University of Richmond Law Review
Publication Title (Abbreviation)
U. Rich. L. Rev.
This is a tale of two disappearing wetlands - those surrounding Louisiana's Gulf Coast and those fringing the Chesapeake Bay - each providing new insight into the old quandary of unintended consequences that lies at the center of natural resource management. Louisiana's losses follow three hundred years of natural resource engineering to accomplish effective flood control along the Mississippi River, while the Chesapeake losses follow implementation of among the most meticulous wetlands-protection programs of its time. And yet, New Orleans suffered a catastrophic flood, and Chesapeake wetlands continue to disappear. How could this happen? Call it the "Natural Resources Law of Unintended Consequences." As described in the piece, Louisiana's pioneering natural resource managers tried to prevent flooding by channelizing the Mississippi River. However, river management efforts failed to account for the interdependence of laterally disparate elements of large-scale regional ecosystems, and interfering with the natural cycle of floodplain sediment deposition starved the coastal wetlands that could have mitigated the storm surge that drowned New Orleans after Hurricanes Katrina and Rita. Having learned this lesson, Virginia resource managers attempted to protect critical intertidal wetlands around the Chesapeake by establishing a development-free jurisdictional boundary landward of the vulnerable wetlands. Nevertheless, when landowners then hardened the shoreline up to the legal boundary, they inadvertently doomed the very wetlands intended for protection by hydrologically severing them from the natural shoreline systems that sustain them during such periods of sea-level rise as we are now experiencing. This time, program designers had failed to account for how ecosystems evolve over time in response to foreseeable external factors. The ironic result in both cases is that well-intended natural resource management accomplished the exact opposite of what policymakers had hoped for. Natural resource management inevitably proceeds from a state of disquieting uncertainty; we never have all the science, all the data, or all the information we need to make vexing management decisions about such complex adaptive systems as regional ecosystems. But the lesson is not that natural resource planning is a hopeless endeavor dooming us to failure no matter how well-intended. The lesson is to better align assessment techniques with the model of network connectivity demonstrated by complex adaptive systems. Complex adaptive systems - found not only in nature but also in economics, organizational behavior, developmental learning, game theory, and neuroscience - are characterized by interaction between components within a unified system that enables change to reverberate back and forth within the system, confounding more linear interpretations of cause and effect. Ideally, environmental intervention should thus follow assessment that takes full account of: (1) how the networked components of regional ecosystems work laterally; (2) how the systems work over ecologically meaningful periods of time; and (3) how remote network factors may intervene from beyond the forward linear path of conventional causal assessment. This third element is the most challenging, and the least satisfied by conventional assessment practices. Whereas traditional causal assessment begins with the proposed action and traces only those potential impacts that flow forward in time from the proposal, the Chesapeake story shows that some natural resource management strategies will fail on account of network interplay that will not appear in this forward-limited chain of projected events. A better approach would also consider how remote network factors might independently interfere with the success of the proposal. In other words, rather than simply considering what undesirable results might flow forward from the proposed action, assessment should also ask what foreseeable network factors are likely to intervene, at any point in the foreseeable time-line, that could cause the proposed action to become itself undesirable. Such causally-ambidextrous assessment techniques are frequently used in consumer product design, including software quality assurance, by which testers consider not only such harms as the product might cause, but also what uses might harm the product, what circumstances might arise in which the product could be misused, and therefore, the circumstances in which product use might fully backfire, producing a result opposite the product's intended purpose. Ultimately, the message of the lost Louisiana and Chesapeake wetlands is that more ambitious environmental assessment has been made necessary by our own increasing power to alter the natural environment. The efficacy with which we have reshaped the Mississippi Delta since resource planning began in New Orleans (and the resulting devastation of the City after Hurricane Katrina) shows that we have simply become too good at what we do - too effective at natural resource management - and that assessment technique must advance to match our awesome capacity for environmental modification. The piece explores ways of mitigating the added burden of more ambitious assessment practices, but urges natural resources to begin experimenting with more causally-sophisticated assessment. Only by grappling with this problem can we hope to overcome the Natural Resources Law of Unintended Consequences.
New Orleans, the Chesapeake, and the Future of Environmental Assessment: Overcoming the Natural Resources Law of Unintended Consequences, 40
U. Rich. L. Rev.
Available at: https://ir.law.fsu.edu/articles/675