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                            AMERICAN BAR ASSOCIATION
                   STANDING COMMITTEE ON ENVIRONMENTAL LAW
                 SECTION OF ENVIRONMENT, ENERGY, AND RESOURCES

                           REPORT TO THE HOUSE OF DELEGATES



                                       RECOMMENDATION

1   RESOLVED, That the American Bar Association urges federal, state, territorial and tribal
2   governments, when considering and approving legislation, regulations and policies, to preserve
3   and enhance the benefits that people derive from ecosystems, with due regard for economic,
4   human and social impacts.

5   FURTHER RESOLVED, That the American Bar Association urges the United States
6   government to engage in active discussions and to negotiate and ratify treaties or other
7   agreements with the Canadian and Mexican governments to address cross-border ecosystem
8   services issues in a coordinated and collaborative manner.
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                                           REPORT

Introduction

       It is well understood that solving environmental challenges requires a better
understanding of natural systems. One need look no further than relationships between the loss
of wetlands in southern Louisiana and loss of lives and property in the aftermath of Hurricane
Katrina to recognize the important public benefits conferred by what are known as “ecosystem
services.”

        Preserving and enhancing the services that the ecosystems provide can best be
accomplished through comprehensive and integrated strategies that seek to preserve entire
natural systems rather than focusing narrowly on particular pollutants or species. Recognizing
the importance of ecosystems services helps to organize and direct otherwise fragmented efforts
by public agencies at all levels of government and by private organizations. It acknowledges the
benefits to the public, enhances biodiversity and protects the environment. Preserving and
enhancing ecosystems is an important step toward achieving sustainable development, a goal
endorsed by the American Bar Association‟s 2003 Resolution on sustainable development. The
present Resolution encourages government decisionmakers to consider ecosystem services
concepts and principles in policy, law and regulation.

       This Report consists of an introduction and five additional parts. As Part One describes,
our country has a long tradition of appreciating ecosystem services. Part Two explains ecosystem
services and related concepts. Part Three discusses how federal laws and international treaties
already embrace and implement consideration of ecosystem services, even if indirectly. Part
Four discusses the cooperative efforts of the United States, Mexico and Canada to address cross-
border ecosystem issues. Part Five concludes that the ABA should encourage decisionmakers to
pursue their objectives in a way that preserves and enhances ecosystems services and to consider
ecosystem services in a more systematic, integrated manner with due regard for economic,
human and social impacts.

       I.      Tradition of Recognizing Ecosystem Services

        Ecosystem services have long been recognized in a qualitative sense; writers such as
Rachel Carson, Aldo Leopold, John Muir and others articulated many years ago the importance
of the natural world, both for its own sake and for the human race. Natural capital is of vital
importance to human well-being, but as a public good its value is sometimes overlooked. More
recently, we have begun to understand and measure the utilitarian values of ecosystem
protection. From this perspective, the importance of ecosystems to humans is in part based on
the services that they provide.1 Water purification, water supply, mitigation of floods and
droughts, decomposition of wastes, generation of soil, and pollination of crops are among the


1
  See, National Research Council, Valuing Ecosystem Services: Toward Better Environmental
Decision-Making (2005).



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ecosystem functions or services frequently cited.2 Although it is difficult to quantify the value of
ecosystem services with precision, economists and scientists in the natural, social and political
sciences have placed high monetary and social value on them. 3 Many ecosystems are under
threat from human activity. Thus, it is an appropriate juncture for the ABA to encourage
decisionmakers to consider ecosystem services.

        It is generally accepted that “Silent Spring” ignited the movement that led to the system
of environmental protection that we enjoy today, but it is easy to forget that Rachel Carson
focused on the threat posed to entire ecosystems by the uncontrolled use of chemical pesticides.
Over the following decades, a variety of legal and governmental institutions have been created to
tackle these and other environmental threats. Ironically, however, as these institutions emerged,
their connections to the original ecological or systemic concerns are often lost. Instead, statutes
and regulations focused on narrower goals such as controlling effluents and emissions from
individual sources, or preventing harm to individual species. Most notably, our major Federal
air, water and waste statutes and regulatory programs developed on a “media-specific” basis.
While these efforts have achieved much in terms of their stated goals and addressed several acute
environmental threats, in many locations ecosystems continue to degrade and their societal
benefits diminish.

