Sarah Peterman*
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Introduction
Confusion over what damages are recoverable as natural resource damages (NRD) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and other federal statutes abounds, giving credence to the oft-repeated phrase that “CERCLA is not a model of legislative clarity.”[1] Among other things, confusion appears in discussions among the Department of the Interior, legislators, and courts regarding the recoverability of cultural resource damages as NRD under CERCLA. But the statute and caselaw are clear. As demonstrated here, CERCLA establishes that injuries to cultural resources,[2] no matter how they are described, are not recoverable as NRD.
Mount Rushmore in western South Dakota is an example of a resource with cultural significance. Photo credit to Nell Green Nylen.
Background on NRD
CERCLA imposes liability for cleanup and response costs on owners and operators of facilities where hazardous substances were disposed of or released. The two primary purposes of CERCLA are “to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.”[3] In addition to these cleanup and response costs, CERCLA may also impose liability for NRD—damages based on injuries to natural resources. In fact, several federal statutes provide for the recovery of NRD, including the Clean Water Act (CWA),[4] the Oil Pollution Act of 1990 (OPA),[5] the National Marine Sanctuaries Act (NMSA),[6] the Park System Resources Protection Act (PSRPA),[7] and CERCLA, which is the focus of this Article.[8]
Natural resources within the meaning of CERCLA invoke geological and biological entities—“land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources” that belong to, are managed by, are held in trust by, or pertain to or are controlled by the United States, state or local governments, or Indian tribes.[9] NRD claims arise from injuries to such resources from releases and threatened releases of hazardous substances. Under CERCLA’s NRD scheme, owners, operators, arrangers, and transporters can be liable for “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from [a release of hazardous substances].”[10] That is, NRD are calculated by adding the cost of restoring the injured resource, compensation for the interim loss of use of the resource from injury to restoration, and the cost of assessing the damages.[11]
Natural resources include land, wildlife, biota, and water. Examples include the Yellowstone River and environs in Yellowstone National Park, Wyoming, and a garter snake at Point Reyes National Seashore, California. Photos credit to Nell Green Nylen.
Private parties may not bring suit for NRD recovery. CERCLA does not allow private parties to recover damages for injuries to natural resources held in trust by federal, state, or tribal governments, nor does it allow federal, state, or tribal trustees to recover damages for injuries to private property or private interests.[12] “[D]amage to private property—absent any government involvement, management or control—is not covered by the natural resource damage provisions of [CERCLA].”[13] Instead, NRD liability flows to the trustees of the natural resources: the United States, and the individual states, “for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State,” and Indian tribes “for natural resources belonging to, managed by, controlled by, or appertaining to such tribe.”[14] A government or tribe’s ownership, management, control, or trusteeship over the resource is a question of fact and law.[15]
Are Injuries to Cultural Resources Recoverable?
One question that arises is whether injuries to cultural resources are compensable as NRD under CERCLA. At the very least, it is clear that unlike some of the federal statutes that include NRD recovery schemes, CERCLA’s definition of “natural resources” does not specifically reference cultural resources. That is, of the five federal statutes that provide for the recovery of NRD—the CWA, OPA, NMSA, the PSRPA, and CERCLA—both the NMSA and the PSRPA provide for recovery for injuries to natural resources that specifically include “non-living,” or “cultural” resources.[16] CERCLA, OPA, and the CWA do not.
In light of the broad resource definitions in the NMSA and the PSRPA, the exclusion of reference to “non-living” or “cultural” resources in CERCLA’s resource definition suggests that injuries to cultural resources, however characterized, are not recoverable under CERCLA. The OPA and CWA define “natural resources” as does CERCLA—only in the context of water, air, geological, and biological resources, and without any reference to “cultural resources.”[17] By comparison, the NMSA defines protected marine resources as including any “nonliving” resource that “contributes to the conservation, recreational, ecological, historical, educational, cultural, archeological, scientific, or aesthetic value of a sanctuary.”[18] Similarly, the PSRPA broadly defines protected resources in the National Park system as any “living or non-living resource,” the latter of which has been interpreted to include cultural resources.[19] Given that only five federal statutes provide for NRD recovery, that the NMSA’s resource definition includes reference to “nonliving” resources and “cultural” values, and that the PSRPA’s resource definition likewise includes reference to “non-living” resources, which have been interpreted to include cultural resources, the fact that CERCLA’s resource definition excludes reference to “non-living” or “cultural” resources suggests that CERCLA does not establish recovery for injuries to cultural resources, regardless of how such injuries are characterized.
