest timing. As more of those forests were harvested, however, the public turned to age and maturity as hallmarks of what should be protected in a forest. This put a clear onus on scientists investigating forest maturation to differentiate "old" and "mature" forests from the rest. As legal constraints on the U.S. Forest Service came to define the agency's managerial discretion, as well as its relationships to appropriators and authorizing committees in Congress, more importance accrued to those investigations. But they remained unfocused. The courts enlisted to interpret those legal constraints, furthermore, revealed case-by-case what little the constraints did to provide legal protections to extant old or mature forests, whether directly or indirectly. An improved model could better focus scientific investigations by straightening the Forest Service's managerial discretion under law, thereby sustaining agency attention to the science and its outputs over time.

The national forests of the eastern United States are where and what they are today based in good part on a mistake. When they were being acquired and established in the early twentieth century, hydrology was in its infancy. Yet many hydrologists and their students in government were promising that these forests would provide significant protection from floods. They promised more than they should have. Forests as protection from floods were embroiled in a contentious and prolonged factual inquiry almost immediately thereafter. Indeed, that inquiry would later mature into a distinct scientific subfield, forest hydrology, that went on to influence how we govern-and do not govern- watersheds today. This article traces that maturation and the co-evolution of the federal laws of forestry, flood control, and watershed governance with forest hydrology, geomorphology, and other branches of hydrologic science. It reveals important lessons for today's intersections of law and scientific inquiry, especially for legislation that rests on unproven hypotheses.

This is the first major study of the National Ambient Air Quality Standards (NAAQS) in a generation. This study focuses on a unique co-evolution of science and law over more than a half-century of development. Our NAAQSs can be found everywhere from your phone’s air quality index to the trends of cardiovascular and respiratory disease in America. Yet no one has studied the ways in which law and the science of air pollution have reciprocally determined each other through them. Through a study of 26 reviews across seven presidencies and 21 reported opinions adjudicating 106 petitions challenging those reviews/revisions, this piece offers firm conclusions about the NAAQS-setting history and what it can teach us about deliberate improvements of the law/science interface.

For more than a century the Supreme Court has heard a steady stream of original jurisdiction controversies “between two or more States” over interstate waters. It has for even longer heard and decided similar cases involving non-state parties from its appellate dockets. Until now, no synthesis has combined these traditions to describe and explain states’ legal interests in interstate waters as an amalgam of federal common law, Article III’s judicial federalism, and the separation of powers. This article disentangles legacy opinions, orders, and jurisdictional traditions, revealing the bundle of interests that all courts are obliged to protect. It finally offers a choice of law rubric built from key principles animating the Supreme Court’s original jurisdiction holdings, the major trends from its non-original dockets, and from what the Court has said about (federal) judge-made law more generally.

The 'We Are Still In' movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of dormant preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also avoid lumping sub-national action advantaging some firms in a competitive market under the old unionist fears of protectionism in all things local. A bottom-up movement like 'We Are Still In' may be uniquely positioned to keep the nation's pledges on climate change mitigation — and its obligations under U.S. treaties and public international law — but only if our courts understand the stakes and the fine print of our foreign affairs federalism.

Waters and water rights have endured (or induced) a uniquely pathological tendency in our tradition to split up the authority to declare the operative legal interests therein. By studying three seemingly unrelated areas of waters and water rights law, this tendency is brought out in its essence and linked to explicit foundations and likely causes. Ultimately, this kind of extreme jurisdiction splitting is rendering our waters ungovernable, forcing even the most basic legal questions to go undecided. The last part of the article introduces three different reform pathways but cautions against the search for quick fixes of any kind.

This symposium essay explores the leverage that our National Environmental Policy Act (NEPA) can provide to those aiming to change the direction we have been heading in our wildfire epidemic. The epidemic has resulted from decades of policy choices at the local, state and federal levels. Changing directions across that broad and deep a field of policies is necessarily a long-term agenda. But the essay explores some retreat alternatives where these fire policies are concerned as they have arisen in our national wildfire policy and planning spheres. Ultimately, the aims are modest because there is no quick fix on wildfire. But careful planning and careful uses of NEPA, with special attention to NEPA doctrines in the Ninth, Tenth, and D.C. Circuits, can empower those convinced that changes are needed. Advocates with this kind of countervailing power can help reshape our wildfire policies in a variety of agency contexts.