        II.    Ecosystem Services and Related Ecosystem-Level Concepts

      In the introduction to her highly influential 1997 book, Nature’s Services: Societal
Dependence on Natural Ecosystems, Gretchen Daily states:

        Ecosystem services are the conditions and processes through which natural
        ecosystems, and the species that make them up, sustain and fulfill human life.
        They maintain biodiversity and the production of ecosystem goods, such as
        seafood, forage, timber, biomass fuels, natural fiber, and many pharmaceuticals,
        industrial products and their precursors. The harvest and trade of these goods
        represent an important and familiar part of the human economy. In addition to the
        production of goods, ecosystem services are the actual life-support functions, such
        as cleansing, recycling, and renewal, and they confer many intangible aesthetic
        and cultural benefits as well.4



2
   See, Gretchen Daily, Nature‟s Services: Societal Dependence on Natural Ecosystem (1997) at
10; Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: A Framework for
Assessment (2003) at 3.
3
  Costanza, d‟Arge and deGroot, The Value of the World’s Ecosystem Services, 389 Nature
253-260 (1997).
4
    Daily note 2, supra. Daily‟s enumeration of ecosystem services includes the following:
      1. purification of air and water; mitigation of floods and droughts,
      2. detoxification and decomposition of wastes,


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        The Millennium Ecosystem Assessment (MEA), an encyclopedic 2006 report examining
the state of and policy recommendations for the world‟s ecosystems, utilizes “ecosystem
services” as the core of its organizing framework. The MEA states: “Ecosystem services are the
benefits people obtain from ecosystems. These include provisioning services such as food and
water; regulating services such as regulation of floods, drought, land degradation, and disease;
supporting services such as soil formation and nutrient cycling; and cultural services such as
recreational, spiritual, religious and other nonmaterial benefits.”5

        While our recommendation focuses on ecosystem services, many policymakers and
practitioners refer to a broader “ecosystem approach” which has as its focus restoring and
maintaining “the health of ecological resources together with the communities and economies


      3. generation and renewal of soil and soil fertility,
      4. pollination of crops and natural vegetation,
      5. control of the vast majority of agricultural pests,
      6. dispersal of seeds and translocation of nutrients,
      7. maintenance of biodiversity, from which humanity has derived key elements of its
         agricultural, medicinal, and industrial enterprise, and
      8. partial stabilization of climate.
5
   Millennium Ecosystem Assessment available at http://millenniumassessment.org. The MEA
categorizes ecosystem services as provisioning, regulating, supportive or cultural. MEA‟s
substantial enumeration of ecosystem services include the following:
    Provisioning Services
    Food and Fiber: This includes the vast range of food products derived from plants, animals,
    and microbes, as well as materials such as wood, jute, hemp, silk, and many other products
    derived from ecosystems.
    Fresh Water: Fresh water is another example of linkages between categories, in this case,
    between provisioning and regulating services.
    Regulating Services
    Water Regulation: The timing and magnitude of runoff, flooding, and aquifer recharge can be
    strongly influenced by changes in land cover, including, in particular, alterations that change
    water storage potential of the system, such as the conversion of wetlands or the replacement
    of forests with croplands or croplands with urban areas.
    Erosion Control: Vegetative cover plays an important role in soil retention and prevention of
    landslides.
    Water Purification and Waste Treatment: Ecosystems can be a source of impurities in
    freshwater but also can help to filter out and decompose organic wastes introduced into
    inland waters and coastal and marine ecosystems.
    Regulation of Human Diseases: Changes in ecosystems can directly change the abundance of
    human pathogens, such as cholera, and can alter the abundance of disease vectors, such as
    mosquitoes.
Millennium Ecosystem Assessment, at 3.



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that they support.”6 Understanding ecosystem services is key to such an ecosystem approach in
that protection and enhancement of ecosystem services benefit natural habitats as well as the
individual users of natural resources.7 The following have been identified as some key
advantages of an ecosystems approach:

           1)   Transparency. The ecosystem approach encourages public participation in the
                regulatory processes.

           2)   Preemptive regulation. The ecosystem approach anticipates and “addresses
                ecological problems before they become critical.” This proactive approach is
                more cost effective, “less disruptive to economic activity and less wasteful of
                public funds.”8

           3)   Regulatory certainty. The ecosystem approach allows private individuals and
                business to plan their entrepreneurial activities without unnecessary delays by
                permitting the regulatory bodies to address various issues endemic to a particular
                ecosystem simultaneously. The ability to regulate the entire spectrum of issues
                that arise in a specific ecosystem creates the potential for future “one-stop
                shopping for multiple permit requirements” by regulated individuals and
                industries.9

           4)   Community of interest approach. Because of increased public participation, the
                ecosystem approach allows the needs of all stakeholders (e.g., federal, state,
                territorial and tribal governments and regulatory bodies and regulated industries
                and landowners) to be identified and addressed.10


6
  The Interagency Ecosystem Management Task Force, The Ecosystem Approach: Healthy
Ecosystem and Sustainable Economies (June 1995) (The Interagency Ecosystem Management
Task Force was formed in 1994 and subsequently joined by representatives from fourteen (14)
regulatory agencies.), available at https://www.denix.osd.mil/denix/Public/ES-
Programs/Conservation/Ecosystem/ecosystem1.html (June 1995) (last visited June 30, 2006)
(hereinafter Ecosystem Task Force). See also, Edward Maltby, Ecosystem Approach: From
Principle to Practice, Ecosystem Service and Sustainable Watershed Management in North
China, International Conference, Beijing, P.R. China, (August 23-25, 2000) (noting that there is
no single or unique ecosystem approach), available at http://www.biotechnology.uni-
koeln.de/inco2-dev/common/contribs/18_maltb.pdf (last visited July 5, 2006).
7
    Id.
8
    Id.
9
    Id.
10
     Id.



