Early this year, several significant environmental protection actions on federal public lands—reinstating timber harvest and road construction restrictions in the Tongass National Forest, withdrawing lands adjacent to the Boundary Waters Canoe Area Wilderness from mineral and geothermal leasing, and vetoing proposed mining for the headwaters of Bristol Bay, Alaska—relied upon the intrinsic value of nature, particularly undisturbed nature, as a determining factor in the decision-making process. Understanding nature as possessing inherent value is one of the key principles of ecological law. In the Natural Resources & Environment Spring 2021 issue, I examined the concept of ecological law, an emerging approach to law that integrates ecological limits, considers the integrity of ecological systems to be paramount, and applies systems thinking. See Katharine Bleau, Ecological Law: A New Era for the Environment, 35 Nat. Res. & Env’t, no. 4, Spring 2021, at 53. In this article, I highlight recent decisions by the federal government to conserve three notable ecosystems that apply ecological law principles while operating within the existing environmental law regime.
Boundary Waters. The first key ecosystem involves the 1.1-million-acre Boundary Waters Canoe Area Wilderness (BWCAW), a lake-land wilderness in northeastern Minnesota with numerous glacial lakes, hundreds of miles of streams and rivers, and mature forests. Extending along 150 miles of the U.S.–Canada border, the BWCAW, along with neighboring Superior National Forest, Voyageurs National Park, and Grand Portage National Monument, and Ontario’s Quetico Provincial Park combine to create a contiguous forested region generally called the “Boundary Waters.” This area occurs within the Laurentian Mixed Forest Province, or the “North Woods,” a unique transitional zone between southern temperate hardwood forest and northern boreal forest characterized by tree species from both ecosystem types. Protections for the BWCAW are given by the Boundary Waters Canoe Area Wilderness Act of 1978, which, among other things, directs the U.S. Forest Service (USFS) to maintain high water quality and minimize “to the maximum extent possible” the environmental impacts from mineral development. Pub. L. No. 95-495, § 2(3), (4), 92 Stat. 1649.
Beneath the Superior National Forest, a large geologic formation called the Duluth Complex contains extensive deposits of copper, nickel, platinum, palladium, and other associated metals. Interests in mining this complex increased in the past two decades, prompting USFS to submit a withdrawal application to the Bureau of Land Management, the agency that manages the subsurface mineral estate of the national forest, to withhold an area of the federal forest from development for mining and geothermal purposes. See USFS, Rainy River Withdrawal Environmental Assessment (EA), U.S. Dep’t of Agric., at 2–3 (Dec. 2022); 86 Fed. Reg. 58,299 (Oct. 21, 2021). Section 204 of the Federal Land Policy and Management Act (FLPMA) authorizes the Secretary of the Interior to make such withdrawals, based on information and environmental analyses provided by the applicant, the USFS in this case. See 43 U.S.C. § 1714(c); 43 C.F.R. pt. 2300.
Through the withdrawal, USFS sought to protect and preserve, in a comprehensive and holistic manner, the fragile natural and cultural resources in this region from the adverse effects of mineral and geothermal exploration and development. See USFS, Rainy River Withdrawal EA, supra, at 5. The agency was concerned that mining in this area, upstream of the BWCAW, would result in permanently stored waste materials that could produce and release highly acidic effluent containing metals and other contaminants. USFS further acknowledged the risks posed by failure of mitigation measures, containment facilities, and remediation at mine sites and related facilities, which could lead to “irreversible degradation of this key water-based wilderness resource.” 86 Fed. Reg. at 58,300. Based on these factors and additional information in the environmental analysis, the secretary of the interior withdrew approximately 225,504 acres of the Superior National Forest from mineral and geothermal federal leasing laws for 20 years, subject to valid existing rights, under FLPMA through Public Land Order No. 7917.
Tongass National Forest. Covering nearly 17 million acres in southeast Alaska, the Tongass National Forest is the largest remaining intact, old-growth temperate rainforest on Earth. 88 Fed. Reg. 5252, 5255 (Jan. 27, 2023). It supports abundant fish and wildlife, including all five species of Pacific salmon, and is home to the Tlingit, Haida, and Tsimshian Peoples. Id. Old-growth forests are ecologically complex ecosystems harboring large amounts of biomass and carbon storage due to their age and undisturbed nature.
In 2001, the U.S. Department of Agriculture (USDA) promulgated the Roadless Area Conservation Rule, which prohibits (with limited exceptions) timber harvesting, road construction, and road reconstruction within designated Inventoried Roadless Areas (IRAs). 66 Fed. Reg. 3243, 3244 (Jan. 12, 2001). USDA designated these areas (totaling approximately 58.5 million acres of national forests) to address concerns over increasing land development and urbanization, in the context of multiple-use land management. Id. at 3245. IRAs carry “the greatest likelihood of altering and fragmenting landscapes” within the National Forest System, due to their large, relatively undisturbed state. Id. They are located within one-third of the nation’s major watersheds and provide critical ecosystem services, including clean water, soil, and air; habitat for diverse fish and wildlife; refuge for at-risk species; and natural scenic values. Id. Much of the mature and old-growth forest within the Tongass is insulated from development because of their designation as IRAs, which total about 9.3 million acres, or 55% of the forest.
