Virtual Guest Speakers

January 28:

Dr. Robert J. Goldstein, Pace University School of Law

Topic: Putting Environmental Law on the Map:
A Spatial Approach to Environmental Law Using GIS


Biography
Lecture
Related Links
Discussion List   (Dr. Goldstein will participate from January 28 - February 1)


Biography

B.A. CUNY Queens College;  J.D. St. John's University School of Law; LL.M. Pace University School of Law; M.E.S. Yale University School of Forestry and Environmental Studies.  At Pace School of Law Professor Goldstein is the director of environmental programs and teaches Administrative Law. He created the Pace Virtual Environmental Law Library and is chair of an international taskforce charged with putting the environmental laws of the world on the Internet.



Lecture

Putting Environmental Law on the Map:
A Spatial Approach to Environmental Law Using GIS

By Robert J. Goldstein*

Abstract

Geographic information systems (GIS) consist of layers of information which can be combined to create sophisticated and comprehensive ‘views’ of a particular location. Included in these layers have been physical features and some land uses. The availability of a digitized law library like the Pace Virtual Environmental Law Library (http://www.pace.edu/lawschool/env/vell6.html), will facilitate the use of that data for GIS.

The use of a map for the purpose of illustrating the legal protections afforded to a geographic location is somewhat novel, but only in the sense that the inclusion of environmental laws along with land use laws (which are the subject of maps, for e.g. zoning and wetlands delineation), will present a more complete picture of the regulation of land, and will afford a greater understanding of the need for environmental regulation, based on the spatial understanding of the laws’ focus. The spatial nature of environmental law is often missed when viewed from the ‘mouse’s eye’ perspective. It is arguable that non-point source pollution is unavoidable where land managers and municipalities fail to view landscapes as watersheds or air-sheds. Besides adding this important geographic perspective, environmental law can add meaning to the need for ecosystem management of land, based on the connectivity of green space, and the preservation of landscapes in units of size which make sense ecologically. The environmental law layer can provide the user with information deciphered from the often confusing language of the statutes and regulations, and present it graphically.

Table of Contents

Introduction: Does Environmental Law Have a Spatial Basis?

Ecology and law

Environmental law, almost by definition has a physical connection to place. With few exceptions it deals with our place in the world. On a macro scale, environmental law governs our use of the resources of the Earth: the land, the air, the seas, the minerals, and the flora and fauna. The earth is a system of biotic units that the science of ecology 1 has identified using the term ecosystems. “An ecosystem is basically an energy-processing and nutrient-regenerating system whose components have evolved over a long period of time.”2  These ecosystems are earth’s “life-support systems.”3

Ecosystems can be categorized. Although there are a rich diversity of ecosystems, each with its distinctive local characteristics, there are many aspects -- the patterns and processes that drive those systems and allow them to exist and function --  that the science of ecology has identified and documented, that transcend the distinctions. It would be folly to exaggerate these similarities by attempting to manage ecosystems on a global, or even a national level, but recognition of the patterns and processes assists us with management of like-ecosystems on a more localized level.4  The ability of ecological science to categorize ecosystems based on their patterns and processes, allows those ecosystems to be considered together for policy decisions and for management.

Environmental  laws are those laws that are enacted to effect the policies and management of ecosystems, and govern the relationship among humans and their life-support system. Despite the scientific recognition that ecosystem protection is an effective way of effecting environmental protections, most environmental laws are not yet focused on ecosystem protection. This is a situation that will evolve during the next generation of environmental laws.

There are, however, many laws that effectively protect whole ecosystems indirectly, through the identification of critical habitats for endangered species,5  or the permitting requirements for the dredging and filling of wetlands.6  In addition, there are land use laws that protect ecosystems,7  and systems of management of public lands that offer different levels of protection for the ecosystems that they cover.8  These laws are spatial in character, governing identifiable ecosystems and attaching legal values to identifiable areas within identifiable boundaries.9     The thrust of the science of ecology, with its emphasis on ecosystem management, will lead, in the near future, to an evolution in environmental laws, from those based upon acute problems, to those based on ecosystem protection.