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           5)     Sustainability. The ecosystem approach promotes sustainable, proactive
                  management of natural resources.

           6)     Streamlining of regulatory efforts. The ecosystem approach seeks to centralize
                  regulatory efforts which greatly reduces duplicative or conflicting regulation and,
                  consequently, preserves scarce financial resources.11

           7)     Minimizing of regulatory burdens. The ecosystem approach minimizes regulatory
                  burdens on smaller regulated entities and others.12

        An ecosystems approach also emphasizes certain procedural values, such as interagency
communication and coordination, stakeholder involvement, and use of sound science. While not
unique to the ecosystem context, these mechanisms help to support decision-making that takes
into account the full array of affected values and considers the full range of potential options for
action – options that may not be apparent when decisions are made within narrow organizational
or geographic confines.13

           III.   Existing Treaties and Laws Incorporating Ecosystem Services Into
                  Decisionmaking

        Ecosystem services are already considered, at least indirectly, in decisionmaking at
international, national and subnational levels. At the international level, the Convention on
Biological Diversity (the “Convention”) explicitly adopts an ecosystem approach in achieving
the Convention‟s main objectives: “the conservation of biological diversity, sustainable use of
its components, [and] fair and equitable sharing of benefits arising out of the use of genetic
resources.”14 Beginning in 1995, the Convention has taken definitive steps towards developing


11
  Id. (also advocates for combining of administrative support functions as a resource-saving
method).
12
     Id.
13
   The Task Force stressed the importance of interagency cooperation and communications
among other elements: “Consideration of all „relevant and identifiable ecological and economic
consequences‟ of federal actions and regulation; the importance of interagency communication
and cooperation best achieved through partnerships between the federal government and state
and local governments, tribal councils and other stakeholders (e.g., landowners); communication
with the public; accomplishment of regulatory mandates in an efficient and cost effective
manner; use of best available science; improvement of „information and data management‟ and;
allowing for a change in course once new information becomes known.” Id.
14
   Convention on Biological Diversity, available at
http://www.biodiv.org/convention/default.shtml (last visited June 30, 2006). See Maltby, supra
note 6.



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its ecosystem approach. The Convention‟s scientific advisory body, the Subsidiary Body on
Scientific, Technical and Technological Advice, proposed during its first meeting that “the
ecosystem approach should be the primary framework of action to be taken under the
Convention.”15 This proposal was subsequently adopted by the governing body of the
Convention.16 The Convention declared in its strategic plan that “[i]ntegrated management of
natural resources, based on the ecosystem approach, is the most effective way to promote” the
Convention‟s policies.17 The Convention‟s ecosystem approach consists of twelve (12)
principles.18




15
   Convention on Biological Diversity, SBSTTA1 Recommendations, available at
http://www.biodiv.org/recommendations/default.aspx?m=sbstta-01 (last visited June 30, 2006).
16
   Convention on Biological Diversity, COP 2 Decisions, available at
http://www.biodiv.org/decisions/default.asp?lg=0&m=cop-02 (last visited June 30, 2006).
17
   Convention on Biological Diversity, Convention on Biological Diversity Strategic Plan,
available at http://www.biodiv.org/sp/default.asp (last visited June 30, 2006).
18
   1. The objectives of management of land, water and living resources are a matter of societal
choice; 2. Management should be decentralized to the lowest appropriate level; 3. Ecosystem
management should consider the effects (actual and potential) of their activities on adjacent and
other ecosystems; 4. Recognizing potential gains from management, there is usually a need to
understand and manage the ecosystem in an economic context. Any such ecosystem
management program should: (a) Reduce those market distortions that adversely affect
biological diversity; (b) Align incentives to promote biodiversity conservation and sustainable
use; (c) Internalize costs and benefits in the given ecosystem to the extent feasible; 5.
Conservation of ecosystem structure and functioning, in order to maintain ecosystem services,
should be a priority target of the ecosystem approach; 6. Ecosystems must be managed within
the limits of their functioning; 7. The ecosystem approach should be undertaken at the
appropriate spatial and temporal scales; 8. Recognizing the varying temporal scales and lag-
effects that characterize ecosystem processes, objectives for ecosystem management should be
set for long term; 9. Management must recognize that change is inevitable; 10. The ecosystem
approach should seek the appropriate balance between, and integration of, conservation and use
of biological diversity; 11. The ecosystem approach should consider all forms of relevant
information, including scientific and indigenous and local knowledge, innovations and practices;
and 12. The ecosystem approach should involve all relevant sectors of society and scientific
discipline.

