Environmental scholarship for a new millennium.

ENVIRONMENTAL SCHOLARSHIP FOR A NEW MILLENNIUM:

We are here tonight to celebrate the work accomplished by last year's law review staff and to inspire the new staff members for their work ahead. In the spirit of this occasion I would like to focus my remarks this evening on the role of environmental scholarship in meeting the tremendous ecological challenges that confront us. I hope to give you some thoughts regarding the significance of your work to carry with you into those late nights of cite-checking, reading manuscripts, and writing your own casenotes. I would like to suggest to you that environmental scholarship is not just interesting, or provocative, or perhaps even critical, but that it has epic and planetary importance. The focal point of environmental scholarship is, after all, the environment, and we have entered a time in human history when our fundamental system of survival may be imperiled.

The gamut of environmental issues appearing in the scholarship are alone indication of the pervasiveness of natural destruction. Flipping through past issues of your law review a reader will be immersed in fisheries loss, wetlands loss, deforestation, overpopulation, global warming, pesticide contamination, ozone depletion, water pollution, air pollution, nuclear waste disposal, and much more. Environmental destruction is occurring at an unprecedented rate virtually everywhere--in the oceans, in the atmosphere, in the rivers and in the soils, on every single continent and in ecosystems as far-flung as the Amazon and the Arctic.

On a global scale, the facts are staggering. The most recent State of the World Report from WorldWatch Institute warns of the abrupt decline of every type of natural system sustaining life.(1) One fifth of the world's freshwater fish are either endangered or extinct.(2) All of the seven major ocean fisheries are in decline or on the verge of collapse.(3) Between 10 and 100 species are lost each day on a worldwide basis due to human activity(4)--this is 25,000 times the natural rate.(5) It is estimated that, if trends continue, half of all of the species alive today will be gone by the year 2050.(6) And yet the human species will double in that same time frame, reaching 10 billion by 2050.(7)

Just six months ago a United Nations body of 1500 leading climate experts from 60 nations announced that global warming does exist, is measurable, and poses a significant threat to human systems, particularly to the more than half of humankind living within 60 miles of coastline.(8) In fewer than 50 years we have doubled the amount of carbon dioxide in the atmosphere,(9) and in that time the ozone layer has been depleted by almost 10%,(10) resulting in a hole in the ozone extending over an area three times the size of the contiguous United States.(11) Government sponsored commercials in New Zealand appear daily on television warning parents not to let their children go outside without protective wear, because the risk of skin cancer is so great.(12) That basic feeling of warmth and comfort from sunshine pouring down on one's shoulders--something all of us in this room enjoyed and took for granted as children--is something those children in New Zealand will never have the privilege of feeling.

In this country too, industrial destruction has been massive and unsparing. Nearly half of the country's rivers, lakes and creeks are polluted.(13) Since white settlement the U.S. has lost half of its wetlands,(14) 90% of its old growth forests,(15) and 99% of its tall grass prairies.(16) According to the Council of Environmental Quality, an estimated 9,000 species of plants and animals in this country are at risk of extinction.(17)

And in our own region, ecosystems are imperiled. Just 200 miles to the east of us on the banks of the Columbia River sits one of the most contaminated sites in the world at the Hanford Nuclear Reservation. There is a plume of radioactive groundwater 200 square miles in size,(18) with the leading edge already discharging into the Columbia River.(19) More than 54 tanks hold incompatible waste and appear on a "tank watch list" due to the threat of explosion;(20) more than 60 tanks holding radioactive waste are leaking into the groundwater.(21)

Our Pacific Northwest forests are unraveling. This region boasted some of the most magnificent old growth forest in the world just half a century ago. Last year we had only 5%-8% left of the ancient forest that was once here.(22) Now, due to the Salvage Logging Rider(23) slipped onto an appropriations bill by Congress last June, many of the last untouched areas are being clearcut, including groves of trees over 1,000 years old in the Umpqua area of Southern Oregon.(24) And the fisheries have met with a fate that would have been unimaginable just a century ago. The Columbia River system once produced the world's largest fishery.(25) The salmon species have evolved in this basin over the course of 5 million years(26) and have been vital to human existence in this region for at least 10,000 years. Now wild salmon are on the brink of extinction, and over 100 populations of Pacific Salmon have already been extirpated.(27)

These figures present a pattern of ecological crisis rapidly unfolding on a global, national, and regional level. What is the role of environmental law against this context? For better or for worse, the law is the overriding social mechanism in this society to control human behavior. It may not be the most desirable tool--some would argue that long-term education is preferable to make fundamental changes--but the law is perhaps the only social tool that can respond with necessary experience to a crisis of the commons.