Brown and Green Law

Environmental laws are often whimsically characterized as brown (those laws that deal with pollution), and green (those laws dealing with protection of natural resources). While both sets of laws have spatial applicability, it is the green laws that are seemingly more conducive to geographic connection. A park, preserve, or even a wetland is easily identified spatially.10  Brown laws, however, require geographic reference simply because pollution activities in one location have impacts that are dissimilar to the same pollution activities if conducted elsewhere. A coal-fired power plant in rural West Virginia will have different impacts than one in urban Chicago.11

Figure 1 depicts the points of pollution activity in a section of Westchester County, New York. These points are inventoried by various government agencies that are responsible for their regulation. This depiction is reflective of the impact of laws that have focused on “point sources.” According to its statutory definition, a point source is “any discernible, confined and discrete conveyance …”12  One of the successes of environmental law in the US has been the use of technology-driven standards to treat pollutants emitted by point sources.
 
 

Figure 1. Pollution Points in Town of Ossining, Westchester County. Source: Westchester County GIS (http://giswww.co.westchester.ny.us/wcgis/envmappage.html).

Attempts have been made to give brown laws spatial applicability. In the United States, the Clean Air Act has established zones that are identified by their level of compliance.13  Certain activities that are allowed in compliance areas, are not allowed in non-compliance zones. Likewise, water quality issues are identified on a spatial basis, with the identification of water quality levels for disparate water bodies, even dividing a single water body into zones for the measurement of water quality.14

Figure 2 depicts the counties that have non-attainment zones for ozone pollution.  The concentrations of these pollutants are in the urbanized areas of the US, including the east-coast megalopolis, much of California, and the refinery-rich region surrounding Houston, Texas. This map depicts the effects of pollution, rather than its sources.

A challenge that remains is to deal with non-point source pollution.  This type of pollution, by definition, deals with spatial areas that cannot be depicted as points on a map. The use of maps that depict the effects of that pollution, such as that in Figure 2, however, are helpful in delineating the sources of those pollutants – even in the absence of a discrete point source.
 
Figure 2. Non-attainment areas (by county) for ozone.  Source: USEPA (http://www.epa.gov/airs/rvnono3.html).

Land Use Laws

Land use and zoning laws are clearly the most conducive to spatial applicability. They are usually fixed on political boundaries,15  and can be most easily geo-referenced. In the United States, many counties have incorporated their land use laws onto computerized mapping systems that can indicate the permitted and prohibited uses of a particular tract of land by reference to a computer-based map, set of coordinates, or even a street address.16

One such computerized mapping system has been constructed for the County of Westchester in the State of New York.17   According to its web site:

In 1998, Westchester County began planning for the development of the first-ever, digital, high-accuracy ( 1”=100') base map of the entire county. Covering the entire 486-square miles of the county (and a 200' buffer beyond the county boundary), the project was designed to produce a wide range of digital products which could be used and integrated into the growing number of government applications based on spatial data (emergency dispatching, transportation, infrastructure management, tax mapping, health and human services, etc.), as well as a wide range of basic geographic information systems (GIS) initiatives. The project is being carried out at the direction of the County Executive and the Westchester GIS Task Force, a group which includes representation from county and local government, business, and utilities.18

This system was set up in conjunction with local governments,19  to assist them in land use management.  An example of the mapping available is contained in Figure 3.20
 

Figure 3. City of Rye Land Use Map created from GIS. Source: Rye GIS (http://map-server.ci.rye.ny.us/wwwgis/rye_800.html).

This type of mapping allows for the inclusion of an extraordinary amount of data about a selected geographic site.  These map features include both natural and man-made features.

Spatially Applicable Laws and Maps

The existence of spatially applicable laws makes it possible for those laws to be represented on a map. Printed maps are static by nature, and can only contain a limited amount of information before becoming unwieldy in size. The environmental laws that regard any one locale may contain a large number of layers that contain specific laws dealing with specific problems. For example, one locale may be adjacent to a preserve, where certain activities are restrictive (e.g. no coal-generated power plants). That locale may also be home to an endangered species that will have a protected habitat, and may also contain wetlands. A geographic information system (GIS) that can store multiple layers of data pertinent to a geographic location,21  can display that data on a computer generated map.22
 
 

Figure 4.  Land Uses Adjacent to Pace University in Westchester County.  Source: Westchester County GIS (http://giswww.co.westchester.ny.us/wcgis/envmappage.html).