Convention on Biological Diversity, Conference of the Parties, Fifth Ordinary Meeting of the
Conference of the Parties to the Convention on Biological Diversity, Nairobi, Kenya, COP 5
Decisions, (May 2000), available at http://www.biodiv.org/decisions/default.asp?lg=0&m=cop-
05 (last visited July 5, 2006).



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         At the national level, consideration of an ecosystem approach provides a bridge between
statutes such as the ESA that promote conservation goals, and statutes such as the Clean Water
Act and Clean Air Act, that promote environmental quality and human health goals.19 The ESA‟s
statement of statutory purposes expressly supports ecosystem-level considerations: “to provide a
means whereby the ecosystems upon which endangered or threatened species depend may be
conserved.”20 The ESA authorizes the establishment and implementation of a program to protect
and conserve natural habitats and wildlife which is best achieved through federal-state
partnerships21 and partnerships with foreign nations.22 The ESA precludes the destruction of
critical habitat and authorizes the approval of habitat conservation plans. All of these goals are
consistent with considering ecosystem services. To best achieve the ESA‟s goals, the Services
have agreed to, inter alia:

           8)    Group listing decisions on ecosystem basis where possible;23

           9)    Cooperate with federal, state and private agencies in conducting comprehensive
                 status reviews;24

           10)   Develop a cooperative approach to developing and implementing conservation
                 efforts;25

           11)   Invite local jurisdictions, private organizations and individuals to participate in
                 developing and implementing recovery plans;26 and

           12)   Develop inter-agency resource-sharing agreements. 27


19
     See, James Salzman, Valuing Ecosystem Services, 24 Ecology Law Quarterly 887 (1987).
20
     16 U.S.C. §1531(b).
21
     16 U.S.C. §1535.
22
     16 U.S.C. §1537.
23
   Department of the Interior, Fish and Wildlife Service and Department of Commerce, National
Oceanic and Atmospheric Administration, Endangered and Threatened Wildlife and Plants:
Notice of Interagency Cooperative Policy for the Ecosystem Approach to the
Endangered Species Act (July 1, 1994), available at
http://training.fws.gov/EC/Resources/ES_Listing_and_Candidate_Assessment/ESA%20Folder/p
ol001.htm (last visited July 5, 2006) (hereinafter Notice of Policy).
24
     Id.
25
     Id.
26
     Id.



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Nevertheless, the species-specific focus of many of the ESA‟s provisions limits the Service‟s
authority to regulate ecosystems or to conserve species that are not listed as endangered or
threatened.

        The Intermodal Surface Transportation Efficiency Act of 1991 (“ISTEA”), with its goal
of developing transportation systems that meet the needs of both “the natural and constructed
environments,” also reflects ecosystem services.28 ISTEA sought to improve communication
with the general public by encouraging state and local transportation agencies to involve the
public in long-term transportation planning.29 ISTEA also required transportation agencies to
consider land use development when making long-term transportation policy decisions.30
Moreover, ISTEA allocated funds for environmental enhancement and preservation and sought
to mitigate damages to the natural habitat caused by construction activities.31 By prioritizing
land use decisions in the transportation process and advocating for development within the
backdrop of sustainability, Congress incorporated features of the ecosystem approach into
ISTEA.32

       While several bills have been introduced to explicitly mandate consideration of an
ecosystems approach in decisionmaking, none are federal law.33 Nonetheless, ecosystem

27
     Id.
28
   See John C. Nagle and J. B. Ruhl, The Law of Biodiversity and Ecosystem Management
(2002) at 375-379.
29
     Id.
30
     Id.
31
   Transportation Secretary Skinner, Summary of the Intermodal Surface Transportation
Efficiency Act of 1991, available at http://ntl.bts.gov/DOCS/ste.html (last visited June 30, 2006).
See also FHWA Policy Memorandums, Office of Environment and Planning, Memorandum of
Understanding to Foster the Ecosystem Approach (December 15, 1995), available at
http://www.environment.fhwa.dot.gov/ecological/eco_app_a.asp (last visited July 5, 2006).
31
     Ecosystem Task Force at 14.
32
   The ISTEA expired in 1997 and was most recently replaced by the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users. See generally The
Intermodal Surface Transpiration Efficiency Act of 1991, available at
http://en.wikipedia.org/wiki/Intermodal_Surface_Transportation_Efficiency_Act (last visited
July 5, 2006).
33
   The proposed Ecosystem Protection Act of 2005 declares a congressional policy of securing
“for present and future generations of Americans the enduring resource of protected large wild
lands.” To achieve the goals of assuring that “the American people have large areas of land in
healthy natural condition throughout the country to provide wildland recreational opportunities


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services are already considered indirectly in the U.S. policy and regulatory context. The
Interagency Ecosystem Management Task Force34 defines an ecosystem approach as “a method
for sustaining or restoring natural systems and their functions and values [which is] goal driven
… and based on a collaboratively developed vision of desired future conditions that integrates
ecological, economic and social factors … [and is] applied within a geographic framework
defined primarily by ecological boundaries.”35 While highly varied depending on context, an
ecosystem-based approach to decisionmaking emphasizes a comprehensive and holistic approach
to defining goals and designing strategies to achieve those goals, organized around frameworks
that are naturally defined, such as watersheds, or habitats large enough to sustain viable plant and
animal populations over the long term.

