Grown From Within

We shall never achieve harmony with land, any more than we shall achieve justice or liberty for people. In these higher aspirations the
important thing is not to achieve, but to strive. The problem, then, is how
to bring about a striving for harmony with land among a people many of
whom have forgotten there is any such thing as land . . . When we say
“striving,” we admit at the outset that the thing we need must grow from
within. No striving for an idea was ever injected wholly from without.
— Aldo Leopold, Round River

A few years ago, on the outskirts of Austin, Texas, a real estate sign stood by the side of the road, unremarkable in every respect except one. Much of the sign was taken up with the usual details: 10 acres for sale, $1.5 million, a phone number for the real estate agent. But in big, capital letters was a most unusual bit of information: NO BIRDS.(1)

The vegetation on the property, it turned out, was unsuitable for two species of birds, the black-capped vireo and the golden-cheeked warbler, both listed under the Endangered Species Act.(2) The birds inhabit an area west of the city known as the Balcones Canyonlands, a jumble of canyons whose rippling walls reminded early Spanish visitors of the tiered balconies of their own cities, hence the name, Balcones. The land gleams with rivers, springs, and dam-made lakes, in amongst rolling hills covered with ashe junipers and oaks.

In the early 1980s, the savings-and-loan boom turned some of that land into housing developments and shopping centers, shrinking the birds’ habitats in the process. The subsequent savings-and-loan bust put a halt to that transformation and gave the birds some breathing room. In 1988, the Nature Conservancy, city officials, and local developers and environmentalists joined forces to find a way to save the birds before the cycle started anew. If successful, they would avoid the spectacle of a resurgent real estate market running headlong into the Endangered Species Act. Instead, Austin would be prepared to accommodate economic growth while protecting the birds’ habitats, as the law demanded. The effort was known as the Balcones Canyonlands Conservation Plan, or BCCP.

The BCCP stumbled along for several years. According to the team of scientists asked to study the matter, the species’ local populations needed huge chunks of land to remain viable. Presented with the team’s recommendations, developers and environmentalists immediately began squabbling over how much land the region could afford to set aside, and who was going to pay the bills. As the two sides battled toward an acceptable compromise, the scientists watched their carefully planned preserve design shrink almost in half.

The effort showed signs of life in 1991, when the federal government announced plans to create a wildlife refuge in the western part of Travis county; and one year later, the city of Austin passed a $22 million bond issue to help buy preserve land. But in 1993, a $40 million bond election offered by the county went down to defeat, and the BCCP nearly collapsed. Finally, this past spring, the city and county sent their proposed plan to the Fish and Wildlife Service for that agency’s approval. It called for a 30,000 acre preserve, separate from but complementary to the federal wildlife refuge, to be financed over the next 20 years with almost $100 million of private and public money.

Whether that $100 million will actually save the local populations of the vireo and warbler is uncertain. The BCCP has not been warmly received by all the people of the region, drawing more support from urban Austinites than from the rural landowners of Travis and neighboring counties. Yet ask any of those landowner if, in the abstract, they would enjoy having nesting songbirds on their property, it is hard to imagine them saying no. The desire to protect the beauty of the canyonlands and the integrity of its inhabitants is strong among all the people of the Austin region.

That desire has been unable to find a viable means for expression, however. Without the Endangered Species Act, it certainly wasn’t enough to prevent housing develop ments and shopping centers from threatening the birds’ populations. A few more years of the savings-and-loan boom, and there would indeed have been “NO BIRDS.” With the Endangered Species Act, the birds were protected on paper, but the demands of the law were so high that the birds became a liability, not an asset. Land without suitable habitat — “NO BIRDS” property — commanded a premium in the real estate market. Any landowner with suitable habitat was out of luck, although some tried to get lucky by bulldozing their land or finding other means for making it unsuitable.

“NO BIRDS” with the ESA, “NO BIRDS” without the ESA — the story of Austin is one of environmental policy swinging between extremes. That story has been repeated in many other places and with many other laws. Indeed, over the past twenty-five years, environmental policy has traveled back and forth across the spectrum, unable to spend much time in any one place. Pushing policy toward one extreme breeds the conditions for an eventual backlash, as evidenced by recent sessions of Congress.

