If our focus is either on preventing damage or providing the funds for quick restoration, this raises the question of whether existing public law rules are adequate to meet these needs. There are a number of different public law rules that affect ecosystems in the United States and I want to just talk briefly about each of these so that you can understand the scope of public governance as well as the ways in which that public governance regime is not adequate to address coastal risks from climate change and the protection of ecosystem services. One example on the governance continuum for ecosystem services is a form of prescriptive rules in the Endangered Species Act. The Endangered Species Act is a federal statute that prohibits the "take" by any person of an endangered species, but it also protects against and outlaws the jeopardizing of what's known as critical habitat by certain types of actions. If an ecosystem provides critical habitat to an endangered species, the Endangered Species Act may be a tool that can help to prevent damage. But what are some of the limitations on this form of law? The first is that it's not absolute protection. The government can authorize the take by any person of an endangered species and can also authorize the jeopardizing of critical habitat, as long as a habitat conservation plan is put into place. There are other exemptions, for example, in the sake of protecting national security, but these are small potatoes. The biggest problem is that the Endangered Species Act only prohibits actions by persons or agencies. It does not protect against harm caused by extreme weather events. The second major problem is that the Endangered Species Act only protects ecosystems that serve as habitats, so doesn't specifically protect other ecosystem services. Finally, there are other problems in that it doesn't necessarily provide compensation to address past damage to an ecosystem. This one doesn't really get us there. A second option on the governance continuum for ecosystem services is the regulatory permit scheme set up in the Clean Water Act. This is a broader system than that of the Endangered Species Act, because the Clean Water Act regulates the discharge of what's known as dredged or fill material into the waters of the United States and the term waters of the United States includes some wetlands. This system protects all ecosystem services that are provided by those covered wetlands. The idea is that a developer, for example, a real estate developer who wants to build a shopping mall in an area that contains a wetland would first need to get a permit from the federal government before putting some fill material into the wetland and by putting fill material into the wetland the wetland would no longer be able to serve its purpose of absorbing storm water and flood water in the case of a storm surge. What are some of the limitations of the Clean Water Act permit program? Like the Endangered Species Act, this only acts on the actions of persons. Meaning, it only prohibits persons from harming wetlands in this particular way by putting dredge or fill material into them. It does not prevent or protect against harm that's caused by extreme weather events. Second, the Clean Water Act does not provide any funding for restoration of wetlands that have been damaged, and as with the Endangered Species Act, there is a permit system which means that the federal government can provide a permit to an entity that wishes to fill in a wetland. The protection of the wetlands is again not absolute. A third example on the governance continuum for ecosystem services is what's known as Payments for Ecosystem Services or PES. Payments for Ecosystem Services can either be a system of public law or a purely private market-based system. The idea is that there is an agreement between the beneficiary of the ecosystem services and the entity on whose property that ecosystem exists. The beneficiary pays the person or entity who owns the land that provides the service. A few examples of public programs for Payments for Ecosystem Services exist. One is the United States Conservation Reserve Program. In this program, the federal government pays farmers to promote conservation of topsoil as well as wildlife habitat on their farmland. Other countries also use payments for ecosystem services to protect ecosystems from degradation and damage. Australia has a program that conserves native vegetation on private land by paying landowners not to harvest the vegetation. Costa Rica has an extremely well-established program since 1997 that has paid private landowners to provide what's known as carbon sequestration, the sinking of carbon biodiversity conservation, and aesthetic services to promote tourism as well as other environmental benefits. There are other programs in other countries as well as private market-based approaches. The benefit to ecosystem services of these PES or Payments for Ecosystem Services programs are that the private land owner receives some money or value for conservation of the ecosystem that's providing the services. But what happens if no one owns the ecosystem? This can be a serious problem if what we're talking about is a coastal ecosystem like a coral reef that doesn't sit on anyone's land or property. Another option on the governance continuum for protecting ecosystem services is using private property ownership or land acquisition. Either public actors like state, federal, or local governments, or private actors, like conservation organizations, for example, The Nature Conservancy, or a local land conservation organization can actually purchase the land or an easement for land conservation to protect a particular ecosystem from damage. This often involves, if the government is involved, what's known as the power of eminent domain, meaning the power to condemn property even if the landowner does not willingly wish to part with it. This system of land acquisition in fact, is what the City of New York did to protect its water supply. When faced with the choice of spending billions of dollars to build a great infrastructure water treatment plant , instead, New York City spent hundreds of millions of dollars to acquire land in the Catskill/Delaware Watershed and to ensure therefore that harmful pollutants didn't enter New York City's water supply in the first place. One of the benefits of a land acquisition program for conservation of ecosystem services, private landowners receive value for the conservation of the ecosystems that are on their land and this is a way in some cases for governments to step in and get involved, but there are limitations, again, what if no one owns the ecosystem? What if it's a coastal ecosystem that exists in the water rather than on private property, and this can also be over protective. It may end up being very expensive to purchase a large portion or parcel of land if the ecosystem only resides on a small portion of that land. By and large the examples on this governance continuum are examples of programs that attempt to prevent harm to ecosystems in the first place, by preventing persons from dumping pollution or filling them up or taking the species or destroying the habitat. What about restoration? We've talked not only about prevention of harm but also ecosystem restoration if it has been damaged. There are actually provisions in US law for what are called natural resource damages in two statutes, the Superfund statute and the Oil Pollution Act. Both of these statutes have provisions where the overarching aim is an incentive-based system to prevent damage by deterring actors from harming a natural resource in the first place. But these statutes also provide for restoration of damaged ecosystems services by providing funding for their restoration if they've been harmed. Natural resources under the statutes include, land, fish, wildlife, biota, air, water, and other such resources belonging to, managed by, or held in trust by, or otherwise controlled by the United States or a state local or tribal or foreign government. In contrast to the governance tools that I mentioned earlier, the benefits of natural resource damages provisions in these two statutes are that they provide funds to restore these ecosystems if damaged to their baseline conditions, but there are some significant limitations. The most significant one is the timing. The natural resource damages assessment generally follows after a cleanup. Again, if we're talking about the Superfund statute or the Oil Pollution Act, this is after an oil spill or a release of hazardous chemicals. This ultimately can take years. It can take years to clean up or restore a damaged ecosystem. If we're talking again about a coral reef that's providing benefit to a coastal set of property and land owners, years may simply be too long, we need funds for quick restoration. What about disaster relief programs? In the United States, under a law called the Stafford Act, there are programs that address physical dislocation from intense storms, sea level rise, tornadoes, wildfires, including loss of livelihood and lost income. What happens in these cases under the Stafford Act is that the Federal Emergency Management Agency steps in and the federal government makes either a declaration of a major disaster or a declaration of an emergency, and without going into all of the details about these two different types of disaster relief programs, each one unlocks certain funding for individuals and households and business owners who've been harmed by an extreme weather event. This could include repair and restoration of facilities, rebuilding of roads, etc. But these disaster relief programs simply don't cover restoration of ecosystem services or habitats that have been harmed. Again, these fall short at meeting the two goals that we identified, prevention of harm or prevention of damage and quick restoration. The key takeaway, is that existing legal tools are inadequate to meet the two challenges that we have identified. They generally focus on harms that had been caused by persons rather than harms caused by extreme weather events. The existing programs that do provide for ecosystem restoration can take years and not days or weeks to restore the damaged ecosystem. Even disaster relief programs, tend to focus on helping people and rebuilding property or gray infrastructure but not restoring damaged ecosystems. Now each of these programs is a worthy program in and of itself to meet the goals that it has set out for itself, but if we're talking about the goals of quick restoration and preventing harm we need to look elsewhere.