       Some federal agencies are also mindful of another closely related concept, “ecosystem
management,” which is relevant primarily in contexts where an agency or other organization is
responsible for the overall management of a natural resource.36 One commentator considers

for people, provide habitat protection for native wildlife and natural plant communities, and to
contribute to a preservation of water for use by downstream metropolitan communities and other
users,” the Ecosystem Protection Act would establish a National Forest Ecosystem Protection
Program. The Ecosystem Protection Act would also allow states which are without a national
forest or grassland of 50,000 or more acres, to acquire technical and financial assistance to create
a state ecosystem protection area. Ecosystem Protection Act of 2005 § 2(a) (Proposed Sept. 8,
2005), available at http://thomas.loc.gov/cgi-bin/query/F?c109:1:./temp/~c109bME7EI:e1922
(last visited July 5, 2006).

The proposed National Oceans Protection Act of 2005 likewise aims to “to secure for future U.S.
generations a full range of benefits of healthy marine ecosystems.” The bill acknowledges our
historic dependence on marine life and oceanic resources and the negative consequences which
inevitably flow from our continued use of those resources and mandates federal, state and tribal
governments to manage ocean resources in a way which preserves “the full range of their
benefits for present and future generations.” The bill also recognized that despite a plethora of
regulatory activities and programs focused on oceanic resources, the U.S. still lacks a “unified
and comprehensive policy toward the oceans.” Thus, consistent with the ecosystem approach, the
bill aims to improve communication between state and federal regulatory bodies while unifying
various regulatory activities. National Oceans Protection Act § 3 (Proposed June 9, 2005),
available at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN01224:@@@D&summ2=m& (last
visited June 30, 2006).
34
     Ecosystem Task Force note 6 supra.
35
     Id. at 14.
36
   Despite their sometimes interchangeable use, some commentors insist that the terms
ecosystem management and ecosystem approach are not fungible. Ecosystem management
reflects a regulatory judgment derived from human needs and ecological conditions of the time
which inevitably changes as the identified needs or ecological and economic conditions change.
Maltby, supra, at 213; see also IUCN, - The World Conservation Union, What is the Ecosystem


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ecosystem management to be an approach that “integrates scientific knowledge of ecological
relationships with a complex sociopolitical and values framework toward the general goal of
protecting native ecosystem integrity over the long term.”37 For example, EPA has recognized
that management on a watershed basis often provides the best means of preserving and
enhancing water quality and controlling stream flows. In this respect, EPA is following the lead
of interstate commissions such as the Delaware River Basin Commission and the Susquehanna
River Basin Commission, federal-interstate agencies established jointly by the United States
Government and the affected states to manage water resources on a regional basis.

        Specific to ecosystem services, commentary suggests that recent advances in the
scientific and technical realm portend an enhanced role for these concepts and principles as
applied in environmental policy, law and regulation.38


Approach, available at http//www.iucn.org/themes/cem/ourwork/ecapproach (last visited July 5,
2006) (defining ecosystem management as a process that integrates ecological, socio-economic
and institutional factors into comprehensive analyses in order to sustain and enhance the quality
of the ecosystem to meet current and future needs). The ecosystem approach reaches beyond the
immediate decision to regulate. It is “a distinctive process intended to integrate ecological,
economic, and social factors” which incorporates “a clearly defined vision of desired future
conditions.” Maltby, supra note 6, at 213. The ecosystem approach encompasses immediate
regulatory actions but envisions and encourages regulations which are “developed and conducted
within a broader ecosystem context, and evaluated over a longer time span.” Paul A. Garrett and
Fred G. Bank, The Ecosystem Approach and Transportation Development, Federal Highway
Administration, Office of Environment and Planning, Environmental Analysis Division (October
30, 1995), available at http://www.fhwa.dot.gov/environment/ECSYSAPP.htm (last visited June
30, 2006).
37
    The definition incorporates ten themes of ecosystem management: (1) Hierarchical context - -
a systems perspective recognizing connections of all levels of the biodiversity hierarchy, (2)
ecological boundaries - - looking at ecological connections across administrative/political
boundaries, (3) ecological integrity - - conservation of viable populations of native species, and
maintaining their evolutionary potential, (4) data collection and management of existing data - -
such as habitat inventory/classification, disturbance regime dynamics, baseline species and
population assessment, (5) monitoring - - to quantitatively evaluate success or failure, (6)
adaptive management - - continuous monitoring and reassessment, (7) interagency cooperation -
- partnerships among various public and private agencies and parties, (8) organizational change -
- in land management agencies, (9) humans embedded in nature - - humans influence and are
influenced by ecological processes and should use resources sustainably by maintaining basic
ecosystem patterns and processes, and (10) values - - human values play dominant role in
ecosystem management. R. Edward Grumbine, What Is Ecosystem Management?, 8
Conservation Biology 27 (1994).
38
   See, J.B. Ruhl, Steven Kraft and Christopher Lant, The Law and Policy of Ecosystem
Services, Island Press (2007); Ira Feldman and Richard Blaustein, “Ecosystem Services as a
Framework for Law and Policy,” 37 ELR 10756 (Environmental Law Institute) (2007).