In promulgating the Clean Water Rule of 2015, U.S. EPA and the Army Corps of Engineers responded to more than a decade of legal turmoil and calls from all quarters that they clarify their Clean Water Act (CWA) jurisdiction. The rulemaking combined the agencies’ response to four decades of judicial precedent with a massive gathering, sorting, and interpreting of the available scientific evidence describing the composition and functioning of the Nation’s “waters.” The resulting exclusions and inclusions by rule will clarify several jurisdictional boundaries. But the rule leaves certain decisive concepts, especially the notion of a tributary and the connectedness of aquatic systems, open to individuated findings of fact — findings that inevitably involve agency discretion. This article articulates and responds to the gravamen of the legal challenges to the rule now being litigated in several federal courts. Some subset of those claims is likely to reach a Supreme Court very different from that which last heard two CWA jurisdictional challenges a decade ago. In the end, the article argues that the rule is a compromise all would be wise to accept.

there is one bitter truth about the Endangered Species Act (ESA) to be taken from the sagas of the gray wolf (Canis lupus) and grizzly bear (Ursus arctos horribilis), it is that "recovery" and its related legal concepts are departing further and further from the ideal of restoring species to be functional elements of healthy ecosystems. Statistically, wolves, like grizzlies and many other predators, are about as rare today as they were when they were found to be "threatened" and "endangered" in the contiguous United States. Yet, if the government has its way with the definition "recovery," these species will be removed from the list of threatened and endangered species. In this, the gray wolf and grizzly, like other species, are showing how ill-adapted the ESA, 16 U.S.C. §§ 1531-1544 (2006), is to the future of wildlife conservation. I use the gray wolf and grizzly bear sagas here to level a critique of a statute that is fast eroding disappearing behind mountains of guidance, manuals, policies, and court settlements and will try to frame some issues that "recovered" predators are forcing onto the wildlife conservation agenda. With populations of around 5,000 and 1,100, respectively, the gray wolf and grizzly bear seem to have entered the same stage of life under the ESA. It began with the federal government's determination to declare victory and return a small, apparently stable population to state control. On February 8, 2007, the U.S. Fish and Wildlife Service (FWS) published a final rule designating and delisting the "Western Great Lakes Distinct Population Segment of Gray Wolves" and, on the same day, proposed a rule to designate and delist the "Northern Rocky Mountain Distinct Population Segment of Gray Wolves." See 72 Fed. Reg. 6,052, 6,106 (Feb. 8, 2007). At the end of March, FWS announced a final rule delisting a distinct population segment of grizzlies in the "Greater Yellowstone Area." See 72 Fed. Reg. 14,866 (Mar. 29, 2007).

The fight to force climate change into environmental impact assessment pursuant to the National Environmental Policy Act (NEPA) to date has been long, bitter and mostly pointless. Even where agencies have relented in litigation or have proactively worked to integrate climate change considerations into their NEPA documents, the factoring done has consigned these considerations to the margins. Impact assessment naturally does so. Every such action/assessment will involve what amounts to a drop in a bucket of contributory causes to a globally-scaled, temporally remote catastrophe. Aggregative analyses minimize such contributions behind other, more immediate choice factors. A 2014 proposed guidance on climate change and NEPA from the Council on Environmental Quality ignored this fact. Likewise, the Office of Management & Budget’s “social cost of carbon” estimates allow almost everything they inform to go forward essentially unchanged. This article argues that a new approach is urgently needed and available. The approach sketched here consists in the development of programmatic alternatives pursuant to NEPA § 102(2)(E). That provision of the Act requires all agencies to study and develop alternative uses of “available resources” regardless of the magnitude or timing of their actions’ marginal environmental impact. The article makes the case that our principal “resource” where climate change is concerned now is what remains of our “burnable” carbon. Especially if we are to pursue the mitigation goals the U.S. Government committed to in Paris in December 2015, this approach is urgently needed. The steps outlined in Part IV of the article will help speed the U.S.’s development of mitigation options without many of the frictions other approaches will entail.