These latest swings in environmental policy are part of what William D. Ruckelshaus has decried as

. . . yet another phase in a dismaying sequence. The anti-environmental
push of the nineties is prompted by the pro-environmental excess of the
late eighties, which was prompted by the anti-environmental push of the
early eighties, which was prompted by the pro-environmental excess of
the seventies, which was prompted . . . but why go on? The [104th]
Congress may believe that it is the vanguard of a permanent change in
attitude toward regulation, but unless the past is no longer prologue, then
as sure as I am standing here, the pendulum will swing back, and we will
see a new era of pro-environmental lurching in the future.(3)

“Stopping the pendulum,” as Ruckelshaus puts it, or at least bringing the arc of its swing under control, is thus a matter of crafting environmental policy that is both effective and acceptable, conditions which enhance its stability and longevity.

Finding a policy that is effective and acceptable, stable and long-lived — a policy, in other words, that is sustainable. Sustainability is a concept that is increasingly used, and sometimes abused, in environmental policymaking. The term is usually applied to economic activity as a measure of how that activity affects the functioning or health of ecological systems.(4) An economic system that continually degrades its environment undermines itself by consuming “ecological capital,” and will eventually perish.

A different application of sustainability sheds light on the shortcomings of many environmental policies. Just as a healthy ecosystem can be viewed as a form of capital, so too can a “healthy” political system. One form of political capital is the willingness to be governed by political edict. A political system that generates policies deemed unfair or impossible by a substantial proportion of the populace undermines this willingness, using up political capital. If this deterioration continues unabated, the people governed by those policies will resist or find ways to circumvent them, or seek to replace them with other policies. Eventually, the pendulum will swing.

In contrast, policies deemed fair and attainable sustain a healthy level of political capital, contributing to the stability and effectiveness of those policies. Sustainable policies are not static but do avoid creating the conditions for radical shifts between extremes. Sustainability is thus an important component of the Endangered Species Act and other environmental laws, and should be considered in efforts to reform those laws.

What characteristics make a policy more or less sustainable? Are these characteristics compatible with other desirable characteristics of policy, or do conflicts exist? Are some areas of environmental policy more amenable to sustainability than others? Answering questions like these requires a framework for applying the concept of sustainability to environmental policy; one such framework is developed below. The purpose is to add a dimension to the analysis of environmental policy, not to propose sustainability as the only dimension. Moreover, the framework developed here is not intended to be a prescriptive model, dictating how policy should be formed. Instead, the framework’s value lies in its ability to generate predictions about how sustainable a policy will be, which can then be tested with further empirical research.

Developing a framework for sustainable policy must begin with some simplifying assumptions. In this paper, I consider an example applicable to the problem of developing a sustainable forest policy: habitat protection for the northern spotted owl. This example serves to illustrate what features of forest policy (or other environmental policies) determine its sustainability. Although the example is simple, the framework provided below is more general.

A convenient point of departure is to imagine a scale capable of measuring the extent of habitat protection, starting at the lowest possible level (no protection), ranging through increasingly higher levels (protect occupied habitat, protect all habitat, expand habitat), and peaking at some highest level (return landscape to pre-settlement conditions). Somewhere along this scale, we could draw a line that establishes a duty for a landowner. Landowners are obliged by law to meet that duty as a minimum; above the line, they are free of coercion.

For example, we could draw the line for private landowners at “protect occupied habitat”; without contradiction, we could draw a different line for public landowners, say, at “protect all habitat.” We could also establish an incentives program for encouraging private habitat protection above the line of duty; or the state could facilitate but not finance efforts to protect habitat on private or public land.