Figure 4 depicts land uses in the County of Westchester that surround the two campuses of Pace University.  The user can choose the features to be included on the map, and produce a customized map directly from the County’s GIS system over the Internet.
 
 

Figure 5.  Flood Plains Adjacent to Pace University in Westchester County.  Source: Westchester County GIS (http://giswww.co.westchester.ny.us/wcgis/envmappage.html).

Figure 5 demonstrates the mapping of environmental data on the same GIS system. Here floodplains are depicted.  Any features on  these maps can  be combined. In Figure 5, the laws regarding activities prohibited in the 100-year flood plain, for example, could be added to the GIS database, and therefore to the map.

The Virtual Environmental Law Library

The threshold issue that confronts lawyers attempting to assemble and present spatially applicable laws is the medium in which those laws are published. Printed matter must be digitized for it to be used in conjunction with computer-based mapping technology. This process has been facilitated by the establishment of virtual environmental law libraries that are digitized, web-based, and in many instances, free sources of information.23  Digitization is only one step toward a compatible database of legal information. There remain issues of reliability, currency, and uniformity of the data.

Network of Lawyers

The issue of reliability of data is perhaps the most vexing when creating a library of legal information that lawyers and policymakers will use.24  Up until the computer age, the legal profession had become reliant on the credibility of the printed books that contained statutes and jurisprudence. The paradigm shift towards electronic media is still in its infancy, especially with lawyers. A major reason for this reticence is the lawyers’ need for reliable data.25  The data must first come from a credible source. While many jurisdictions are moving to computer-based systems of reporting cases, and publishing statutes, others, especially those less-affluent, have not. In the international environmental law community, the paucity of internet published materials led efforts to build a network of lawyers, acting as reporters, developing databases on environmental law in their jurisdictions.26

Uniformity of Data

For the data produced by these reporters to be useful in a computerized database, the data must be uniform – produced on identical templates, that allows for comparisons and contrasts to be drawn. Conventions must be established to assure that data gathered in one location will work with data compiled in another. The above-referenced  Virtual Environmental Law Library  endeavors to prepare comprehensive descriptive data about a nation’s environmental laws into a template that allows comparison of provisions among jurisdictions.

Newness of Topic

One benefit that environmental law has in completing the task of assembling the virtual environmental law library is the newness of the topic itself.  Few environmental laws are more than 30 years old, and the trend toward ecosystem-based environmental protections will militate future lawmakers to present their product in a format that will facilitate its use in a computer-based mapping system.27  Contrast this body of law with hundreds of years of common law contract cases, and the distinction will become clear.

GIS

Law Represented as Polygons

Laws are often considered to be way-too-complex to be represented graphically.  It is unquestionable that the application of law to a given set of facts is the realm of the legal profession. Laws are depicted by using language – words – that relate even the most abstract concepts. Yet the words are merely metaphors for the reality of law.  Where laws can be identified as having geographic applicability, those metaphors can be tied to the polygon that represents the geographic area involved. This is the application of laws to fact.  The fact is the physical geography, the law is the regulation. Lawyers might have to generalize about this applicability in assigning the law to the site, but lawyers are always generalizing when formulating their legal opinions regarding a fact pattern.  There is undoubtedly a subjective character to the decisions that will be made in identifying polygons, and applying the law to them; but subjective reasoning is the function of the lawyer, and remains so.

Perhaps the more difficult task involved in placing spatially applicable laws on a computerized mapping system is the assignment of geographic coordinates to specific laws.28  This seemingly daunting task may be easier than it first appears, as the computer aids in its construction.

Laws are identified as pertaining to a specified geographic feature. Using wetlands as an example, say the law states simply that ‘no wetlands may be filled’. In an existing GIS system, a layer of data includes the geographic coordinates for wetlands in the mapped area. When the computer is queried as to the existence of wetlands, and the law that pertains to them, it returns each wetland with the notation that “no wetlands may be filled” for each area (or polygon) that is identified on the wetland layer. These polygons are depicted on a map that shows both the wetlands and the law. The same would apply to a law that prevented construction on a steep slope. The polygons that represented slopes that exceeded the amount of degrees indicated in the statute would contain the appropriate construction-ban notation.

