Restoring the Environment and Restoring Democracy: Lessons from the Colorado River
By Robert W. Adler
INTRODUCTION
In The Land of Little Rain, an austere account of the desert east of the Sierra Nevada mountains, Mary Austin wrote of her neighbor Naboth's field, “not greatly esteemed of the town, not being put to the plough nor affording firewood, but breeding all manner of wild seeds that go down in the irrigating ditches to come up as weeds in the gardens and grass plots.” This was a Progressive Era community at the turn of the twentieth century, bent on “reclaiming” the desert for productive uses. Its citizens viewed Naboth as irresponsible, if not guilty of the heinous sin of waste. All he really did, however, was nothing, allowing nature to take back her own:
It is interesting to watch this retaking of old ground by the wild plants, banished by human use. Since Naboth drew his fence about the field and restricted it to a few wild-eyed steers, halting between the hills and the shambles, many old habitués of the field have come back to their haunts. The willow and brown birch, long ago cut off by the Indians for wattles, have come back to the streamside, slender and virginal in their spring greenness, and leaving long stretches of the brown water open to the sky.
Austin describes a basic clash of values about the human relationship to the land. Naboth is “not esteemed of the town” because he doesn't put his land to economically productive use, and worse yet, sends his weeds into their manicured gardens. But Austin lauds him for allowing this “retaking of old ground.”
This Symposium marks a quarter century of modern environmental law and asks what is in store for that field during the next twenty-five years. In my view, environmental restoration will be one significant theme in the next quarter century of environmental law. A whole new science of restoration ecology has developed over the past several decades, and other disciplines have responded with their own contributions. Relatively little attention has been paid to this trend in the legal community. It is time to take stock of how the growing practice of environmental restoration meshes with the existing generation of environmental laws.
In this article, I address this issue in three ways. First, I place restoration as the third and most recent phase in the evolving project of environmental law and policy. Second, I argue that environmental restoration involves some very fundamental value choices, which are not always addressed or resolved in a sufficiently democratic fashion under the current legal regime. Third, I suggest that the goal of environmental restoration is not always served well by the existing generation of environmental statutes. These principles are elucidated by analysis based on ongoing efforts to restore the species, habitats and ecosystems of the Colorado River. I begin, therefore, with a brief description of the Colorado River and its surroundings, the significant ways in which it has been altered by human development, and the impacts of those changes on its native species.
In The Land of Little Rain, an austere account of the desert east of the Sierra Nevada mountains, Mary Austin wrote of her neighbor Naboth's field, “not greatly esteemed of the town, not being put to the plough nor affording firewood, but breeding all manner of wild seeds that go down in the irrigating ditches to come up as weeds in the gardens and grass plots.” This was a Progressive Era community at the turn of the twentieth century, bent on “reclaiming” the desert for productive uses. Its citizens viewed Naboth as irresponsible, if not guilty of the heinous sin of waste. All he really did, however, was nothing, allowing nature to take back her own:
It is interesting to watch this retaking of old ground by the wild plants, banished by human use. Since Naboth drew his fence about the field and restricted it to a few wild-eyed steers, halting between the hills and the shambles, many old habitués of the field have come back to their haunts. The willow and brown birch, long ago cut off by the Indians for wattles, have come back to the streamside, slender and virginal in their spring greenness, and leaving long stretches of the brown water open to the sky.
Austin describes a basic clash of values about the human relationship to the land. Naboth is “not esteemed of the town” because he doesn't put his land to economically productive use, and worse yet, sends his weeds into their manicured gardens. But Austin lauds him for allowing this “retaking of old ground.”
This Symposium marks a quarter century of modern environmental law and asks what is in store for that field during the next twenty-five years. In my view, environmental restoration will be one significant theme in the next quarter century of environmental law. A whole new science of restoration ecology has developed over the past several decades, and other disciplines have responded with their own contributions. Relatively little attention has been paid to this trend in the legal community. It is time to take stock of how the growing practice of environmental restoration meshes with the existing generation of environmental laws.
In this article, I address this issue in three ways. First, I place restoration as the third and most recent phase in the evolving project of environmental law and policy. Second, I argue that environmental restoration involves some very fundamental value choices, which are not always addressed or resolved in a sufficiently democratic fashion under the current legal regime. Third, I suggest that the goal of environmental restoration is not always served well by the existing generation of environmental statutes. These principles are elucidated by analysis based on ongoing efforts to restore the species, habitats and ecosystems of the Colorado River. I begin, therefore, with a brief description of the Colorado River and its surroundings, the significant ways in which it has been altered by human development, and the impacts of those changes on its native species.