A forest policy for protecting the owl would then consist of a combination of duties and/or incentives, such as the following examples:

The Nature Conservancy approach:
– Establish landowners’ rights to protect or modify owl habitat as they choose
– Adopt laissez faire government policy with no mandated duties
– Private parties contract to protect owl habitat

The Conservation Fund approach:
– No private duties to protect owl habitat
– Public duty to achieve some level of protection
– Public funding of owl habitat protection

The Non-Degradation approach:
– Private duty to protect currently suitable owl habitat

The Atone-for-Past-Sins approach:
– Private duty to protect and restore suitable owl habitat

The Wildlands approach:
– Private duty to protect and restore suitable owl habitat
– Public duty to restore public land to pre-settlement conditions

Each of these approaches includes duties that can be located somewhere along the scale; however, the actual level of protection may or may not coincide with the official location of the duty. For example, if no duties are mandated, private parties may still achieve some level of protection through voluntary efforts. Similarly, a private duty to expand owl habitat, if anything short of absolute and inescapable, may fail to produce that level of protection as forestland owners seek ways of ensuring that their land is unsuitable for the owl.

Choosing the best policy from among these and other possible policies depends on what criteria underlie the notion of “best.” One such criterion is sustainability. Finding a sustainable forest policy is easiest when there is a “win-win” solution, or one that immediately benefits everyone. Environmental problems rarely present such opportunities, however, in large part because of their fundamental nature: They are what economists call “externalities,” or costs borne by people who did not consent to bear them. The obvious policy dictate is, Do not impose those costs without consent.(5) For this reason, the traditional approach to environmental policy has consisted of a litany of “do nots”: Do not pollute the air and water; do not dump toxic wastes where they do not belong; do not harm an endangered species; and so on.

Protecting owl habitat can be cast in these terms: Do not adversely modify occupied habitat; do not adversely modify any type of habitat; do not fail to expand habitat; or do not fail to restore land to its pre-settlement condition. The simple way to characterize each of these commandments is as a duty imposed on some party, private or public, intended to further the goal of habitat protection. Duties such as these do not necessarily account for all the components of a habitat protection policy, but they do constitute the core. And fashioning a sustainable policy must then contend with the problem of specifying duties that are deemed fair and attainable.

Lon Fuller, a legal philosopher at Harvard Law School, considered a similar problem in his book, The Morality of Law.(6) He posed the following question: “Under what circumstances does a duty, moral or legal, become most understandable and most acceptable to those affected by it?”(7) His answer consisted of the following three circumstances:

1) The duty arises out of a voluntary agreement among the parties immediately
affected by it; that is, the parties themselves “create” the duty;
2) The duty imposes burdens on each party that are, in some sense, equal; and
3) The duty is potentially symmetric between parties; that is, the identities of the
parties that owe and are owed the duty are potentially interchangeable.

Fuller’s interest was not in the sustainability of law, of course, but his answers to this question identify circumstances that encourage the formation of a sustainable policy. If all three are present to the fullest extent, a policy based on such a duty would be, as Fuller might have put it, “most sustainable.” As the extent to which these circum stances are met decreases, so to does the sustainability of that policy. To gain a better understanding of the relations between these three circumstances and sustainable policy, each is considered in more detail below, followed by a discussion of some potential problems raised by this approach.

Fuller’s first circumstance suggests that forest policy will be more sustainable if whatever duties it imposes arise out of voluntary agreements. The reasons behind this contention are twofold. First, duties that are “injected wholly from without,” to use Leopold’s phrase, may or may not be the ones people would choose for themselves, or those that are “grow[n] from within.” The power of voluntarily assuming a duty lies in the conviction that accompanies its assumption. A duty I believe is fair and attainable is one that I am more likely to bear willingly and forcefully.

The state may have the power to impose a duty of its choosing on me, but it does not, as Michael Sandel has noted, have the power to make me believe in that duty: “Since I can believe only what I am persuaded is true, belief is not the sort of thing that coercion can compel. Coercion can produce hypocrisy but not conviction.”(8) The police power of the state may still play a role, of course, for a voluntary agreement may tap that power as a means of enforcement. But even if they are enforced by the state (or some other central authority), duties will be more sustainable if they are “grow[n] from within.”

Such duties are more likely to be sustainable for a second reason. If duties arise out of a voluntary agreement, those who set the duties are in the best position to evaluate their attainability. Otherwise, the chances increase that the duties will serve a symbolic purpose rather than practicable one. This does not rule out duties with a moral or ethical basis, rather than a narrow utilitarian one; instead, a symbolic duty is one for which attention is lavished on the stated goal of the duty, without sufficient attention to the means for pursuing that goal.