These results can also be graphically depicted, as are most of the data presented by a GIS system. A color that is indexed to ‘building prohibited’ could appear, along with a key that indicates that polygons that are red are indicative of a building prohibition. The key can include a color, perhaps yellow, for slopes that might be built by application to a permitting authority, or where certain structures – concrete, rather than wood, might be permitted, and an area with no restrictions could be green. The specificity of these legal outputs would be directly related to the specificity of the data regarding the physical attributes of the locale. In areas where such surveys were available on a GIS system, soil data might be employed to be juxtaposed with laws regarding the use of septic systems for sewage treatment. Data on forest cover might be juxtaposed with laws regarding watershed protections, and water quality of the runoff from a particular area. Clearly, one key to a comprehensive system is a comprehensive geographic database.

The Importance of Scientific Information

Detailed surveys of the ecologically crucial aspects of land, including many of the databases that might be useful in appending layers of legal data to GIS systems are currently being compiled. These databases are being collected and processed for the express purpose of placing that information on GIS systems that depict the current physical state of affairs for a particular ecosystem. While these systems might be useful in determining those systems that might be developed without harm to the environment, they may also be used to determine the actual level of protection afforded to resources that might not have legally enforceable protections.29  It is necessary that information that describes these systems be interoperable among very disparate disciplines.

Biodiversity Data

Biological diversity enhances the ability of the natural environment to survive.30   In ecological systems,31   the ability of these systems-in-flux to survive disturbance – both natural and man-made -- is a function of the systems’ resilience.32    Resilience is enhanced by biological diversity, which includes species richness and abundance33  -- biodiversity.34    This is only one of many reasons that biodiversity is in need of protections, but it is a compelling one.35

Many international entities are endeavoring to deal with data-interoperability issues dealing with issues of biodiversity;36  one is the Biodiversity Conservation Information System (BCIS).37  A consortium of organizations that each have large holdings of data on various conservation issues, BCIS is both a forum for interdisciplinary communication, and a medium to fashion standards for the interoperability of databases.38

The interoperability of data from different disciplines is a very difficult task. Most extant databases were developed under a discipline-specific set of criteria, and using conventions that are unique to the discipline that created them. Yet even the most basic scientific data, such as taxonomy, is not yet close to being unified in a way that would facilitate its use with a legal system that identified legally protected animal species. For example, animals identified under taxonomic names not recognized under the law, might slip through such a system. Ecosystems have not even been taxonomically organized.

The Interoperability of Data

Interoperability is not, however, an impenetrable barrier. Using GIS, legal information can be correlated with the patterns and processes that, as above referenced, transcend the character of individual ecosystems, allowing the computer to tell us to what polygons those laws apply. This might not result in the exactitude that we might, as lawyers, demand, but it is an acceptable substitute for the “institution” that we call the “legal opinion,” which has its inherent weaknesses.39

Putting Environmental Law on the Map: A View Towards the Future

In a system that attaches legal significance to the patterns and processes of nature, the legislative drafting of appropriate laws, and their interpretation take on added significance, putting science into policy decisions. But this function is one that has already been successfully inculcated into current environmental regulatory schemes, such as the Clean Air Act and the Clean Water Act in the United States. Those acts contain technology-forcing standards that analyze and legislate industrial application of pollution control technologies, injecting them into the processes that produce pollutants.40  It does not require a leap of logic to identify the role of a buffer between developed areas and natural resources, and to mandate that buffer become part of the development plan, nor is it difficult to conceive of a ban on fertilizer use on a slope of x° that is y feet from a body of water.  Complexity is added to this formulation by the identification of the soil types that are on the slope, and the flora that is present.

Although the assembly of the data required to provide this information is a daunting task, it is being assembled.  Soil maps exist, detailing the taxonomy of land.41  Slope is a function of topographic data that is readily available. Land cover, identifying the flora, is possible using remote sensing, and databases containing aerial and satellite gathered data are becoming commonplace.42  GIS displays the information on maps that can contain any combination of these databases.

