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Just as I focus my students in Law 2050 on spotting and following trends, I try to do the same in my field of environmental and natural resources law. One of the tends I have followed for years is the emergence of the “ecosystem services” framework. Some significant recent developments warrant this post:
The ecosystem services framework focuses on the economic values humans derive from functioning ecosystems in the form of services rather than commodities, such as water filtration, pollination, flood control, and groundwater recharge. Because many of these services exhibit public good qualities, ecologists and economists began forging the concept of ecosystem services valuation in the 1990s as a way of improving land use and resource development decision making by ensuring that all relevant economic values were being taken into account when making decisions about the conservation or development of “natural capital” resources. Research on ecosystem services exploded onto the scene and has been going strong since in ecology, economics, and other disciplines bearing on environmental and natural resources management.
The policy world quickly picked up on the ecosystem services idea as well. For example, in 1998 the President’s Council of Advisors on Science and Technology (PCAST) issued a report emphasizing the importance of the nation’s natural capital. The United Nations embraced the concept at the global scale with its Millennium Ecosystem Assessment, which assessed the status of ecosystem services throughout the world and explicitly tied ecosystem services to human prosperity.
By contrast, uptake in law was slow to come. Almost two decades after the PCAST report, it is fair to say that the ecosystem services concept has made few inroads into “law to apply” status in the form of legislative and regulatory text. In one prominent example, when the U.S. Army Corps of Engineers and the Environmental Protection Agency issued a joint regulation in 2008 overhauling their policies on compensatory mitigation under Section 404 of the Clean Water Act, the agencies adopted a watershed-scale focus and declared that compensatory mitigation decisions would take compensating losses to ecosystem services into account. See 33 C.F.R. 332.3(d)(1). That and the few other federal initiatives to use ecosystem services in decision making, while on the rise, have been ad hoc and uncoordinated.
But that is set to change. On October 7, 2015, the Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and Office of Science and Technology (OST) issued their Memorandum for Executive Departments and Agencies on Incorporating Ecosystem Services into Federal Decision Making (the Memorandum). If fully implemented, the Memorandum has game-changer potential to infuse the ecosystem services concept deep into the fabric of environmental and natural resources law.
The Memorandum “directs agencies to develop and institutionalize policies to promote consideration of ecosystem services, where appropriate and practicable, in planning, investments, and regulatory contexts.” The goal of doing so is “to better integrate in Federal decision making due consideration of the full range of benefits and tradeoffs among ecosystem services associated with potential Federal Actions.” The scope of the policy goal is broadly stated to include all federal programmatic and planning activities including “natural-resource management and land-use planning, climate-adaptation planning and risk-reduction efforts, and, where appropriate, environmental reviews under the National Environmental Policy Act (NEPA) and other analyses of Federally-assisted programs, policies, projects, and regulatory proposals.” To facilitate agencies in achieving its policy goals, CEQ will prepare a guidance document outlining best practices for: (1) describing the action; (2) identifying and classifying key ecosystem services in the location of interest; (3) assessing the impact of the action on ecosystem services relative to baseline; (4) assessing the effect of the changes in ecosystem services associated with the action; and (5) integrating ecosystem services analyses into decision making. In the interim, agencies are by March 30, 2016, to have submitted documentation describing their current incorporation of ecosystem services in decision making and establishing a work plan for moving toward the goals of the policy directive. Id. at 4. Meanwhile, CEQ has assembled a task force of experts from relevant agencies to craft the best practices implementation guidance, which will be subject to interagency review, public comment, and, by November 2016, to external peer review consistent with OMB’s information quality procedures and standards. Once the guidance is released, agencies will adjust their work plans as needed. The Memorandum also acknowledges that “ultimately, successful implementation of the concepts in this directive may require Federal agencies to modify certain practices, policies, or existing regulations to address evolving understanding of the value of ecosystem services.”
Environmental lawyers should watch the Memorandum’s implementation over the next year closely, for if agencies follow its directives faithfully and fully the ecosystem services framework will be teed up to permeate the policies and regulations of a broad range of federal programs that touch our scope of practice. In particular, incorporation of best practices for ecosystem services impact assessments under NEPA would project the ecosystem services framework into state, local, and private actions receiving federal agency funding or approval. To be sure, there is plenty of work to be done before one can evaluate the Memorandum’s impact on the mainstreaming of the ecosystem services framework into environmental law. Significantly, the timeline of the Memorandum directives will deliver the best practices implementation guidance in the final days of the Obama administration, leaving it to the incoming administration to determine where to take it. Nevertheless, simply by declaring the incorporation of ecosystem services into federal agency decision making as an Executive policy and laying out the tasks and timelines for doing so, the issuance of the Memorandum has done more to advance the ecosystem services framework as a legal concept than has any previous initiative. And in the long run, the reality is that the ecosystem services framework is by now so deeply ingrained in ecology, economics, and other disciplines of environmental and natural resources management, it will become increasingly difficult for agencies not to incorporate it. Hence I believe I can safely predict that the momentum the Memorandum will give for mainstreaming the ecosystem services framework into environmental law will not easily be turned around. Stay tuned!