The Department of the Interior (Department or DOI) appears to have confirmed this fact. But in so doing, the Department has generated confusion by attempting to distinguish between cultural resources and cultural services, which seems to be a distinction without a practical difference. In 1994, the Department promulgated regulations for assessing NRD under the CWA and CERCLA.[20] In the “comment” and “response to comment” section of the preamble to its final regulations, the DOI sowed confusion regarding whether injuries to cultural resources are recoverable as injuries to natural resources under CERCLA.
An archaeological resource: Pueblo Granaries, Nankoweap Trail, Grand Canyon National Park, Arizona. Photo credit to Al_HikesAZ.
First, the Department stated that “archaeological” and “cultural” resources are not “land, fish, wildlife, biota, air, ground water, drinking water supplies, or other such resources” such that archaeological and cultural resources “do not constitute ‘natural’ resources under CERCLA.”[21] Unfortunately, the Department did not stop there. The DOI went on to instruct that although archaeological and cultural resources are not “natural resources” under CERCLA, federal, state, and tribal trustees may “include the loss of archaeological and other cultural services provided by a natural resource in a natural resource damage assessment.”[22] The DOI then tried to provide an example of a scenario in which the loss of an archaeological or cultural service provided by a natural resource might be recoverable as NRD:
For example, if land constituting a CERCLA-defined natural resource contains archaeological artifacts, then that land might provide the service of supporting archaeological research. If an injury to the land causes a reduction in the level of service (archaeological research) that could be performed, trustee officials could recover damages for the lost service.[23]
This example has done little to clarify or explain how recovery for “the loss of archaeological and other cultural services” (which DOI suggests is provided for under CERCLA’s NRD scheme) is different than recovery for injuries to archaeological and cultural resources (which DOI acknowledges that CERCLA does not allow).
Since the 1994 regulations, the Department has continued to publish conflicting information about the recoverability of cultural resource damages as NRD under CERCLA. For example, in 2003 the National Park Service, one of DOI’s eight bureaus, published its Damage Assessment and Restoration Handbook (Handbook) to provide guidance for damages assessment within the National Park Service.[24] The Handbook largely addresses NRD assessments under the PSRPA, and the National Park Service confirms therein that resources protected by the PSRPA include both natural resources and, specifically, “cultural resources.”[25] The Handbook contains a comparison of recoverable NRD under the PSRPA, CERCLA, and OPA. According to the National Park Service, while CERCLA and OPA only protect natural resources and associated services, the PSRPA “extends to cultural resources (e.g., historic sites, structures, objects, and landscapes) and physical facilities (e.g., signage, buildings, docks, and roads), and their associated services.”[26] Thus, as stated the Handbook, the NPS and DOI frankly acknowledge that the PSRPA “covers a broader range of resources” than CERCLA and OPA, which “do not necessarily address injuries to cultural resources and park facilities.”[27]
Cultural resources include historic sites like the Fort Lancaster State Historic Site in Crockett County, Texas. Photo credit to J. Stephen Conn.
On the other hand, DOI also persists in maintaining that cultural resource damages are recoverable under CERCLA by articulating a distinction between recovery for cultural resource damages and recovery for the loss of cultural services provided by damaged natural resources. In 2008, the Department amended certain parts of the NRD assessment regulations set forth in the Code of Federal Regulations. In the comment and response to comment section of the preamble, the Department said, “[c]ultural, religious, and ceremonial losses that rise from the destruction of or injury to natural resources continue to be cognizable.”[28] Again, however, there is no explanation offered to aid in understanding the practical difference between recovery for injury to cultural resources and recovery for injury to cultural services provided by a damaged natural resource. One wonders how the loss of a cultural service provided by a natural resource could ever differ economically or practically from the loss of a cultural resource.
How does injury to a cultural service (such as a cultural or spiritual connection with a place) provided by a natural resource differ from injury to a cultural resource? Sun rays in fog, Olympic National Park, Washington. Photo credit to Nell Green Nylen.