Subjective Evaluation of Status Added to Objective Information

In addition to the objective legal information that can be keyed to conditions on-the-ground, the GIS allows for the input of subjective data – legal opinions. In the instance of wetlands, the mere identification of a wetland, its delineation, and the disclosure of the laws appurtenant to it, might not provide the user with adequate decision-making information. Local experts can opine on the degree of protection that is offered to such a wetland in reality, and based on their legal experience in the jurisdiction. This subjective data can also be added to GIS.

This evaluation involves a “legal opinion” of the law and its impact on a particular resource. To revisit the wetlands example, the objective law details will constitute one (or more) layers, and the subjective opinion will constitute another.  These layers can be made to juxtapose, or to work in concert. Essentially, by juxtaposing the layers, the map will show the law pertaining to the wetland, with an advisory by the expert. When used in concert, the two layers will meld into a single advisory, or keyed color.  For instance, while the objective law might indicate by the use of the color red, that dredging and filling was prohibited, the addition of the subjective layer would literally color the map differently, perhaps making the area green, if enforcement were lax.

The addition of this subjective data would be limited to jurisdictions under the legal regime within the expertise of the person who gives the ‘legal opinion’.  The user of this information could compare the efficacy of differing legal regimes that protect similar resources, but the subjective evaluation of a regime’s efficacy – what was actually protected and what was not – would require a set of more objective parameters to be useful.43

This effectively ties together the legal information with the scientific, and melds the reality on the ground with the perception, to graphically display an accurate picture of the status of the ecosystem in question.

Conclusion: The Vision

The vision of Putting Environmental Law on the Map includes the vision of a user with a hand-held wireless computer with global positioning systems (GPS) that identifies the environmental laws regarding a particular place. Using GPS data, locations on the ground can be nearly pinpointed. This will facilitate the accurate identification of sites on the ground that GIS will use to provide data.

Putting environmental law on the map will present policymakers with the on-the-ground facts that they need to make valid decisions regarding use and development of land.  It will allow the community-at-large the ability to monitor laws and question the gap between enactment and enforcement of meaningful environmental protections.

This will have the effect of protecting place, based on the understanding that the patterns and processes of ecosystems are understood and explicated. The GIS will integrate the data and present graphically the status of place. This will lead to a greater understanding of the sensitivity of ecosystems, and therefore to their ultimate protection.

ENDNOTES




Director of Environmental Law Programs, Pace University School of Law, White Plains, NY, USA, B.A. Queens College, CUNY;  J.D. St. John's University; LL.M. Pace University; M.E.M. Yale University; S.J.D. Pace University.  The author wishes to thank Professor C. Dana Tomlin, who introduced him to GIS, and Environmental Systems Research Institute, Inc. (ESRI) for their grant of GIS software.
Ecologist Eugene P. Odum defines this term: In ecology, the term population, originally coined to denote a group of people, is broadened to include groups of individuals of any species that live together in some designated area.  In the singular, a population is a group of organisms of the same, interbreeding species; in the plural, populations may include groups of organisms of different species that are linked by common ancestry or common habitat (e.g., plant populations, bird populations, plankton populations).  Community, in ecology, is used in the sense of biotic community to include all of the populations living in a designated area.  The community and the nonliving environment function together as an ecological system or ecosystem.  A parallel term often used in German and Russian literature is biogeocoenosis, which translated means, ‘life and earth functioning together’.  EUGENE P. ODUM, ECOLOGY AND OUR ENDANGERED LIFE-SUPPORT SYSTEMS, 26-27 (1989)(emphasis supplied).

ROBERT LEO SMITH, ECOLOGY AND FIELD BIOLOGY, 29 (1990).

Odum, supra  note 1 at 13.

See generally A. Dan Tarlock, Local Government Protection of Biodiversity: What Is Its Niche? 60 U. CHI. L. REV. 555(1993 ). See also Michael Soulé & Daniel Simberloff, The Landscape Ecology of Large Natural Disturbances in the Design and Management of Nature Reserves, in ENVIRONMENTAL POLICY AND BIODIVERSITY (R. EDWARD GRUMBINE, ED. 1994). ‘An emerging tenet of landscape ecology is that the patchy structure is important to ecological functioning at a variety of levels of biological organization, and is itself worthy of conservation and management attention’. Id. at 76 (citation omitted).

See 16 U.S.C. §1532(5)(A) (1973, as amended).