Consider an example Fuller uses, in which he distinguishes the role of a legislator from that of a teacher.(9) A good teacher, he notes, may demand more than students are capable of attaining, but if they fail, the teacher “can, without insincerity or self- contradiction, congratulate them on what they did in fact accomplish.” The legislator should not try to emulate this behavior, however, by passing a symbolic law that demands more than the populace is capable of giving. By doing so, Fuller argues, “the government official faces the alternative of doing serious injustice or of diluting respect for law by himself winking at a departure from its demands.” In either case, the legitimacy of the law is undermined, diminishing its sustainability.

The second circumstance Fuller identifies seems strict but still appealing: The sustainability of policy is enhanced if the burdens of the duties are equally distributed. One way to accomplish this would be to find a common yardstick such as money, and distribute the burden in equal shares as measured by this yardstick. Thus, the second circumstance could be met, it seems, if all parties incur an equal monetary cost.

Whether this arrangement equally distributes the burden, however, depends on the meaning of “burden,” which (in keeping with first circumstance) should be determined by the parties themselves. For example, equal monetary costs imply that money is the appropriate way of gauging burden. A utilitarian would object to this, pointing out that a given monetary cost does not necessarily correspond to an equal amount of disutility for different individuals. Thus, disutility would be an alternate measure of burden.

Even without specifying the exact nature of “burden,” the second circumstance suggests that a forest policy that spreads its burdens among many parties will be more sustainable than one that concentrates its burdens on a few. In most cases, this accords with our notions of fairness. For example, suppose all parties agree that protecting habitat occupied by the spotted owl is an important goal. How should the burden of that protection be distributed? Assigning the entire burden to one class of landowner seems inherently less fair than, say, spreading the burden among private and public landowners.

The last circumstance calls for a symmetry (of sorts) in the nature of the duty. In the context of our example, the northern spotted owl, this condition could be met in the following way. Suppose the “parties immediately affected,” as Fuller puts it, are all forestland owners (private or public), and each owner maintains their property in a variety of age classes, some of which are suitable (but not necessarily occupied) for the owl. An agreement among these parties to create a duty to protect owl habitat could then meet the third condition. At one moment in time, a landowner without owls could enjoy the benefits of a duty to protect habitat that other landowners now bear; at another point in time, their roles might be reversed.(10)

Because each party will, in some way or at some time, bear the duty, the job of creating a sustainable forest policy is made easier. If each party is in a position both to bear the burden and to enjoy the fruits of the duty being formed, each will have an easier time judging the duty’s fairness. (“Put yourself in his shoes,” wrote the British politician Basil Henry Little Hart, “so as to see things through his eyes.”) And because the duty may be borne by anyone, its burdens can be divided among the parties without resorting, as an economist might suggest, to side payments or other compensatory means.

These three circumstances encourage the formation of sustainable policy, then, but they do not guarantee it. More importantly, applying this framework to forest or other environmental policies raises some questions about the framework’s usefulness. Foremost among these is, Why have a policy at all? If sustainability is founded on a set of voluntary agreements, why not turn to the most voluntary of all arrangements, the free market?

If all parties have clearly and completely defined rights, and the costs of enforcing those rights and effecting voluntary trades are zero, then indeed, policy as we think of it has no reason to exist. No striving for harmony need take place, nor any judgement of fairness or estimation of burdens. The “invisible hand” of the market will ensure that harmony exists, and that burdens are fairly and equally distributed.

This perfect-market world is unattainable, of course — but so is the perfect-government world so often invoked by those dissatisfied with market solutions. Neither deus ex machinum is available, which often leaves us in the messy middle: rights unclear or simply undefined, trading through markets or invoking government authority costly and imperfect. In this case, clarifying or creating rights is tantamount to creating a duty, which brings us back to Fuller’s three circumstances.