The DOI’s confusing distinction appears to have had little success in convincing lawmakers and practitioners that there is a meaningful difference between the two theories of recovery. In 1996, various “Industry Petitioners” challenged the 1994 DOI regulations for NRD assessments before the D.C. Circuit in Kennecott Utah Copper Corp. v. U.S. Department of the Interior.[29] There, the industry petitioners challenged DOI’s instructions in the preamble that an NRD assessment may include the archaeological and cultural services provided by a natural resource, pointing out that archaeological and cultural resources are conspicuously absent from CERCLA’s definition of “natural resources.”[30] Unfortunately, the court held that the issue was not ripe for review. However, in so holding, the court characterized DOI’s instructions as allowing for “recovery for injury to non-natural resources” and not, as DOI would have it, as allowing for recovery for injury to archaeological or cultural services provided by a natural resource.[31]
Furthermore, in Coeur D’Alene Tribe v. Asarco, Inc., the District Court for the District of Idaho determined that “cultural uses of water and soil by [the plaintiff Indian tribe] are not recoverable as NRD.”[32] That is, the court held that cultural services supported by the water and soil resources at issue were not recoverable as NRD. Also, in its analysis of whether various plaintiffs were “trustees” of the resources sufficient to have standing to pursue NRD claims, the court was likewise not persuaded by the tribe’s argument that the natural resources “appertain[ed] to” it.[33] The court noted that,
While the Tribe may use certain natural resources in the exercise of their cultural activities, such use does not rise to the level of making a natural resource “belong or be connected as a rightful part or attribute” for purposes of trusteeship analysis.[34]
Legislative history also suggests that Congress did not intend for CERCLA to provide for recovery for injury to cultural resources. In 1995, U.S. Representative Elizabeth Furse (D-Ore.), during a hearing of the Commerce, Trade, and Hazardous Materials Subcommittee, introduced an amendment to add to CERCLA a provision that would allow for the “recovery of NRD for so-called non-use values.” [35] In language similar to DOI’s sometimes-used guidance that NRD assessments may include losses of archeological or cultural services provided by a resource, the amendment was described as providing for compensation under CERCLA’s NRD provisions for the “intangible . . . aesthetic, cultural and religious values attached to natural resources that have been destroyed or damaged by toxic contamination.”[36] Representative Furse further explained that without the amendment she proposed, CERCLA would not allow for recovery of damages accounting for the cultural importance of an injured natural resource.[37] By way of example, she described Indian tribes that rely on salmon from the Columbia River for important tribal ceremonies. As explained by Representative Furse, the amendment was necessary to allow for compensation to Indian tribes for loss of that cultural ceremony stemming from injury to the salmon or the salmon’s habitat.[38]
Salmon are natural resources that provide cultural services for the Swinomish Tribe. Swinomish Fleet Blessing and First Salmon Ceremony, Skagit County, Washington. Video credit to SwinomishTribalMedia.
However, this cultural resource amendment to CERCLA was defeated. Representative (now Senator) Michael Crapo (R-Idaho) opposed the amendment, suggesting that it was tantamount to including a punitive damages provision in CERCLA, since recovery for injuries to such non-use values went “beyond” recovery for actual damages, remediation, clean-up, and restoration.[39] Representative Michael Oxley (R-Ohio) agreed that the proposed amendment added an opportunity for “punitive” recovery to CERCLA and was not directed toward achieving cleanup or restoration of a natural resource.[40] Representative Furse’s amendment was not approved, and did not proceed out of committee. Thus, evidence suggests that Congress did not intend for CERCLA to provide recovery for injury to cultural services as NRD.[41]
Notwithstanding that CERCLA’s resource definition excludes reference to “non-living” or “cultural” resources, the challenge to the 1994 regulations in Kennecott, the cultural resource damages amendment’s defeat in 1995, and the 2003 Couer D’ Alene decision holding that injuries to cultural services are not recoverable as NRD under CERCLA, with the 1994 assessment regulations and the 2008 amendments to the same, DOI continues to “read into” CERCLA a mechanism for NRD recovery for cultural injuries. But DOI’s attempt to create an exception allowing for recovery of cultural resource damages when couched as lost cultural services provided by an injured natural resource splits too fine a hair. It is unpersuasive and confusing. And practically, it is a distinction without a difference.
