In the 1960s and early 1970s, Congress passed a series of laws that profoundly affected Western ecosystems and human relationships to them. The Clean Air Act, designed to reduce air pollution, led the way in 1963, and in 1970, the National Environmental Policy Act, sometimes called the Magna Carta of environmental protection, created a review process for federal projects. In 1972, the Clean Water Act established requirements for the restoration and maintenance of waterways, and one year later, the Endangered Species Act created protections and required recovery plans for fish, wildlife and plants deemed threatened or endangered. Conservation finally seemed to have a solid legal foundation.
Six decades later, that foundation is in serious need of retrofitting. Though the West has the nation’s highest concentration of areas permanently protected for biodiversity, it also has some of the highest concentrations of species at risk of extinction. Rising temperatures, precipitation extremes and larger, more destructive wildfires, all driven by climate change, are complicating pre-existing — and increasingly pressing — conservation problems such as habitat loss. “Too many of our environmental laws assumed a static system,” said Barbara Cosens, a professor emerita at the University of Idaho College of Law. “We’re no longer faced with a static system. We have a system that’s changing, and changing faster than anyone thought it would.”
The result, said Melinda Morgan, a University of New Mexico geography and environmental studies professor, is that federal conservation laws are “the equivalent of driving a Ford Pinto when we could and should be using a Tesla.”
High Country News asked five Western law and conservation experts to re-imagine these longstanding laws and their implementation. How might they better carry humans and Western landscapes into the future?
Monte Mills, director of the University of Washington’s Native American Law Center
Big idea: Embed treaty responsibilities into land-management agency missions
Each of the federal agencies that manages Western public lands is governed by an act of Congress: The Organic Act created the National Park Service and charged it with conserving scenery, history and wildlife for future generations, while the Federal Land Policy and Management Act tasked the Bureau of Land Management with balancing multiple uses and managing resources for sustainable yields over time. But tribes were not involved in the discussions that led to these laws, and federal treaty responsibilities to tribal nations were not explicitly included in agencies’ original missions. The result, Mills said, is that agencies tend to see treaty responsibilities as secondary. He believes that public-lands law and Indian law should be on the same footing. “Do it in a way that equally prioritizes your trust obligations and comes at it from the perspective that (tribal nations) are the original inhabitants of the land,” he said. Agencies should establish sustained, meaningful bilateral relationships with tribes, not simply invite them to “consult” on a proposed project or an existing land-management decision or plan. “The on-the-ground-relationships are key here,” he said. This paradigm shift would also help land managers meet their founding missions, as Indigenous-led land management often enhances biodiversity. Mills noted that agency leaders could initiate change by, for instance, establishing incentives and evaluation metrics that reward employees’ attention to trust responsibilities and encourage support for shared stewardship.
Robin Kundis Craig, environmental law professor at the University of Southern California Gould School of Law
Big idea: Focus on habitat, not species
For half a century, the Endangered Species Act has ensured that species are the basic units of conservation in the West. Craig wants to change that. “I would switch it away from thinking about conservation on a species-by-species basis and more comprehensively think about preserving good habitat, for whatever happens to end up there, on a broader basis,” she said. Rather than waiting to act until species are in crisis, she said, an ecosystem-level approach could help prevent endangerment. To accomplish this, the existing law could give more weight to habitat loss when considering the listing of a species as threatened or endangered; when more than a certain number of species that share a habitat type are listed, restoration could be conducted at the ecosystem level. Habitat conservation plans, already mandatory for developers seeking “incidental take” permits under the Endangered Species Act, could also serve as a vehicle for strengthening the law. A new analysis published in the journal PLOS ONE, which found that most species don’t receive protection under the law until their populations are dangerously small, lends urgency to these recommendations.
Big idea: Redefine Clean Water Act violations
Craig believes that the Clean Water Act needs to be updated to address the challenges of climate change. Federal water regulation, strengthened by the 1972 amendments to the law, required states to set water-quality standards, while separate regulations created an “antidegradation policy,” meaning that if a water body was suitable for, say, public drinking water or recreation, it had to remain usable for that purpose. But the law makes no distinction between human-induced environmental changes that can be effectively regulated, such as industrial discharges of toxins, and those that are byproducts of climate change. So if climate change warms a stream to the point that trout or salmon cannot thrive, states could be considered in violation of water-quality standards and antidegradation policies. Ironically, this could prevent states from moving forward on renewable energy development and other projects intended to address the causes of climate change. “Protections that were put in were good and well-intentioned, but might trap states,” Craig said. She added that the EPA could create an analysis process that allows states to eliminate “existing use” requirements when climate impacts make a use impossible to maintain.
