Publication Date

Winter 2017

Volume

47

Document Type

Article

Subject Area(s)

Law

Abstract

After rancher Ammon Bundy’s forceful occupation of the Malheur National Wildlife Refuge to protest federal “tyranny” in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event’s significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of antienvironmental, anti-federal alienation among many working people has been given light consideration in climate scholarship and policy. Yet, this alienation goes beyond Bundy. Altogether, these are social issues within social-ecological systems (SESs) of various scales, which the law must evolve to address.

Using the Malheur occupation as a focal point, I suggest that adaptive governance, also known as adaptive comanagement, is not only appropriate for operationalizing resilience theory in SES regulation, but is also likely a pathway to steer climate governance more toward reconciliation over alienation, reducing the risks conflicts pose to effective outcomes. Scholars have recognized that a shift from environmental advocacy’s traditional focus on adversarial approaches is necessary in the face of climate change, but few have focused specifically on how to achieve this shift. Two anti-federal, antienvironmental social movements—the Land Transfer Movement and the War on Coal Campaign—illustrate the impediment this particular form of alienation within SESs has posed to effective climate governance, while also highlighting the longstanding and inhibiting rift between labor and environmental interests.

I examine one case study, the Malheur Comprehensive Conservation Plan planning process, as an illustration of adaptive governance successfully reconciling ranchers, environmentalists, tribes, and several agencies—mitigating anti-federal and antienvironmental alienation and the work–environment rift, to the benefit of federal SES climate adaptation mechanisms (and showing that Malheur was an ironic choice for Bundy’s protest). By contrast, a second case study, the administrative rulemaking process that created the federal Clean Power Plan, illustrates how process can fuel alienation and undermine the substance of federal climate policy. Adaptive governance receives more consideration for public lands and adaptation issues than for climate mitigation, but there is potential in the climate mitigation context for the United States Environmental Protection Agency to apply some of the adaptive governance and reconciliation principles illustrated at Malheur.

The research for this Article began prior to the 2016 presidential election and will be published in the weeks following the 2017 inauguration. Although the relevance of much of environmental law scholarship may have been called into question in the new political landscape, this discussion now seems more important than ever in light of the country’s ongoing political and cultural divides that continue to stymie efforts to address climate change.

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First published by Environmental Law (Lewis & Clark Law School) Winter 2017.

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