As demonstrated by the courts and lawmakers discussed herein, there is no meaningful, practicable difference between the loss of a cultural resource and the loss of a cultural service provided by a natural resource; these losses are the same, and are not divisible or different. While the Department may continue to maintain that losses of “cultural services” can be recovered, as discussed herein there is ample evidence to suggest otherwise. Moreover, CERCLA’s NRD provisions contain no definitions or passages indicating that damages to “cultural resources” or “cultural services” are compensable as NRD, and this author has likewise located no federal or state cases holding that injuries to “cultural resources” or “cultural services” are recoverable as NRD under CERCLA.[42]
A Superfund cleanup in progress, GE/Housatonic River Site, Massachusetts. CERCLA is primarily directed at cleaning up contaminated sites. Photo credit to CorpsNewEngland.
As has often been repeated, CERCLA’s primary purposes are to ensure timely and effective cleanup of waste disposal sites, and to ensure that the parties responsible for such waste bear the costs of restoration and remediation.[43] In fact, the Department’s 2008 amendments to the NRD assessment regulations were designed to emphasize restoration of resources over monetary damages.[44] CERCLA notably excludes “cultural resources” from its definition of natural resources. Therefore, cultural resource damages cannot be recovered as NRD, regardless of whether couched as losses of cultural services provided by a natural resource. These losses are the same, and until and unless Congress amends CERCLA, cultural resource damages are not recoverable.
* Sarah Peterman is a senior associate in the Environmental Law Department at Farella Braun + Martel LLP. Her practice is focused on environmental and natural resources litigation and counseling.
[1] Coeur D’Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094, 1108 (D. Idaho 2003).
[2] The analysis and arguments presented herein likely also establish that injuries to archaeological resources and services are not recoverable under CERCLA; however, that is the topic for another article, as this Article focuses on whether injuries to cultural resources and services are recoverable as NRD under CERCLA.
[3] Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986).
[4] 33 U.S.C. § 1321(f)(4) (2006).
[5] 33 U.S.C. § 2702(a), (b)(2) (2006).
[6] 16 U.S.C. § 1443(a)(1) (2006).
[7] 16 U.S.C. § 19jj (2006).
[8] 42 U.S.C. § 9607 (2006). CWA, OPA, NMSA, PSRPA, and CERCLA are not to be confused with the National Historic Preservation Act, 16 U.S.C. §§ 470–470X-6 (2006), which does not provide for recovery of NRD. Some states have separate laws authorizing recovery of NRD as well. See, e.g., New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1245 n.31 (10th Cir. 2006); Legal Authority, N.M Off. Nat. Resources Tr. (Sept. 1, 2009); Natural Resource Damages, Dep’t Envtl. Conservation (last visited Feb. 4, 2011); Natural Resource Restoration, Dep’t Envtl. Prot. (Nov. 29, 2005).
[9] 42 U.S.C. § 9601(16) (2006).
[10] 42 U.S.C. § 9607(a), (a)(4)(C) (2006).
[11] Note that CERCLA NRD assessments may include recovery for “non-use” values as well. 43 C.F.R. § 11.83(c)(1) (2010) (“The compensable value can include the economic value of lost services provided by the injured resource, including both public use and nonuse values.”); Notification and Coordination with Natural Resource Trustees, U.S. Envtl. Prot. Agency (Oct. 1, 2010).
[12] Coeur D’Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094, 1115 (D. Idaho 2003).
[14] 42 U.S.C. § 9607(f)(1) (2006); see 42 U.S.C. § 9607(f)(2)(B) (authorizing state governors to designate state officials, including local municipalities, to act as trustees for the purpose of recovering NRD).
[15] Coeur D’Alene, 280 F. Supp. 2d at 1115.
[16] The author is not taking a position on whether injuries to cultural resources are compensable under NMSA and PSRPA.
[17] 33 U.S.C. § 2701(16) (2006); 43 C.F.R. § 11.14(z) (2010).
[18] 16 U.S.C. § 1432(8) (2006) (emphasis added).