Barbara Cosens, professor emerita at the University of Idaho College of Law
Big idea: Bring adaptive management to the forefront of the National Environmental Policy Act process
Under the National Environmental Policy Act (NEPA), environmental impact analyses of federal projects are carried out before a proposed action is taken. “There’s no monitoring to see if what’s predicted actually happens,” Cosens said. “There’s no … flexibility to really handle situations where there’s high uncertainty. NEPA was a great idea for a period of time where things were not changing so rapidly, but it needs adjustment now.” Instead of a single analysis, she’d like NEPA to require adaptive management, in which environmental impacts are monitored over the course of a project and adjustments are made in response to changing results and conditions.
Cosens works in the Columbia River Basin, where she sees the limitations of NEPA firsthand. “How exactly is temperature going to impact salmon in the Columbia River if we do this project or that project?” she said. “NEPA doesn’t handle it well.” The renegotiation of the Columbia River Treaty between the United States and Canada, which began in 2018, is still underway. While the discussions are not public, limited press releases and surrounding conversation make Cosens believe that participants are taking uncertainty seriously. “It looks like (the renegotiation) has the potential to address the kind of issues we don’t know the outcome of just yet,” she said. One day soon, she hopes NEPA will too.
Sammy Matsaw (Shoshone-Bannock and Oglala Lakota), research biologist for the Shoshone-Bannock Tribes Fish and Wildlife Department
Big idea: Adequately fund co-management by tribes
The Shoshone-Bannock Tribes created Matsaw’s position — research scientist and principal investigator — not only to promote tribal participation in discussions about resource management, but to involve the tribes in the production of knowledge about those resources. Matsaw focuses on chinook salmon and steelhead research, but he is spread too thin, and, as a result, he said, “co-management” — tribal-federal management of select federal lands and resources within the framework of existing laws — is often an empty word. “We need to clone people like myself,” Matsaw said. Federal and state managers regularly ask for his time, and while he appreciates the ask, he is usually expected to work for free. He has a simple request: Fund tribal expertise.
Big idea: Integrate traditional ecological knowledge
Matsaw believes that traditional ecological knowledge holds valuable solutions to modern problems. “We see uncertainty as part of our management, (because) it always has been,” he said. Incorporating traditional ecological knowledge into scientific assessments and monitoring, Matsaw said, is one way of helping static laws and approaches deal with a changing environment. He’d like more funding for collaborations that center Indigenous teaching and systems of knowledge. “Individualism does not fare well as a scientist trying to apply knowledge in a changing climate,” he said. “We need to work in teams with different backgrounds, training and knowledge that is more natural for Indigenous peoples.”
Melinda Morgan, geography and environmental studies professor at the University of New Mexico
Big idea: Tackle an outdated approach to mining
The General Mining Law of 1872 lets citizens and companies explore minerals and establish rights on federal lands without authorization from any government agency. Unlike the coal, oil, and gas industries, which pay the government for the right to extract resources from public lands, hardrock miners pay no such royalties. “It operationalizes colonization, the idea that we need to give things away in order to get people out into the American West,” Morgan said. “We just don’t need to do that. We do not need to give minerals away. When it comes to energy, there’s just no free lunch.” Though decades of reform efforts have come up short, Morgan is optimistic about new bills that would impose royalties and stronger environmental protections. But she pointed out that reformers face a new challenge: The demand for electric vehicles, recently boosted by incentives in the Inflation Reduction Act, could increase mining of lithium, cobalt and other “battery metals” and create new resistance to regulation.
Kylie Mohr is an editorial fellow for High Country News writing from Montana. Email her at kylie.mohr@hcn.org or submit a letter to the editor. See our letters to the editor policy.
This article appeared in the print edition of the magazine with the headline The next chapter of environmental law.
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