Ecology and procedure in the history of ecosystem management

A while ago we noted a review of James Skillen's book on the US Bureau of Land Management. Now American Historical Review has a review by Leisl Carr Childers of Skillen's latest book, Federal Ecosystem Management: Its Rise, Fall, and Afterlife (University Press of Kansas, 2015). Childers writes:

Divided into two parts and featuring three case studies, Federal Ecosystem Management examines the historical contexts of ecological science and public administration from which ecosystem management emerged in the 1960s and 1970s and analyzes its implementation during the George H. W. Bush and William J. Clinton presidential administrations. According to Skillen, the National Environmental Policy Act (NEPA, 1969) and the Endangered Species Act (ESA, 1973) formed the cornerstones of ecosystem management. These legislative mandates did not systematize ecosystem management; rather, they allowed federal land management agencies to implement two competing versions of the paradigm. Ecosystem management, undergirded by the ESA, focused on achieving substantive goals that married ecosystem protection with resource development and provided a dynamic process through which land managers could respond to the constantly shifting complex of ecological systems by continually adapting their management plans to reach a specific goal. In contrast, ecosystem management relied on NEPA and concentrated on achieving procedural goals by using scientific assessment and open, democratic deliberation. In this version, gathering scientific information and using public input to shape management decisions continued to ensure sustained yield in natural resource development.

Yet without a clear legislative mandate to guide the process, the application of both versions of ecosystem management was as varied as the missions and cultures of the land management agencies that employed them. In case studies on the Greater Yellowstone Ecosystem, where the Forest Service and National Park Service first attempted collaborative projects that utilized the paradigm, and the Northwest Forest Plan and the Interior Columbia Basin Ecosystem Management Project, which emphasized the substantive and procedural versions of the paradigm respectively, Skillen deftly demonstrates the political difficulties surrounding the actual implementation of ecosystem management. In no context was either version of the paradigm truly operational, and the tension between the two variations has perpetrated increasing political polarization. Nevertheless, Skillen leaves readers with the sense that despite its failure, the basic tenants of ecosystem management remain.

Bhopal Digital Archive

Mitra Sharafi recently posted on the digital archive created by her and others at the University of Wisconsin on the 1984 Bhopal disaster in which lethal gas leaked from the local Union Carbide plant and killed 15,000 to 25,000 people. The archive is centered on documents collected by legal scholar Marc Galanter, who was involved in civil litigation against the company. The archive explains the basic legal chronology:

Bhopal is frequently referred to as the world’s worst industrial disaster. The leak followed a period of reduced maintenance and neglect of safety systems at the plant.

The arrival in Bhopal of American lawyers led to the filing of hundreds of lawsuits against the American parent company, Union Carbide Corporation (UCC), in the United States. The Indian Parliament passed the Bhopal Act, designating the Government of India (GOI) as the exclusive representative of the victims. The GOI brought filed suit in US federal court on April 8, 1985. The many American cases were consolidated for pre-trial proceedings in the federal district court for the Southern District of New York. The case was assigned (by lot) to Judge John F. Keenan, at the time a relatively junior judge. Union Carbide moved to dismiss on grounds of forum non conveniens—i.e., that the case could more appropriately be tried in India.

The Court allowed discovery on matters limited to the question of where the case should proceed. The parties submitted briefs and supporting material and presented oral arguments. Judge Keenan granted the defendant’s motion to dismiss subject to some conditions, which Union Carbide accepted after modification by the Court of Appeals.

The case was re-filed in India in the District Court in Bhopal on Sep. 5, 1986. On Dec. 17, 1987, that court ordered preliminary compensation of Rs. 350 crores (then equal to about 25 million dollars). Union Carbide appealed to the High Court of Madhya Pradesh, which affirmed the order for preliminary relief, with modifications, reducing the amount of Rs. 250 crores. UCC then appealed to the Supreme Court of India. In February 1987, while the appeal was pending in the Supreme Court, UCC and the GOI reached a settlement, under which UCC paid the Government of India $480 million in dollars.

The GOI set up tribunals to determine the compensation to be paid to claimants. The tribunal process extended over more than 15 years. Because the value of the Indian rupee fell from roughly 13 to the dollar in 1987 to 45 to the dollar in 2004, the GOI ended up having a considerable residue (over $300 million) after paying the victims. In 2004 the Supreme Court ordered the remaining funds to be paid out pro rata to all those who had been compensated.

Many in India remain convinced that the culprits were let off too easily in light of the comparatively low damages payment and the absence of UCC’s chairman, Warren Anderson, from the trial that convicted his Indian subordinates.

The history of procedure and environmental law

As my colleague Issi Rosen-Zvi often reminds us, the issue of lawyer's fees, and procedural rules more generally, have major effects on substantive outcomes. History, it seems, bears him out, as over at Legal Planet Jonathan Zasloff recently posted on the connection between developments in civil procedure and the famous Mono Lake Case:

How was the Mono Lake Committee able to assemble the resources to bring a lawsuit against the powerful Los Angeles Department of Water and Power?

At one level, the answer is obvious: it found a Sugar Daddy, in this case, the international law firm of Morrison & Foerster, which according to John Hart’s fine book Storm Over Mono, agreed to contribute $250,000 of attorney time to the case — nearly $1 million in today’s money. But this, of course, begs the question of why MoFo agreed to put in that much money. (And of course, the case wound up costing far more).... 

I am still looking into this, but I cannot help but suspect that California Code of Civil Procedure 1021.5 has something to do with it. That provision is familiar to most California lawyers: it allows fee-shifting “in any action which has resulted in the enforcement of an important right affecting the public interest.”

That, at any rate, would explain things: MoFo didn’t take the case pro bono: it took it on contingency, gambling that it would get its attorneys’ fees if it prevailed. It might even get a “multiplier,” i.e. more than its attorneys fees, if the case was especially hard, which it was.... 

And when did 1021.5 come into effect? January 1, 1978, the year after it was enacted (as is standard under state law), and just when the Mono Lake Committee was about to give up. Just in time.

...the case is seen as coming out of the environmental movement of the late 60’s and early 70’s, but if MoFo had been approached even five years earlier, the whole thing might have collapsed.

Procedure and environmental history

A little while back Liz Fisher gave an interesting paper at a conference at TAU Law on how courts in New South Wales have approached judicial review of environmental impact assessments. My colleague Issi Rosen-Zvi, commenting on the paper, related Fisher's discussing of Australian courts' manipulation of the law/fact distinction to a centuries-long phenomenon of courts arrogating power to themselves (and taking it away from juries and administrative agencies) by casting questions as ones of law rather than of fact.

Rosen-Zvi's comment is a reminder that current debates over procedural issues such as standing, scientific evidence, class action lawsuits, and the like not only hold great importance for today's environmental law, but have a long history behind them, a history tied up in politics and power struggles over (among other things) which institutions, social classes, professional groups, etc. get to make decisions of environmental import.

William Hogarth, The Bench (1758)