Allowing the parties themselves to create the duty — that is, clarify or create a new set of rights — leads us to a second question: Will a sustainable forest policy ever have any teeth? It would seem that only the weakest of duties will ever be formed by those who must bear its burdens. On one level, this problem is tempered by the requirement that all parties immediately affected by the duty be engaged in forming it, not just a subset of the parties. For example, those with a stake in protecting the northern spotted owl would be the ones to form the duties of habitat protection, not just landowners with owls on their property.(11) It is also short-sighted to believe that parties will always seek the “easy way out,” so to speak. People who are free to choose may nevertheless choose not to be completely free, for giving up some freedoms can enhance others.

On a second, deeper level, this criticism is blunted because it presumes the very thing the voluntary process is intended to decide. Criticizing self-created duties as “too weak” assumes that the right policy is one with strong duties, which in turn assumes that the people affected by the policy strongly value the owl (relative to other goals that may conflict with its protection). If this is indeed true, a process that fails to provide strong protection deserves to be scrutinized closely.

Without such foreknowledge, however, this objection must appeal to some independ ent source of what the right policy should be. For forest policy, the “best” science is often touted as such a source. Basing forest policy on an accurate, informed view of the world is uncontroversial. Too often, the appeal to the best science instead manifests itself as a process whereby the best scientists provide policy recommenda tions. Stakeholders who hold values similar to those of the scientists can then selflessly advocate their position, arguing that any other course would compromise the best science.

A sustainable policy is unlikely to be discovered in this way because legitimacy is derived from peoples’ beliefs about what ought to be, not just what is. Scientists are invaluable for resolving disputes over facts, but their expertise alone cannot resolve disputes over values. A resolution imposed by an impartial panel of scientists is still one “injected wholly from without,” as Leopold puts it, and is less likely to inspire the conviction that it is legitimate, part of the political capital that sustains forest policy.

A third difficulty in applying Fuller’s framework to forest policy lies in the widespread scope of many forest problems, which works against the second circumstance. For the northern spotted owl, while habitat protection need directly involve only forestland owners, other parties may claim a stake in the policy. The more widespread the parties “immediately affected” are, the more likely they are to vary in fundamental respects. In an extreme version of a Jeffersonian world, in which most households are self- sufficient and the division of labor is modest, a common ideology would likely prevail. In such a world, consensus about what is fair and what is an “equally distributed” burden would be relatively easy to achieve. As Douglass North points out, however, the extensive division of labor in the real world has produced a proliferation “of evolving ideological perspectives that have led individuals and groups to have contrasting views of the fairness of their situation . . . “(12)

This variation makes the second circumstance harder to obtain. Again, suppose all parties agree that protecting the northern spotted owl is desirable, and that in order to do so, private landowners will have to forgo some economically valuable uses of their land. What constitutes an equally distributed burden? As noted before, spreading the burden across many parties appears at first to be the fairest distribution. But this will not be the case if different parties have different beliefs about the nature of the burden.

If landowners believe they have the right to use their land as they please, regardless of the environmental consequences, they will argue that protecting the owl would impose a significant burden on them and impart what amounts to a gift to other parties. To them, a mechanism like compensation would equalize the burden, making the policy of protection fairer. Conversely, if other parties believe the public has the right to protected owl habitat regardless of nominal land title, they will argue that land uses adversely affecting habitat would impose a significant burden on the public and impart a gift to private landowners. To them, compensating landowners for the costs of protection would result in an unfair burden because the public would shoulder all of it.

Even the apparently fair policy of splitting the burden down the middle — compensate forestland owners for some but not all of the costs of protection — will not be fair in some people’s eyes if their initial beliefs are firmly attached to one of these two extremes. Creating a sustainable forest policy is more a difficult, then, among parties that hold strong, mutually-inconsistent views of the burdens of a policy and therefore of the meaning of fairness.

Finally, the nature of many environmental problems also works against the third circumstance. Water runs downhill, and waste dumped upstream fouls the water downstream but not vice-versa; prevailing winds do not blow in all directions, and sulfur dioxide spewed into the air upwind produces acid rain downwind, but not vice-versa. Protecting wildlife is even more problematic. Spotted owls prefer certain forest structures, none of which can be found in the backyards of city dwellers. In these ways, the nature of environmental externalities runs counter to the circumstance of symmetry, in which all parties have the potential for bearing the duty and enjoying its fruits.