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         The disconnect between law and ecosystems services is especially conspicuous
         because safeguarding ecosystem services is increasingly understood as an
         objective for environmental policy and regulation and fundamental to the
         management of natural resources. Moreover, there is a growing appreciation that
         the traditional “single media” focus (air, water, and waste) of environmental law
         and policy cannot secure provision of the resources, health, and communal needs
         that are central to human communities. Constructing law and policy informed by
         a new understanding of ecosystem services would surmount the cross-media
         limitations of the current environmental regulatory regime. An ecosystems
         approach to law and policy would more effectively and seamlessly address
         ecosystem services-dependent human needs, such as safeguarding natural
         resources, ensuring health and well-being, and promoting effective stewardship of
         the natural and altered settings in which we live.39

        Others have suggested that evaluating the impact of government decisions on ecosystems
could involve an evaluation process analogous to that undertaken under the National
Environmental Policy Act (NEPA). NEPA is designed to ensure that a government agency
assesses and considers the potential environmental impacts of potential agency decisions before
the decision becomes final. An ecological assessment would work much the same way by
evaluating the impacts to ecosystem functions and services of potential agency action. The
agency could then consider the ecological consequences of its action in the course of its
decision-making process.

         IV.    Cooperation with the Governments of Mexico and Canada

         Ecosystems are separated by natural rather than political boundaries. Because actions
taken in one part of an ecosystem may affect the functioning of the entire ecosystem,
coordination and cooperation between sovereigns exercising political authority over separate
geographic portions of a single ecosystem is essential to effective management of ecosystems
and preservation and enhancement of their services. Ecosystems that traverse the Mexican
border and the Canadian border with the United States can best be protected through bilateral or
trilateral cooperation.

        The foundations for North American intergovernmental cooperation are well established.
The Mexican and United States governments addressed their respective rights to shared waters in
the Treaty Relating to the Utilization of Waters of the Colorado and Tijuana Rivers and of the
Rio Grande (1944). This treaty, which constituted the second water treaty between the United
States and Mexico, transformed the then existing joint commission into the International
Boundary and Water Commission (“IBWC”).40 Although its mission is broader than ecological
cooperation, the IBWC provides a forum for the United States and Mexico to jointly address


39
     Feldman and Blaustein, at 10756
40
     See www.ibwc.state.gov/home.html.



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water quantity, water quality and flood control transboundary issues. One of its focuses is the
restoration of the Colorado River delta through cooperative efforts of both affected countries.

        Mexico and the United States have also entered into agreements specific to joint
environmental concerns. The 1983 La Paz Agreement provided for the protection, improvement
and conservation of the environmental surrounding the border in a coordinated manner.41 A
series of joint activities between EPA and its Mexican counterpart, SEMARNAT, has evolved
into a program now known as Border 2012. This program solicits stakeholder involvement
through four regionally-based workgroups. It also formed three binational workgroups to
address border problems: environmental health, emergency preparedness and response, and
cooperative enforcement and compliance.42

        Just as the United States and Mexico have historically cooperated on certain crossborder
environmental issues, so, too, the foundation for cooperation between the United States and
Canada is in place. The Boundary Waters Treaty of 1909 provides principles and mechanisms to
resolve disputes between Canada and the United States involving transboundary water. Article
VII of the treaty established the International Joint Commission (“IJC”) comprised of six
commissioners, three from each country. The IJC examines potential ecosystem effects in the
course of its evaluation of projects. For example, an expert study board that the IJC established
to evaluate a proposed open-pit strip mining operation in the 1970‟s recommended against
approval of the project in part on its proximity to a national park, and a wild and scenic river, and
on its potential adverse effect on environmentally sensitive species.