Every student of the National Environmental Policy Act (“NEPA”) knows that it is a “procedural” statute. Its practical difference as law is to force agencies to take a “hard look” at their proposed actions before taking them. NEPA’s broadest goal—that the government “foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations”—is not, by contrast, law to be enforced. In short, NEPA’s ultimate goal of making American society more sustainable has been marginalized even as its chief procedural tool—the Environmental Impact Statement (“EIS”)—has become ubiquitous. NEPA section 102(2)(C) clearly mandates in a modally unmistakable way that “all agencies of the Federal government,” when taking any “major Federal action[] significantly affecting the quality of the human environment,” prepare an EIS, specifying some of the contents thereof. Nothing in the statute even comes close to doing so for its more substantive objectives. For all the judicial pronouncements that NEPA is an “essentially procedural” statute, the question remains whether any such pronouncements bind the executive branch, preventing it from putting NEPA’s more substantive aspects into effect. The Supreme Court has held that “[b]efore a judicial construction of a statute . . . may trump an agency’s, the court must hold that the statute unambiguously requires the court’s construction.” Such holdings need not be expressed in these exact terms, but the Court’s formula clearly empowers the executive. Indeed, a judicial construction only binds as to the “precise question at issue.” Are there any such precedents in NEPA’s past? If so, how should they inform the President, whose duty and power it is to “take care” that the “Laws be faithfully executed”?

The Chesapeake Bay, America’s largest and once most productive estuary has attracted the single most sustained, deeply-financed, politically rooted ecosystem restoration partnership in American history. Troubles for the Bay were first recognized in the 1930s and serious efforts to restore it to its ecological baselines date to the 1970s. Its water quality problems stem largely from nutrient and sediment runoff and the over-feeding of its microorganisms, leading to hypertrophication and consequent oxygen depletion throughout the Bay. With the average hypoxic zone now around 40% of the Bay’s area during summers, this system’s fate is being decided today.In 2009, the Obama Administration took unprecedented steps to knit together the Clean Water Act’s traditional pollution control tools with decades of “collaborative” efforts that had been fashioned in the Chesapeake. What emerged was a synthesis of modeled targets, obligations, and steps to their fulfillment meant to bring most of the Bay’s segments into water quality standard attainment by 2025. Many questions surrounding the legality of that synthesis have been or are still being litigated. Deeper questions about the propriety of the Administration’s actions remain unanswered as well. This article uses a detailed case study of the Chesapeake to describe an emergent model of intergovernmental administration tailored to address our largest-scale environmental problems. The Obama EPA’s “total maximum daily load” (TMDL) in the Chesapeake — the subject of several published works already — has yet to be situated in its wider context. But it should be. The TMDL and its supporting norms were unique as an operational plan, achieving a level of transparency, accountability, means/ends rationality, and continuous improvement that were unprecedented at its scale. And whether this model can be replicated elsewhere turns out to be as much a question of law as of politics.

The Council on Environmental Quality (CEQ) was created by the National Environmental Policy Act (NEPA) which, by its terms, casts CEQ as an advisor to the president. President Nixon first ordered CEQ to create “guidelines” for federal agencies discharging their duties under NEPA in 1970. Those guidelines also influenced the courts that first interpreted NEPA in some obvious and some subtle ways. But in 1977, President Carter ordered that CEQ issue rules to bind all agencies, replacing informal guidelines with purportedly binding regulations implementing NEPA. Did that make CEQ NEPA’s “administering” agency? Can presidential action of the sort entitle CEQ’s interpretations of NEPA to Chevron deference? If so, what of the “agencies of the Federal Government” who are charged by the statute in terms with generating its “detailed statements” and pursuing its “national policy”?

Arbitrariness review of agency rulemakings has long set “political” influences aside as a special case worthy of special scrutiny. Reviews of agency “judgment” as apart from the review of legal conclusions or findings of fact normally target just such influences. In this essay for a symposium on democratic experimentalism (a/k/a the “new governance”), I argue that the orthodox account of arbitrariness review in this vein makes some untenable assumptions about both reviewing courts and agencies as agents. I first argue that agencies are essentially expert systems, composited together from the spectrum of epistemic domains and professional traditions, leaving them uniquely dependent on the very “political” actors who cycle in and out and bring their “political” biases with them as they come and go. Second, I argue that reviewing courts have come to define their own tasks in arbitrariness review in such fantastically ambitious terms that no mortal could possibly discharge those tasks competently. Because of the adversarial processes by which our courts operate, the predicament is made worse as judges must construct law out of the complex statutory materials of today at the same time they must scrutinize the work of ostensibly expert organizations, all while being forbidden from trusting fully the submissions of their litigants. If a rational agency adapts its own behavior to the known biases of reviewing courts, agency learning will simply exacerbate this predicament still further. If we seek more agency responsiveness to reason rightly defined, I argue that reviewing courts must begin devoting more (scarce) cognitive resources to the monitoring of agencies’ behaviors over time. In particular, reviewing courts should encourage agencies to organize themselves in order to learn-by-doing. This will probably entail paying less attention to the separation of law from fact, science from politics, and judgment from justification. But those separations are all matters of degree and in some cases purely fictional.