[19] 16 U.S.C. § 19jj(d) (2006).
[20] See 43 C.F.R. §§ 11.10–11.93 (2010); Natural Resource Damage Assessments, 59 Fed. Reg. 14,262, 14,262 (Mar. 25, 1994) (to be codified at 43 C.F.R. pt. 11).
[21] Natural Resource Damage Assessments, 59 Fed. Reg. at 14,262.
[22] Id. at 14,269.
[23] Id.
[24] See, generally, National Park Service, Damage Assessment and Restoration Handbook (2003).
[25] Id. at 1.
[26] Id. at 6 (emphasis added).
[27] Id. at 7.
[28] Natural Resource Damages for Hazardous Substances, 73 Fed. Reg. 57,259, 57,264 (Oct. 2, 2008).
[30] Id. at 1222.
[31] Id.
[32] Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094, 1107 (D. Idaho 2003).
[33] Id. at 1117.
[34] Id. (citing Webster’s New Collegiate Dictionary 54 (1979)).
[35] Superfund Legislation: Hearing of the Commerce, Trade and Hazardous Materials Subcomm. of the H. Commerce Comm., 104th Cong. (1995).
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] The author additionally located no federal or state cases awarding NRD under CERCLA for cultural uses, cultural losses, or cultural values.
[43] Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986).
[44] Natural Resource Damages for Hazardous Substances, 73 Fed. Reg. 57,259, 57,260 (Oct. 2, 2008).
Copyright 2011 Sarah Peterman. All rights reserved.
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I might not be an environmentalist but it seems that the author's concern is the environment which the main focus is to clean up the environment. The law sometimes make us a confusion but if it is explained well, it will be appreciated by the people. But I wonder how it will work with CERCLA.
Posted by: Quinto Aleman | June 28, 2014 at 07:26 AM
I am not excellent for this. But maybe CERCLA has a valid reasons in imposing such regulations.
Posted by: Shepley Sells | June 25, 2014 at 07:07 PM
Thanks for sharing this article. This is truly a worth to read.
Posted by: Stutes Heinrich | June 25, 2014 at 12:40 AM
we are having a simiar debate over here in the UK. Our main concern is mineral extraction and it's affect on the environment, and future environment impacts. The bottom line is that when you change one thing something else changes also.
Posted by: Skip Hire Walton On Thames | July 25, 2012 at 12:25 AM
The author’s argument for lack of legislative intent is based on the views of lawmakers who interpreted the statute 15 years after it was originally passed, not the intent of the legislators who actually passed CERCLA. It can be argued that the list of resources protected by CERCLA is not limitative and therefore includes under resources related to those enumerated in the statute, giving rise to the protection of cultural resources. This seems to be a more reasonable approach than the DOI’s unintelligible distinction between cultural resource and cultural service.
Posted by: Luis Pellerano | November 08, 2011 at 02:56 PM
Does that fact that NRD assessments can include recovery for “non-use” values, pursuant to 43 C.F.R. § 11.83(c)(1) (2010) (“The compensable value can include the economic value of lost services provided by the injured resource, including both public use and nonuse values") give any support to the fact that DOI may have intended for these values to actually be recoverable?
Posted by: Anuradha Sivaram | November 07, 2011 at 12:27 PM
Statutory drift is no doubt a concern, but it seems unfortunate that CERCLA does not approach a more holistic evaluation of natural resource damages. Original intent is one thing, desirable efficacy is another.
Posted by: Cody Lonning | October 20, 2011 at 11:07 AM
Peterson's article drew my attention to an interesting new issue. Ultimately I agree with Peterson's frustration that there is no meaningful difference to be drawn between cultural resources and cultural services in the context of recovery under CERCLA. I think she is correct that this distinction does not track any economic or practical difference between the loss of a cultural service provided by a natural resource could and the loss of a cultural resource.
However, I wonder if there is some theoretical distinction that the DOI was aiming at, but failed to clearly articulate. One of the examples of a cultural service in the article involves a tribe's loss of a cultural ceremony involving salmon. The underlying idea might be that people living on reservations should be provided with protection that enables them to continue living with and off the land and practicing their culture to the extent that it relies upon natural resources, but that people are not entitled to protection of cultural resources when those resources are of historical cultural significance, but do not continue to play an active role in people's ability to sustain their culture. Still this distinction might not draw a clear line in some cases and would still be subject to Peterson's criticisms.