Unfortunately, the present system of laws has proved fairly inept at preventing the state we find ourselves in today. This country has the most abundantly detailed set of environmental laws in the world, and yet on both a regional level and a national level the laws have failed to stem a tide of mounting environmental destruction. And on a global level, of course, international environmental law is skeletal at best.

The salmon crisis in the Columbia River Basin presents a shocking and stark failure of environmental law. Two landmark statutes protect the salmon species with very clear and strong protective mandates--the Northwest Power Act(28) and the Endangered Species Act.(29) And yet, although the salmon should have benefited from the protection of these statutes for the last two decades, very little has changed in the way of altering those river practices that create lethal conditions for migrating fish,(30) and populations continue to plummet towards extinction.(31) If these laws prove inept at rescuing the salmon--a species so treasured throughout the region that it is deemed the cultural icon of the Pacific Northwest--that failure does not bode well for other serious environmental issues.

Environmental law scholars face a context permeated with dysfunction. And yet the dysfunction itself lies submerged beneath a seemingly impenetrable layer of complexity existing at the level of statutory implementation. Applying the laws to a runaway set of environmental problems is nearly all-consuming of time and energy for those in the field. Infirmities in the present legal structure can be identified and corrected, but doing so requires liberation from the implementation level. Most environmental professionals are so trapped in the endless stream of issues churning from the current statutes that they simply cannot explore the adequacy of the laws at a deeper level. Engaging in a more fundamental analysis of systemic dysfunction requires three attributes that scholars uniquely posses: time, freedom of thought, and breadth of experience. Their task in rescuing environmental law from its past failings and future predicament is nothing short of heroic, given the critical state of affairs.

This is a pivotal time for environmental scholarship because we are at a point of reckoning for the earth. Past generations of law faculty and students at law schools across the country perhaps had the luxury of thinking that these immense, earth-threatening problems would ultimately sort themselves out in 50 or 100 years. Those of us who now share this tenure on earth together lack that cushion of time. Four years ago, 1600 scientists from across the world, including 102 Nobel laureates, collectively issued a "Warning to Humanity" that we might have only a decade to halt the destructive practices that are pushing our ecosystems towards virtual collapse.(32) That was four years ago, already.

By happenstance, this time of reckoning coincides with a symbolic turning point in history--a new millennium. Midnight of December 31, 1999 will mark concurrently the beginning of a new year, the birth of a new century, and the dawning of a new millennium. The eclipse of the millennium pulls our collective imagination back 1,000 years and reveals in full drama the staggering pace of environmental damage. And this region faces a particularly chilling awakening: salmon that have evolved over the course of 5 million years in the Pacific Northwest face a sentence of perhaps one last decade on earth. The turning of the millennium forces us to juxtapose the impulsive actions of the past century against the natural harmony sustained between humans and salmon for millennia in this region. Indeed, the millennium puts into proper focus the last blink of history and beckons a renewed evaluation of our social progress.

Of course, as the year 2000 approaches, doomsday speeches will proliferate. However, I would offer something of the opposite. Humans have the great gift of the deliberative mind that allows adjustment of their actions, and many environmental problems may not yet be insurmountable. Many simply lack the attention they deserve, in great part because people fail to push their minds forward beyond the present familiar system even when it is failing. Society needs a symbolic or actual turning point to launch a new direction in thinking. Indeed, the inception of Earth Day fulfilled this need two decades ago. Environmental scholars should capture the millennium moment and ride its focus ahead 1,000 years to envision a necessary shift in human environmental behavior. Like the 102 Nobel Laureates who collectively issued their Warning to Humanity four years ago, the broad college of environmental law scholars across the country might produce a new breed of scholarship--millennium scholarship--that collectively sets a new foundation for environmental law.

I would offer four attributes that give millennium scholarship its own distinction. First, millennium scholarship squarely confronts the environmental crisis and brings it to the forefront of the public consciousness. It relates discrete environmental problems to a broader inventory of the condition of the earth's resources. It explores patterns of degradation across scales of geography and time. It looks for intersections of trajectories, such as population growth and global warming. It identifies lines of acceleration and points of collapse. It rejects illusions of constancy in the environmental condition, and instead extrapolates from historical trends to project probable future scenarios. Only a broad, future-looking analysis will bring into realistic focus the impending demands on the law to allocate and protect remaining resources in a looming period of scarcity.