33 U.C.S. §1344.

Included in this group of statutes are law that create parks, preserves, and other protective enclosures, and laws that require a permit to dredge or fill wetlands.  Laws protective of ecosystems also exist on the state and local level.  These governments, not restricted by the limitations imposed by the US Constitution’s Commerce Clause (U.S. CONST. art. I, § 8, cl 2 (‘The Congress shall have Power…[t]o regulate Commerce…among the several States….’)), can make designations pertaining to local use that are not limited to resources affecting interstate commerce.  Local zoning laws can also effect the result of ecosystem protection.  Protection at this level is limited by the nature of these land use designating bodies – they are also responsible to raise tax revenue for their survival as communities.  This presents a fundamental conflict of interest, and the protection of ecosystems usually comes out on the losing end.

One of the major difficulties in protecting ecosystems in the US is the distinction between public and private property. As noted, private property is protected by the US Constitution’s Fifth Amendment’s provisions that are called the takings clause, which has developed a theory of regulatory takings. But the distinction between the private and public domains is not clear by any means, certain rights that have accrued to private citizens on public land may amount to a property right protected by the takings clause. These interests, including mining, grazing, and timber, complicate the ability of the government to regulate activities on public lands. U.S. CONST. amend. V.

See generally, Geotract, http://wetlands2.nwi.fws.gov/nwi_mapplet/

Although delineation of these features might not be as clear and issue, especially through the eye of the law.
“[E]lectricity generation has been responsible for … over sixty percent of the country's sulfur dioxide emission, which is one of the pollutants that causes acid rain, among other things. It is also responsible for approximately twenty-four percent of the emissions of nitrogen oxide from stationary sources, which is the other pollutant that causes acid rain.  It is also one of the causes of smog.”  Ann Berwick, Symposium: Legal Advice to Nature: Counseling the Environment on What to Expect from the New Environmental Initiatives, 33 New Eng. L. Rev. 619, 620 (1999).
33 U.S.C. §1362(14).
42 U.S.C. §§7401 et seq.
33 U.S.C. §§1312-1315.
It is noteworthy, in this regard that the political boundaries do not match the ecosystems in most instances.  Certain exceptions exist, especially where watersheds are being used as political entities.  Unfortunately, these instances are the rare exception.
See Peter Q. Eschweiler, In Accordance With A Comprehensive Plan, The Need for Planning Consistency in New York State, 10 PACE ENVTL. L. REV. 603(1993).
See <http://giswww.co.westchester.ny.us/>.
<http://giswww.co.westchester.ny.us/wcgis/BaseMapping/overview.htm>.
In the U.S., states are divided into counties, which are themselves divided into towns.  Cities and villages are political entitles as well, that can be either within a town, or themselves contain towns.  The political subdivisions thus created, when overlaid with fire districts, school districts, library and sewer districts, and postal codes, represent an agglomeration that often defies logic.  These subdivisions rarely, if ever, have any environmental significance.
<http://map-server.ci.rye.ny.us/wwwgis/rye_800.html>.
See generally C. DANA TOMLIN, GEOGRAPHIC INFORMATION SYSTEMS AND CARTOGRAPHIC MODELING (1990).
See generally, Jeremy Speich, Comment: The Legal Implications of Geographical Information Systems, 11 ALB. L.J. SCI. & TECH. 359(2001).  See also Ron J. Aschenbach, Note: Geographic Information Systems as a Decision Making Tool, 52 OHIO ST. L.J. 351(1991).
See Robert J. Goldstein, Pace University School of Law Virtual Environmental Law Library, <http://www.pace.edu/lawschool/env/vell6.html>.
See generally, Jennifer L. Phillips, Comment: Information Liability: The Possible Chilling Effect Of Tort Claims Against Producers Of Geographic Information Systems Data, 26 FLA. ST. U.L. REV. 743(1999).
Id.
One example is the Working Group on Information Technology of the Commission on Environmental Law of the International Union for the Conservation of Nature (IUCN).  Their mandate is as follows:

Mandate: The IUCN Commission on Environmental Law Working Group on Information Technology for Environmental Law is charged with fostering the access to and use of the Internet and related means of information technologies to further the knowledge of environmental law and to establish the integrated research systems needed for environmental law to assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable.