Valuing ecosystem services—the streams of benefits functioning ecosystems provide to human populations—has become a powerful theme in natural resources management research and policy, but not so much yet in hard law to apply. The problem has not been with the ecosystem services that are obvious and well registered in markets—crops, recreation, timber, and water supply to name a few. We have plenty of law surrounding services like those. Rather, ecosystem services such as groundwater recharge by wetlands, storm surge protection by coastal dunes, and pollination by wild honeybees are not bought and sold in markets and thus suffer from a classic Tragedy of the Commons dilemma. People get that these are valuable benefits in a big picture sense, but incorporating these values in law—whether in protective regulations, performance standards, incentives, or in core principles of property law—has proven difficult. Yet with climate change looming as a threat to property in general—increased flooding, drought, storm surges, and other threats are not far into the future—it seems that there would be some urgency to incorporating ecosystem services ideas into property law.
One big step in that direction has come from a recent decision by the New Jersey Supreme Court regarding how much compensation beachfront owners are due when the state plops sand dunes on their property. See Borough of Harvey Cedars v. Karan, 70 Atlantic Rep. 524 (NJ 2013). Like many states, New Jersey (with federal help) spends considerable money shoring up the shore, so to speak, by importing sand to beaches subject to erosion. Sometimes these projects go further, in the form of constructing massive dunes on the beach to, in the court’s words, “serve as a barrier-wall, protecting homes and businesses…from the destructive fury of the ocean.” In other words, the idea is to create or supplement the dune ecosystem to enhance the flow of one very valuable ecosystem service—stopping storm surges. And after Hurricane Sandy, there’s not a person in New Jersey who doesn’t get that.
Well, maybe there are a few. There’s another ecosystem services that’s pretty valuable to beachfront owners—their view of the beach! You can see the problem already—higher dunes mean less view. So when the federal, state, and local governments embarked on a dune project in Long Beach Island, some property owners resisted. The project involved purchasing perpetual easements from the beachfront owners and constructing a 22-foot dune system the length of the beach. The local borough was more than willing to provide compensation for the easement, and most property owners were happy to have the dunes. One couple, however, decided not to sell. The borough exercised its power of eminent domain and took the easement from them anyway. Things got interesting when it came time to decide how much “just compensation” was due to the property owners.
This situation involves what is called a “partial taking” of property. If the borough had taken title to the entire property, the owners and the government would have argued over the fair market value of the entire parcel, which while contestable is fairly easy to determine within a reasonable range the same way appraisers estimate home values for loans. It’s trickier when the government is taking only part of the property (in this case the easement), because one has to determine the value of what was taken as well as the impact on the value of what remains. For over a century, New Jersey law allowed the government to offset the losses to the property owners for that “remainder” (in this case the diminished view) with the benefits the owners receive from the public project that required the partial taking (in this case the protection from the ocean), but only if the benefits were “special benefits” the owner received independent of the “general benefits” the project provides to the public at large. At the trial level in the case, the trial court ruled that the protection benefits from the dune project were general benefits, which meant the jury could not include them as offsets. Under that approach, the jury awarded the owners $375,000, and the appellate court affirmed. As is easy to imagine, if the government had to pay every beachfront owner a sum like that–and there were a lot of owners who refused to participate in the project–the project would have been dead in the water (no pun intended). (Note: I’m going to stay away from the part of the story involving public vilification of the recalcitrant owners, like when Governor Christie called them “knuckleheads.”)
The New Jersey Supreme court turned the case into an opportunity to ditch the outdated special benefits/general benefits doctrine. After a very careful review of the history and policy of the doctrine, the court concluded that “the terms special and general benefits do more to obscure than illuminate the basic principles governing the computation of just compensation in eminent domain cases.” Instead, the court ruled, “just compensation should be based on non-conjectural and quantifiable benefits, benefits that are capable of reasonable calculation at the time of the taking.”
From there the court made some rather obvious but refreshing observations about the dune project, as in “without the dune, the probability of serious damage or destruction to the [owners’] property increased dramatically over a thirty-year period,” and thus it is “likely that a rational purchaser would place a value on a protective barrier that shielded his property form partial or total destruction.” Seriously, this is not rocket science—if you want your house standing in 30 years, deal with the dunes!
The court sent the case back to the trial court with instructions that “at that trial, the Borough will have the opportunity to present evidence of any non-speculative, reasonably calculable benefits that inured to the advantage of the [owners’] property at the time of the taking.” In other words, calculate the value of the ecosystem services the dunes provide to beachfront owners. That trial never took place, however, because the parties settled – the borough paid the owners one dollar in compensation (and covered $24,000 of their attorneys fees). One can reasonably assume the property owners saw the writing on the wall.
The Karan case is a huge development for the law of ecosystem services. Not only did the court recognize the inherent value of the dunes, it gave that value firm legal status. One can anticipate many public infrastructure projects in the future as part of climate change adaptation, many of which will require use of or impacts to private property. As with the Long Beach Island dune project, one can hope that many of these infrastructure projects will rely on restoration, enhancement, or creation of natural ecosystems such as dunes, wetlands, and riparian habitat. Certainly just compensation will be due to the property owners, but at least in New Jersey the calculation of just compensation will include recognition of and valuation of the ecosystem services provided by those ecosystem-based projects.