The environmental collapse in this region provides a grim landmark for such analysis. The rapid destruction of natural resources in the Pacific Northwest, which was always thought to have unlimited bounty, presents a unique clarity of loss. There is nothing ambiguous about 5% of the old growth forest left, or about the salmon hovering five to ten years from extinction. These environmental tragedies bear witness to the sheer rapidity with which the unfathomable becomes the imminent.

A second attribute of millennium scholarship is an unflinching emphasis on assessing the law's past effectiveness in achieving environmental protection. It draws out historic patterns of failure to provide context for presently unfolding issues. In this way, millennium scholars recognize that to be visionaries of the future they must first be keepers of the past. Of course some will say that millennium scholarship should inventory the notable successes, rather than the failures, of environmental law. There have been successes. It is true, for example, that the Clean Water Act and other statutes have greatly reduced pollution in certain parts of the country. But while millennium scholarship illuminates and draws models from the successes, it also rejects a narrow accounting of the legal system's overall effectiveness. Successes are, we all know, relative. A doctor would hardly consider surgery a success if, though the patient's wound were skillfully repaired, he died of heart failure on the operating table. Appraising the relativity of success and failure is a necessary predicate to progressive action.

A third attribute of millennium scholarship is that it searches broadly for the "systemic dysfunction" underlying the present system of laws. The profound social and political dysfunction which causes extreme, pervasive, environmental damage is little understood. Unfortunately, most environmental professionals are lost in the trenches of very specific issues, and they fail to search out the commonalities underlying the broad spectrum of problems. A more sweeping focus may well reveal that many of the same dynamics underlying pesticide contamination, water pollution, and nuclear waste disposal are also at the root of wetlands loss, deforestation, and species extinctions. Millennium scholarship breaks out of the narrow issues and instead searches for patterns of dysfunction apparent across the full landscape of environmental law.

It is often said that the solution to any problem must take place at a level beyond the problem; otherwise the forces creating the problem in the first place will recreate it again and again. So if, for example, one is concerned about the effect of the Salvage Logging Rider(33) on Northwest forests, one ought to examine the constitutionality of enacting substantive forest management legislation in the form of a rider in the first place. If one is concerned about industrial contamination of land and waterways, one should explore the law involving corporate environmental decision making. In searching deeper, scholars will inevitably revisit the most fundamental questions of our democracy, including the balance of power between the courts, Congress, and the Executive, the nature of private property ownership, and the inherent right of citizens to control governmental outcomes.

One area of dysfunction that must be confronted, because it permeates all environmental issues, is the role of science in environmental decision making. Government officials often discount the predictive value of science, instead requiring science to present a near-absolute conclusion before serving as a predicate to action. This approach can rob society of a critical window of time within which to deal with problems. One must wonder, for example, whether it was prudent to wait until 1500 leading climatologists finally said with certainty that global warming is a real phenomenon before taking measures to act. The same concern can be posed of delaying action while the hole in the ozone layer stretched to a size three times that of the continental United States. And, in this region, observers wonder whether the salmon will be extinct in the Columbia River Basin before federal river managers are convinced that drastic changes in hydro-operations are necessary. The absolute insistence on scientific certainty drains from science much of its value as a predictive tool to structure collective human behavior in a way that allows precautionary, rather than post mortem, approaches to environmental problems.

Now there is evidence, based on just two decades of study, that certain types of chemicals used in plastics and pesticides act as estrogen hormone mimickers in the human system.(34) Scientists suspect that these chemicals may cause serious adverse health effects.(35) Over the last two decades, the incidence of breast cancer in women has increased 24%,(36) testicular cancer in men has increased 42%,(37) and men have experienced a 42% loss in sperm count.(38) It is fairly well established that these chemicals cause adverse effects on reproductive systems of animals.(39) A classic case study is the major pesticide spill which occurred in Lake Apopka in central Florida, a decade ago. There are now a large number of male alligators in that area with miniature, malformed, or missing male organs, and there are no male panthers in the area with normally descended testicles.(40) The evidence linking hormone mimickers to human health patterns is not yet conclusive, but a delay in regulatory action to limit production of these chemicals may well result in untold cancer deaths and widespread infertility. Exploring the appropriate role of a precautionary approach in addressing this issue and in environmental decision making generally would be a worthwhile pursuit of millennium scholarship.

