January 01, 2012

Vantage Point

David Hodas

We live in an enormously complex country that is part of an even more complex world that operates through interconnected natural, economic, energy, and social systems. Because “the world is more messy, more crowded, more interconnected, more interdependent, and more rapidly changing than ever before, the more ways of seeing the better. The systems thinking lens allows us to reclaim our intuition about whole systems . . .” Donella H Meadows, Thinking in Systems: A Primer 6 (2008).

To be sustainable, our laws must be congruent to the economic, environmental, and social systems that define our world. However, our laws have not kept pace with our growing economy, population, and technological innovation. Adjusted for inflation our economy has more than tripled since 1970. In 2010, U.S. GDP was about $14.5 trillion in an intertwined global economy of $74.5 trillion. As we enter 2012, world population continues its exponential expansion: from 1 billion in 1820, 2 billion in 1930, 3 billion in 1960, 4 billion in 1974, 5 billion in 1987, 6 billion in 1999, to about 7 billion in 2011. U.S. Central Intelligence Agency, The World Factbook (Dec. 1, 2011).

Our “modern” environmental laws, such as the Clean Air Act and the Clean Water Act, are now 40 years old. These environmental laws were designed to address specific environmental problems in discrete ways. The Clean Water Act treats water pollution, other than oil, but the Safe Drinking Water Act addresses drinking water. The Oil Pollution Act is a separate entity. Air pollution is addressed by the Clean Air Act, and hazardous materials by a variety of laws independent of one another, and each with its own definition of what is hazardous. Each environmental law operates in its own silo; each has different definitions and lists of regulated pollutants, and focus on different media—water, air, soil, food, pesticides, etc. None consider ecosystems as a whole. The National Environmental Policy Act had system thinking aspirations, but now only requires relatively meaningless procedural incantations about the specific effects of specific projects. The Endangered Species Act is sometimes used, controversially, as a proxy for ecosystem concerns. But it was not designed to carry the burden of managing complex systems.

In this issue, we challenged authors to consider how environmental, energy, and natural resource law could address problems as a part of complex systems. Complex systems are hard to manage. Our piecemeal legal system has few tools to support systems thinking. Our laws simply do not measure up to the challenges we face. Yet, there are a many examples of efforts to identify and analyze legal issues within complex systems. Some are more successful than others, but, as each article in this issue demonstrates, smart lawyers are making progress in thinking about specific problems within the context of complex systems. Their systems perspective is a new approach to structuring environmental, energy, and natural resources law that could sustainably meet the challenges of our modern world.

The articles in this issue examine a wide range of complex systems: Britain’s integrated permit systems as a possible model for sustainable approaches in the United States, wind energy and electricity transmission in the western United States, the global food system, water quality criteria across water sheds, fisheries, adaptive resource management of river systems, fugitive emissions in the Marcellus Shale air shed, the threat to organic farming from patent enforcement of genetically modified seeds, and flood control in the Red River. There are no easy answers, but thinking in complex system terms is the necessary first step to better law.

David Hodas

David Hodas is the issue editor for the Winter 2012 issue of Natural Resources & Environment.