More specifically, the Working Group on Information Technology for Environmental Law shall:

One of the ways to accomplish this goal is by the establishment of networks of environmental lawyers that facilitates the communication of ideas and experiences.
See Bradford C. Mank, Preventing Bhopal: "Dead Zones" and Toxic Death Risk Index Taxes, 53 OHIO ST. L.J. 761, 783(1992).
For example, a map with subjective input might indicate that an area was only a ‘paper park’ – one existing only on paper – rather than a legally protected area.
‘[R]esilience stability – i.e., rapid recovery from disturbance – is enhanced by the presence of many different species in the landscape.  Whether a high species diversity increases resistance stability, i.e., the ability of and ecosystem to remain the same (stable) in the face of disturbance,’ is still questioned.  Odum, supra note 1 at 58(emphasis supplied).

‘Resistance is a measure of the degree to which a system is changed from an equilibrium state following a disturbance,’ and ‘resilience is the speed with which a perturbed system returns to equilibrium.’  Smith, supra note 2 at 688.

 It is easy to grasp this concept when one looks at particular ecosystems.  Imagine a forest made up entirely of a single species of tree.  If that tree is subject to a disease, the whole forest dies.  Add a second species of tree and those survive.  Multiply the number of species and the chances for survival multiplies – regardless of the threat (disturbance).

S.T.A. PICKETT & RICHARD S. OSTFIELD, THE SHIFTING PARADIGM IN ECOLOGY IN A NEW CENTURY FOR NATURAL RESOURCES MANAGEMENT, 275 (Richard L. Knight & Sarah F. Bates, eds. 1995). ‘Adaptation of Environmental Law to the Ecologists' Discovery of Disequilibria illustrates how the conception of landscapes as shifting mosaics collapses many of the traditional property categories we have used to acquire interests in land.’ See generally Fred P. Bosselman & A. Dan Tarlock, Symposium on Ecology and the Law: The Influence of Ecological Science on American Law: An Introduction, 69 CHI. KENT L. REV. 847 (1994).

‘[R]esilience is the speed with which a perturbed system returns to equilibrium,’ and ‘[r]esistance is a measure of the degree to which a system is changed from an equilibrium state following a disturbance,’ Smith, supra note 2 at 688.
It also includes genetic richness within species.
Odum, supra note 1 at 55.
Perhaps the most compelling statement is by the eminent biologist Edward O. Wilson, “[i]n reflecting on the preservation of species and genetic diversity, it is worth remembering that a butterfly is far more complicated than any machine ever constructed by man.”  ESA Oversight, Hearings Before the Subcomm. on Envt’l & Pub. Works Comm., 97th Cong., 1st Sess. 366 (1981)(statement of E.O. Wilson), as cited in Robert V. PERCIVAL, ETAL.  ENVIRONMENTAL REGULATION: LAW, SCIENCE, POLICY, 1183(1996).
See generally David Farrier, Conserving Biodiversity On Private Land: Incentives for Management or Compensation for Lost Expectations? 19 HARV. ENVTL. L. REV. 303 (1995).
See Better Data for Better Decisions http://www.biodiversity.org/.
Members include Birdlife International, Conservation International, International Species Information System, Traffic International, Wetlands International, World Conservation Monitoring Centre, and IUCN Commissions on Protected Areas, Law, Species Survival.
But see Phillips supra note 24.
See e.g. 33 U.S.C. §1311(Clean Water Act requiring technology-based standards for effluent limitations); 42 U.S.C. §7408(h)(national  clearinghouse for emission control technology under the Clean Air Act).
See USDA-NRCS Soil Survey Division, http://www.statlab.iastate.edu/soils/index.html/.
See Center for International Earth Science Information Network, http://www.ciesin.org/.
One way of achieving an objective set of parameters for the protection of ecosystems would be through the use of a ratings system on ecosystem health.  If a scale, say of one-to-ten were used, with ten being the healthiest ecosystem, and one being the least healthy, those scientifically generated ratings could be applied across political boundaries and help verify the subjective evaluations of experts analyzing protective laws.  For instance, a low rating might belie the claims of an expert whose subjective views of adequate protection were biased
 



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