Various groups have continuously pressured USDA to allow timber harvesting, energy development, and mining for rare minerals within the Tongass IRAs since the agency promulgated the Roadless Area Conservation Rule in 2001. 85 Fed. Reg. 68,688 (Oct. 29, 2020). In October 2020, USFS promulgated a final rule (referenced as the “2020 Alaska Roadless Rule”) exempting the Tongass National Forest from the 2001 Roadless Conservation Rule. Id. However, USDA repealed the October 2020 rule in January 2023, and thereby reinstated the pre-existing management regime. 88 Fed. Reg. 5252 (Jan. 27, 2023). As part of the agency’s rationale for reinstating protections, USDA referred to the “extraordinary ecological values of the Tongass” and the specific value of undeveloped land, which provides watershed protection, climate benefits, and overall ecosystem health. Id. at 5256. Ultimately, the agency weighted these values above economic factors and determined the rule “would not have major adverse impacts to the timber, energy, and mining industries.” Id. In considering local economies, USDA found the rule would benefit or neutrally affect the primary economic drivers in southeast Alaska, including fishing and tourism. Id.
Bristol Bay Watershed. Located in southwestern Alaska and spanning roughly 40 million acres, the Bristol Bay watershed is a vast, productive landscape with significant ecological, cultural, economic, and recreational value. This nearly pristine watershed provides healthy, intact, contiguous habitats for diverse wildlife and fish populations, most notably anadromous wild Pacific salmon, and is home to numerous Alaska Native villages and communities. The U.S. Environmental Protection Agency (EPA) has described this ecosystem as possessing “unparalleled ecological value,” with its largely undisturbed wetlands, streams, and rivers supporting subsistence, commercial, and recreational fisheries. EPA, Final Determination of the USEPA Pursuant to Section 404(c) of the Clean Water Act, Pebble Deposit, Southwest Alaska, Executive Summary, at ES-1 (Jan. 2023). Water resources within the watershed sustain the world’s largest run of sockeye salmon, which produces about half of the global harvest of this species. Id.
Private industry groups have long sought to establish a large-scale mine of the Pebble deposit—a large, low-grade deposit containing minerals such as copper, gold, and molybdenum—located in the headwaters of the Bristol Bay watershed. Based on existing technology, any mining conducted in the region would necessarily result in the discharge of dredged or fill material into Bristol Bay water resources. The latest mining plan, submitted by Pebble Limited Partnership along with its Clean Water Act (CWA) section 404 dredged or fill material discharge permit application in 2017 (and revised in 2019), proposed to construct a mine that would operate for 20 years, after which long-term water management and monitoring would be necessary for centuries. Id. at ES-5.
Beginning in 2010, Alaska Native communities in Bristol Bay; subsistence, commercial, and recreational fishing groups; conservation groups and nonprofit organizations; and others requested EPA to use its authority under section 404(c) of the CWA to protect the region’s fisheries from mining threats. See 33 U.S.C. § 1344(c). CWA section 404(c) authorizes EPA to (1) prohibit or withdraw the specification of any defined area as a disposal site and (2) deny, restrict, or withdraw the use of any defined area for specification as a disposal site. Id. EPA can make this section 404(c) determination if it finds, following notice and opportunity for public hearings, that discharge of dredged or fill materials into the area would have unacceptable adverse effects on water resources, shellfish beds and fishery areas, wildlife, or recreational areas. Id. Following years of dispute and analysis, EPA issued a Final Determination under section 404(c) of the CWA after finding certain discharges of dredged or fill material associated with mine development of the Pebble deposit would unacceptably adversely affect certain anadromous fishery areas in the Bristol Bay watershed. EPA, Final Determination, supra, at 5-1. The Final Determination prohibits the disposal of dredged or fill material in certain waters of the United States occurring in the Bristol Bay headwaters for the Pebble Mine proposed project or future proposals that would result in the same or greater levels of loss or change in aquatic resources. Id. at 5-12. EPA has only used this authority under CWA section 404(c) 14 times in the history of the Act.
Several hallmarks of ecological law are demonstrated through these three conservation actions. First, the actions illustrate nature-centered decision-making. Despite the economic and societal benefits from allowing land use development within the three ecosystems, the federal government determined that preserving the natural systems so they may continue to function and thrive has intrinsic value. Second, preserving ecological integrity is considered vitally important. Predicted, and even the risk of, environmental effects from proposed mining and other development to these ecosystems and the resources they provide were deemed unacceptable, for present and future generations. And third, the decisions are part of a whole-system approach to ecosystem preservation, consistent with the current administration’s America the Beautiful initiative to conserve 30% of the nation’s land and waters by 2030.
Yet, agency actions such as those discussed in this article are largely limited by the environmental law structure, and thus unable to achieve the permanence ecological law contemplates. BLM’s land withdrawal within the Superior National Forest is subject to renewal after 20 years, final rules promulgated by USFS prescribing management regimes for national forests may be repealed or revised by the agency in the future, and EPA’s veto under the CWA applies only to the Pebble Mine project and similar proposals, without affording greater protections to the Bristol Bay watershed. To realize the goals of ecological law, more far-reaching and long-lasting change will be needed.