Posted by: Lisa | April 08, 2011 at 11:19 AM
The author states that "NRD are calculated by adding the cost of restoring the injured resource, compensation for the interim loss of use of the resource from injury to restoration, and the cost of assessing the damages."
While I agree that cultural significance is not sufficient to bring a resource within the scope of CERCLA, it is unclear why damages could not be recovered for loss of cultural use in the same way that damages are awarded for loss of other uses. The statute does not appear to include any language specifically excluding cultural uses from the class of uses for which damages can be awarded.
To me, this seems to be what DOI is getting at with its regulations. Cultural uses are not sufficient to create trusteeship under CERCLA, as the court ruled in Coeur D’Alene. However, if the tribe were able to establish trusteeship through other non-cultural means, perhaps it should have been able to recover for the loss of cultural uses. To use DOI's framework, CERCLA did not recognize the soil and water as "cultural resources" of the tribe. But if the tribe could show that these were natural resources within its trusteeship, nothing in CERCLA bars recognition of "cultural services" derived therefrom.
I am not an expert in this field, but I believe that the author does not adequately explore the possible distinctions between "cultural resources" and "cultural services." Specifically, that while cultural value does not bring a resource within the scope of CERCLA, perhaps cultural uses should be a factor to consider when assessing damages.
Posted by: Sam | April 07, 2011 at 04:24 PM
The article makes a good case for why CERCLA doesn't allow recovery for cultural resource damages. But I wonder why CERCLA should or should not allow such recovery if it is already allowed under other acts. Maybe there is a good reason (perhaps CERCLA would allow cultural resource damages in more situations), but I would like to hear it.
Posted by: Cody | March 17, 2011 at 03:07 PM
Peterson presents a thought-provoking article on whether there exists any meaningful difference between the loss of a cultural resource and loss of a cultural service provided by a natural resource. I, for one, fail to see any significant difference.
Posted by: Nathan | March 10, 2011 at 10:31 AM
The author makes a compelling case that NRD are in fact not recoverable under CERCLA.
One area of potential inquiry that was left uncovered, is the legal relevance of DOI's interpretation that cultural services damages are recoverable. The courts' post-Chevron jurisprudence regarding deference to agency interpretations has been somewhat muddled, but one thing that is clear is that such agency interpretations are entitled to deference where the agency is given primary interpretive authority for the statute. And while the ability to engage in notice & comment rule-making is an indicia of such authority, it is not conclusive. (See Auer & Mead.) However, it is not clear that DOI has been granted primary interpretive authority for CERCLA, as other agencies, such as the EPA, have the ability to issue rules interpreting CERCLA. As such, DOI's interpretation, even though issued through notice & comment rulemaking, may not be entitled to any deference by a court that actually decides this issue on the merits. Given the distinct line of jurisprudence used to evaluate agency interpretations, this would have been a valuable addition to the piece.
As a matter of statutory interpretation, it also seems that NRD should not include cultural resources. The statutory language of CERCLA - unlike other statutes cited by the author - does not expressly encompass such harms. While plaintiffs & the agencies might try to advance novel legal arguments as to why these damages should be covered, the author's analysis seems to indicate these arguments will fail.
Increasingly environmental law-creation has stagnated, and instead new law is made only through extension of existing statutory frameworks through litigation or regulation (climate change is a good example of both). However much one might agree with the substantive merits of the goals environmental plaintiffs are pursuing, the strategy of continually advancing and expanding the scope of what were fairly limited statutory schemes, is harming the environmental movement itself. Rather than directing our energies to developing new statutory strategies for dealing with the most pressing environmental problems, or creating an environmental ethic which seeks expressly to advance human interests (and is therefore more broadly politically palatable), the environmental movement is caught in a series of skirmishes on side issues - of cultural resource damages, technical NEPA violations, & field mice protection - which ultimately weaken the movement as a whole.
Perhaps a few more losses in court on these side issues will get us to refocus on where our true interests lie.
Posted by: Tosh | March 09, 2011 at 02:11 PM