These considerations do not rule out the possibility of meeting the three circumstances, thereby defeating the notion of sustainability. Environmental problems vary in their nature, scope, and the parties they affect. The framework developed here illustrates how that variability may effect the sustainability of policy. Perfect sustainability is every bit as unattainable as is perfect harmony with the environment, of course, or perfect harmony with private property rights or any other worthy goal. Striving for more sustainable forest policies begins with understanding the conditions that encourage that dimension, and refining our understanding through careful analysis.

The framework developed here is a beginning, not an end in itself. Although reasonable on their face, the three circumstances Fuller suggests need further elaboration and clarification. And rather than treat the framework as a prescriptive model, it should be viewed as one that enables us to form hypotheses about the sustainability of particular forest and other environmental policies. A crucial next step is then to test these hypotheses against actual experiences.

Taking this approach, “NO BIRDS” becomes, so to speak, one data point; document ing other efforts adds more data; and the framework developed here provides a systematic way of cataloguing and evaluating those experiences. From this body of work, recommendations to reform policy gain a new dimension, sustainability, to be considered alongside others.

If we want to avoid the pendulum’s swing from one extreme policy to another, sustainability is a dimension policymakers cannot afford to ignore. Appealing to the oracular powers of science is always attractive — it absolves the policymaker of the difficult decisions inherent in resolving conflicts among values. But the fairness and attainability of forest policy, the foundation of its political capital, are inextricably tied to the people the policy seeks to govern. Ignoring sustainability sets reform down a path that is likely to leave policy where it is today: cut loose from its fundamental mooring in human values, with the pendulum bound to swing again.

Notes

1. The description of the sign is taken from C. Mann and M. Plummer, Noah’s Choice: The Future of Endangered Species, (New York: Knopf, 1995).

2. The vireo was listed in 1987 (Federal Register 52 (6 October 1987): 37420), the warbler in 1990 (Federal Register 55 (4 May 1990): 18844-45; 55 (27 December 1990): 53160).

3. W. D. Ruckelshaus, “Stopping the Pendulum,” remarks before the Environmental Law Institute, Washington, D.C., 18 October 1995.

4. “Sustainability is a relationship between dynamic human economic systems and larger dynamic, but normally slower-changing ecological systems, in which 1) human life can continue indefinitely, 2) human individuals can flourish, and 3) human cultures can develop; but in which effects of human activities remain within bounds, so as not to destroy the diversity, complexity, and function of the ecological life support system.” R. Costanza, H. E. Daly, and J. A. Bartholomew, “Goals, Agenda and Policy Recommendations for Ecological Economics,” in Ecological Economics: The Science and Management of Sustainability, R. Costanza, ed. (New York: Columbia University Press, 1991), pp. 1-20, at 8-9.

5. Note the important qualification: Without consent. Economists point to airport noise as an example of a possible non-externality. Typically, the price of housing near airports is lower than in similar markets not subject to airport noise. People who purchase houses near airports, then, give their implicit consent to bear the costs of the noise and are compensated for doing so with the lowered cost of housing. An externality would only occur in this setting if the amount of airport noise unexpectedly increased (or decreased, for that matter). In that case, housing prices would fall (or rise) and the owners would suffer an external cost (or benefit).

6. Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964).

7. Fuller (1964), at 22-23.

8. M. J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge: Harvard University Press, 1996), at 65.

9. Fuller (1964), at 71 (all quotes).

10. When duties are spread out over time, one can immediately see the potential for opportunistic behavior: I promise to bear the duty to protect owls at some future point in time in exchange for your promise to protect them in the present, but I then engage in behavior that lowers the chance that duty will ever be invoked. This works against the potential for forging a sustainable policy but does not make it impossible to attain.

11. This raises a vexing, ancillary question: Exactly what set of parties constitute those who are “immediately affected” by the duty? In the case of the northern spotted owl, for example, a Massachusetts environmental group, Greenworld, authored the petition that eventually forced the Fish and Wildlife Service to list the owl.

12. D. North, Structure and Change in Economic History (New York: W. W. Norton & Co., 1981), at 58.