I have identified three attributes of millennium scholarship: exposing the environmental crisis, fairly assessing the law's effectiveness in protecting the environment, and exploring areas of systemic dysfunction in environmental law. The fourth feature is a renewed focus on the ethical question of human responsibility towards the earth. Much environmental scholarship eschews questions of ethics, perhaps because such questions tread upon the subjective realm, which is uncomfortable terrain for those versed in objective approaches to problems. But the history of human civilization shows that social ethics is central to human environmental behavior. Historically, indigenous cultures across the world incorporated into their everyday behavior a strong spiritual mandate to protect the earth and all natural things on it; the sustainability of native culture is often attributed to that inherent sense of ethic.

Industrial culture, in contrast to native culture, searches for ethical instruction in the written law. If the law does not prohibit the action, there may be little reflection on the environmental costs, or values destroyed, as a consequence of the action. Does the logger think twice before he fells a thousand year old tree, or the last millennium grove? Did the Hanford worker think twice before dumping radioactive material within reach of the Columbia River thirty years ago? Legal historians are cognizant of the dangers of equating law with ethics. Many crimes against humanity over the course of human history were legal at the time they were committed--slavery is a familiar example. The interaction of ethics, morality, and the law is as relevant in the environmental field as it is in the area of human rights, family law, civil liberties, and professional responsibility.

In the environmental realm, the law may well suppress natural inclinations of greater responsibility. It has been suggested that humans have an innate sense of reverence towards the earth because, after all, humans are a natural species. Indeed, a deep sense of environmental responsibility is often apparent in children who have not yet been socially inoculated to environmental destruction. Children offer reasons for protecting other natural beings without consulting the Endangered Species Act or the many other environmental statutes on the books. The finality of extinction is very real and profane to them. A critical question for millennium scholars is the effect of environmental law on the deeper sense of ethic.

In some measure the statutory laws operate as a medium through which violence towards the earth is sterilized, and natural losses are trivialized. When the image of nature passes through the statutory process and is discussed in acronymic terminology it emerges a shell of the treasure it once was. The towering presence of a Douglas Fir in the ancient forest of the Umpqua becomes 20,000 board feet in the Salvage Logging Rider. The pack of wolves throwing their primeval howls through the wilderness of Idaho becomes a minimum viable population under the Endangered Species Act. The delicate balance of health within our own bodies becomes a matter of cancer risk under the hazardous waste laws--[10.sup.-6] to be specific. In short, our environmental laws act as the primary expression of what is right and wrong towards the earth, and they have largely drained the sacred from the subject matter. Millennium scholarship delves into the ethical dimensions of environmental responsibility, and in so doing welcomes the wisdom of poets and philosophers as well as practitioners and professors.

Well, I hope that my remarks this evening will inspire you to create a meaningful role for your journal in rescuing the new millennium from an otherwise dreadful sentence imposed by intellectual apathy and languor. Environmental law is, arguably, the most important field of law on earth, and the work ahead in recrafting this area is immense. Any student who writes a paper on an environmental law topic just to complete a school requirement is failing to greet the hero that lies within. The ecological crisis confronting the earth imposes a personal responsibility on each of us as scholars, and circumstance assigns us the role of visionaries. Use your time here wisely, and productively, and set your sights ahead a thousand years. I thank you for sharing this time with me this evening, and I very much look forward to receiving the millennium issue of Environmental Law.

(1) WorldWatch Institute, State of the World 1995 (1995).

(2) World Resources Institute et al., World Resources 1994-95 at 184 (1995).

(3) Peter Weber, Protecting Oceanic Fisheries and Jobs, in State of the World 1995, supra note 1, at 21-22.

(4) Doxella H. Meadows et al., Beyond the Limits 65 (1992).

(5) Geofferey Lean, Atlas of the Environment 11 (1992).

(6) Id. at 127.

(7) State of the World 1995, supra note 1, at 3.

(8) Raymond Carroll, Host of Problems Seriously Threatens World's Water Supply, Times Union (Albany, N.Y.), Mar. 3, 1996, at E1.

(9) Albert Gore, Earth in the Balance 93 (1992).

(10) Id. at 86.

(11) Id. at 87.