        The Great Lakes Water Quality Agreement of 1972 between United States and Canada,
renewed in 1978, contains elements of an ecosystem approach. The purpose of the Agreement,
to restore and maintain the chemical, physical and biological integrity of the Great Lakes Basin
Ecosystems,43 is parallel to the purpose of the Clean Water Act. The Agreement calls for the
establishment of specific objectives to protect beneficial uses from the combined effects of
pollutants, and for the control of pollutant loading rates for each lake basin to protect the
integrity of the ecosystems over the long term.44 The Parties have also recognized “that
restoration and enhancement of the boundary waters cannot be achieved independently of other
parts of the Great Lakes Basin Ecosystem with which those water interact,”45 and that



41
 See U.S.-Mexico Border 2012 Environmental Health Workgroup - available at
www.epa.gov/ehwg/basic_info.html.
42
     Id.
43
     www.epa.gov/glnpo/glwqa/1978/articles.html
44
     Id. at Article IV.3
45
     Id.



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cooperative programs and measures provide the best means of preserving aquatic ecosystems. 46
The IJC has the responsibility of assisting in the implementation of the Agreement. 47

        Cooperative efforts to address ecosystem degradation have occurred among state and
provincial governments as well as national governments. The eight states that border the Great
Lakes have taken steps to manage their resources jointly. The Council of Great Lakes Governors
was formed in 1983 to “encourage and facilitate environmentally responsible economic growth
through a cooperative effort between the public and private sectors among the eight Great Lake
States and with Ontario and Quebec.”48 The Council helps implement the Great Lakes Charter
of 1985, a voluntary agreement to manage water resources, and the Federal Water Resources
Development Act of 1986 which requires unanimous approval of the Governors on any out-of-
basin diversion or export of water. The Council meeting of 2005 led to the Great Lakes-St.
Lawrence River Basin Sustainable Water Resource Agreement and the Great Lakes-St.
Lawrence River Basin Water Resources Compact. These agreements require ratification by the
affected states and Canadian provinces.

        The Council is also working with other government partners to develop a strategy and
action plan to restore and protect the Great Lakes. President Bush‟s May 2004 Executive Order
directed the EPA Administrator to convene the Great Lakes Regional Collaboration (“GLRC”) to
address environmental and natural resource issues involving the Great Lakes.49 The GLRC
coordinates the efforts of the Council, EPA, the Great Lakes and St. Lawrence Cities Initiative,
the Great Lakes Congressional Task Force and the Great Lakes Indian Fish and Wildlife
Commission.50 The GLRC‟s strategy includes control of aquatic invasive species, habitat
conservation and species management, coastal health, cleanup of contaminated sites, control of
nonpoint sources of pollution, reduction of the discharge of toxic pollutants, development of a
sound information base and representative indicators to assess the ecosystem, and maintenance
of sustainable practices on land use, agriculture and forestry, transportation, industrial activity
and other areas.51 The GLRC has also expressed the importance of addressing Tribal
perspectives and has included representatives of the Canadian government as observers.52



46
     Id.
47
     Id. at Article VII
48
     www.cglg.org
49
     www.glrc.us/documents/E013340.pdf
50
     www.glrc.us/documents/strategy/glrc_strategy.pdf
51
     Id.
52
     Id.



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       V.       Conclusion

        Pursuing statutory or tribal goals in a way that preserves and enhances ecosystem
services requires a broad examination of how government actions will affect entire ecosystems
rather than a narrow concentration on particular pollutants or species. This examination
recognizes the role of natural capital in sustaining human well-being. Nonetheless, valuing
ecosystems services does not mean elevating ecosystem protection above all other values or
concerns such as economic growth or other social needs. Rather, recognizing the important
benefits provided by ecosystem services encourages decisionmakers to seek policies and
solutions that treat preservation and enhancement of ecosystems services as an integrated part of
a plan to facilitate sustainable growth. By utilizing integrated strategies to preserve and enhance
ecosystems services, governments can utilize natural systems and the services they provide to
advance their economic and social goals in a sustainable manner.

                                              Respectfully submitted,

                                              Howard Kenison, Chair,
                                              Standing Committee on Environmental Law

                                              Lee A. DeHihns, III, Chair
                                              Section of Environment, Energy & Resources




February 2008




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                             GENERAL INFORMATION FORM


Submitting Entities: Standing Committee on Environmental Law; Section of Environment,
Energy, & Resources

Submitted by: Howard Kenison, Chair, Standing Committee on Environmental Law; Lee A.
DeHihns, III, Chair, Section of Environment, Energy & Resources, respectively


1. Summary of Recommendation
The American Bar Association urges that federal, state, territorial and tribal governments, when
considering and approving legislation, regulations and policies, preserve and enhance the
benefits that people derive from ecosystems, with due regard for economic, human and social
impacts; and urges the United States Government to engage in active discussions and to
negotiate and ratify treaties or other agreements with the Canadian and Mexican governments to
address cross-border ecosystem services issues in a coordinated and collaborative manner.