In this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this trend continues with the ESA as currently structured. In my view, the quantitative demands of listing species, designing recovery objectives, and designating so-called 'critical habitat' are depleting the resources we have put into the ESA because it is an expression of fundamentally qualitative hopes. Thus, the statute is not structured to guide much of the decision-making that is now required, leaving its agents to interpret and implement an Act that diverges substantially from the actual contexts in which it is implemented. If the Fish & Wildlife Service and the NOAA Fisheries Service are to bring these two divergent approaches to conservation into a more productive relationship, they must start by reorganizing themselves to reflect the informational environments in which they operate. This means adapting institutionally to carry out only those conservation actions that are best carried out centrally while distributing the rest of their workload to more localized or non-centralized partners.

In our legal tradition there are permits and there is property and they are like oil and water. The norms, institutions, and agents of one seem antagonistic — even antithetical — to the other. Property is reliable, tangible, and intimately bound up with one’s autonomy, one’s severability from society. Government permissions, by contrast, are fleeting, revocable, and inherently social. They are the mechanism of choice by which individual plans for assets are filtered and reconciled with collective needs. If we are to get around the impasses we have reached today in protecting nature’s composition and function, however, we must strive to better combine permits and property and leave behind exactly the sort of distinctions we now use in differentiating permits from property. In this piece, I argue that our instinctual distrust of lumping property and permits together ought not to inhibit us from exploring why or how permissions and property are comparable. Property rights in our legal system are bi-modal: they secure privileges, powers, and immunities as against other agents within a legal jurisdiction while simultaneously doing so separately against the agents of that legal jurisdiction. Ownership works its magic in part by securing to owners a subordinate form of sovereignty: standard, recognizable forms of dominion that order behaviors without the need for constant recourse to fine print. And property’s bimodality — its nature as right in rem and as right against government — invariably chills discussions of making government permissions more “like” property. Modeling Endangererd Species Act (ESA) habitat permissions after property, however, might paradoxically empower our government agencies to protect more habitat more effectively over the long term and at broader scales, in good part because doing so could: (1) simplify the mechanics of creating, adjusting, and reordering these managerial permissions; (2) enhance market and non-market actors’ capacities to assess, compare, and benchmark their own (often quite disparate) conservation actions and plans; and (3) better standardize the risks being shifted by the permissions the government has created. Given our diversity of owners and regulators, the core challenge we face in the looming crisis of habitat loss and disturbance is enabling and prompting broader-scale cooperation. The ESA permissions that the government has been generating are, in a nutshell, too small, too customized, too opaque, and too bound up with the highly imperfect information that happens to be available at their origination. If they were modeled to function more like property, they would be more standardized, more recordable and searchable, more legally explicit, and likely more interchangeable and exchangeable as such.

Property is surely among the U.S. Constitution's principal objects of protection. As a right, though, property is jurisdictionally complex. The underlying law defining property can always change, making the constitutional protection of property inherently indexical, like the words "here" and "now." Not surprisingly, the factors and tests the Supreme Court employed throughout the twentieth century not only failed to capture an essence of constitutional property, they failed to guide legal actors on what should be protected to owners against official action. Without some broader unity of purpose, however, the interpretive diversity stemming from this lack of guidance is going to waste. It is depriving owners of their security but is not contributing to any deeper, more meaningful consensus on property as an institution. If we are serious about leaving future generations their due, this ought to change and change quickly. Ultimately, I argue that constitutional property, perhaps more than other basic rights, demonstrates the utility of viewing rights as placeholders-social expressions of confidence in the right holder's judgment within the confines of their right(s) - but not as trumps over social coordination or planning. A more probabilistic and institutionally informed approach to the content of constitutional property could, I argue, help future generations avoid the traps we now know exist in rights adjudication. To that end, I suggest some (modest) methodological improvements in judicial opinion writing as a discrete domain of practical reason.