(12) K. C. Pounder, Letter to the Sports Editor: Skin Cancer Protection, Daily Telegraph (Auckland, New Zealand), Feb. 17, 1992, at 34.

(13) 26th Environmental Quality Index, National Wildlife, Feb.-Mar. 1994, at 41.

(14) Pamela Cubberly, Wildlife, in The Information Please Environmental Alamanac 159 (World Resources Institute eg., 1993).

(15) Id.

(16) Id.

(17) Council on Envtl. Quality, Environmental Quality, 21ST Annual Report 137 (1991). (18) Kenneth J. Garcia, Hanford's Poisoned Landscape: Radiation Cleanup May Prove Impossible, S F. Chron., Apr. 12, 1995, at A1.

(19) Bill Dietrich, How Clean is Clean?, Seattle Times, Apr. 4, 1995, at A8.

(20) John Stang, Tanks to be Added, Taken Off Watch List, Tri-City Herald (Pasco, Wash), Jan. 18, 1996, at A4.

(21) Dick Clever & Larly Lange, Steam Eruption Averted in Waste Tank at Hanford, Seattle Post-Intellegencer, Aug. 4, 1994, at A7.

(22) Vicki Lee Deisner, Ancient Forests v. The Timber Industry, 20 N. KY. L. Rev. 185, 193 (1992) (citing It's 95% Gone, and It Will Never Be Back, Forest Voice (Native Forest Council, Eugene, Or.), Sept. 1989, at 3).

(23) Pub. L. No. 104-19, [sections] 2001, 109 stat. 240 (to be codified at 16 u S C [sections] 1611). (24) Kim Murphy, Differing Values Cut Through Timber Debate, L.A. Times, Apr. 15, 1996, at A1.

(25) Nightmare on the Columbia: "One Fiasco After Another" Puts Salmon at Risk, Cascadia Times, July 1996, at 11, 12.

(26) Joseph Cone, A Common Fatte: Endangered Salmon and People of the Pacific Northwest 65 (1995).

(27) Endangered Species Act Reauthorization, 1995: Hearings on H.R. 2275 Before the House Resources Comm., 103d Cong., 2d Sess. (1995) (statement of Glen Spain, Northwest Regional Director, Pacific Coast Federation of Fisherman Association). (28) 16 U.S.C. [subsections] 839-839(h) (1994)

(29) 16 U.S.C. [subsections] 1531-1544 (1994)

(30) Charles Ray, 1995 River Operations Under the Endangered Species Act: Continuing the Salmon Slaughter, Second Annual "Who Runs the River?" Colloquium, 26 Envtl. L. 675, 678-89 (1996); Nightmare on the Columbia, supra note 25, at 12-13. (31) Memorandum in Support of Plaintiffs Motion for Preliminary Injunction at 2, American Rivers v. National Marine Fisheries Service (No. 96-384-MA) (1996) (noting drop of juvenile wild Snake River salmon spring/summer populations from 1.3 million smolts in 1995 to a projected 168,750 in 1996). (32) Warning to Humanity--A Declaration by Scientists on Global Issues, Population and Development Review, Feb. 1992, at 782-84. (33) See supra note 23.

(34) Michael Castleman, Are Men Becoming an Endangered Species?: The Chemical Threat to Mankind, Cascadia Times, November 1995, at 10, 12; Theo Colborn et al., Our Stolen Future: Are We Threatening Our Fertility, Intelligence and Survival?--A Scientific Detective Story 6-73 (1996).

(35) Castleman, supra note 34, at 12-13; Colborn et al., supra note 34, at 6-73.

(36) Castleman, supra note 34, at 12-13 (reporting a 24% increase of breast cancer in women in the U.S. from 1973-1991).

(37) Id. at 11 (citing National Cancer Institute report of 42% increase in the U.S. testicular cancer rate from 1973 to 1991).

(38) Id. (citing 1992 Danish study reported in the British Medical Journal analyzing 61 studies of sperm counts).

(39) Id. at 11-12.

(40) Id. at 12.

Mary Christina Wood, Associate Professor of Law, University of Oregon School of Law. Thanks to Sara Butcher for assisting with footnotes. These remarks are adapted from a speech delivered at the Annual Dinner Banquet for Environmental Law, Northwestern School of Law of Lewis & Clark Law School, Portland, Or., April 19, 1996. Citations have been added for the reader's convenience.