2. Approval by Submitting Entities
Approved by the Standing Committee on Environmental Law the week of November 5, 2007;
and by the Section of Environment, Energy, and Resources on November 9, 2007, with renewed
approvals the week of December 10.

3. Has this or a similar recommendation been submitted to the House or Board previously?
Neither this Recommendation nor a similar recommendation has previously been submitted.

4. What existing Association policies are relevant to this recommendation and how
   would they be affected by its adoption?
A 2003 ABA policy on sustainable development is relevant. The present Recommendation,
which more narrowly focuses on management of ecosystems, will help to further Association
policy on sustainable development by encouraging governments to pursue integrated strategies to
preserve and enhance ecosystems services in a sustainable manner. A 2005 policy on oceans
protections called on Congress to take measures to improve management and regulation of
marine resources. The present Recommendation supports that policy as well, going further by
broadening the relevant governmental entities, specifying ecosystem services as a value to be
protected, and calling for cross-border cooperation on ecosystems services.

5. What urgency exists which requires action at this meeting of the House?
In 2003 the ABA adopted a policy position on sustainable development. Notwithstanding that
recommendation, ecosystems continue to degrade and their services continue to diminish. This
Recommendation and Report encourage implementation of the 2003 recommendation by urging
governments to preserve and enhance ecosystem services in a sustainable manner.




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101
6. Status of Legislation
This Report with Recommendations is not asking Congress to enact particular legislation but
rather to consider preservation and enhancement of ecosystem services in the course of enacting
future legislation. A number of bills involving various aspects of ecosystem management are
pending in Congress. For example, S.1583, the “Coral Reef Ecosystem Conservation
Amendments Act of 2007,” was introduced by Sen. Daniel Inouye on June 7, 2007, and the
measure is pending in the Senate Commerce, Science and Transportation Committee. S.2211,
“Global Warming and Acidification Coastal and Ocean Resiliency Act,” which in part addresses
ecosystems issues, was introduced on October 19, 2007 by Sen. Sheldon Whitehouse and
referred to the Committee on Commerce, Science and Transportation. In the House, H.R.1975,
the “Northern Rockies Ecosystem Protection Act,” was introduced on April 20, 2007 by Rep.
Carolyn Maloney, and the House Natural Resources Subcommittee on National Parks, Forests
and Public Lands held a hearing on the measure on October 18, 2007; and HR.21, “Oceans
Conservation, Education and National Strategy for the 21st Century Act,” was introduced on
January 4, 2007 by Rep. Sam Farr, with hearings held on April 26, 2007 by the Natural
Resources Committee – Subcommittee on Fisheries, Wildlife and Oceans.

7. Cost to the Association
The Report with Recommendations does not impose costs on the Association.

8. Disclosure of Interest (If applicable)
There is no known conflict of interest.

9. Referrals
The Report with Recommendations is being circulated to all ABA Sections and Divisions and to
the Standing Committee on Governmental Affairs.

10. Contact Person (Prior to the meeting)
Kenneth J. Warren
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103
215-977-2276 (w)
610-220-8184 (cell)

11. Contact Person (Who will present the report to the House)
Howard Kenison
Lindquist & Vennum PLLP
600 17th Street
Suite 1800 South
Denver, CO 80202-5441
303-454-0505 (w)
720-635-1711 (cell)




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                                  EXECUTIVE SUMMARY


1. Summary of the Recommendation

The American Bar Association urges that federal, state, territorial and tribal governments, when
considering and approving legislation, regulations and policies, preserve and enhance the
benefits that people derive from ecosystems, with due regard for economic, human and social
impacts; and urges the United States Government to engage in active discussions and to
negotiate and ratify treaties or other agreements with the Canadian and Mexican governments to
address cross-border ecosystem services issues in a coordinated and collaborative manner.

2. Summary of the Issue Which the Recommendation Addresses:

Ecosystems provide essential public services including life-support functions, production of
goods, and cultural and aesthetic benefits. Government actions can enhance, preserve or
diminish these services. The Recommendation addresses the issue of whether and how
governments should examine the effects of their actions on the services that ecosystems provide.

3. Explanation of How the Proposed Policy Position Will Address the Issue:

The proposed policy position urges governments to consider comprehensive and integrated
strategies to preserve and enhance the services that entire ecosystems provide rather than to
concentrate narrowly on particular pollutants or species. Consistent with the policy goal of
achieving sustainable development that the American Bar Association adopted in 2003, the
present policy position urges governments to pursue their goals in a way that preserves and
enhances ecosystem services with due regard for economic, human and social impacts. Because
ecosystems cross political boundaries, the policy position urges the governments of the United
States, Canada and Mexico to address cross-border ecosystems issues in a coordinated and
collaborative manner.

4. Summary of Any Minority Views or Opposition Which Have Been Identified:

At this time, we have not received opposition or minority comments.




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