Michael Livermore 0:11
Welcome to the Free Range Podcast. I’m your host Mike Livermore. This episode is sponsored by the Program on Law, Communities, and the Environment at the University of Virginia School of Law. With me today is Holly Doremus, a professor of environmental law at Berkeley and the co-director of the Berkeley Institute for Parks, People, and Diversity. Holly’s work is highly interdisciplinary. She has a PhD in plant physiology from Cornell University, in addition to her JD, and she often works on discipline spanning teams that include researchers from the Natural and Social Sciences. Hi, Holly, thanks so much for joining me today.
Holly Doremus 0:45
Hi, Mike. Thanks for having me on.
Michael Livermore 0:47
So one theme that we return to fairly frequently on this podcast is the value of interdisciplinary work for environmental and sustainability issues. And that’s obviously something that you focused on. Your original graduate work actually was in the life sciences before you switched to law school. So I thought maybe we could start with a little bit about how you made that transition from the sciences to law, and how you see the transdisciplinary perspective that you have as shaping how you approach environmental law and policy as a scholar.
Holly Doremus 1:21
Sure, sure. So how I made the transition, actually one of the wonderful things about law, and it’s still true, although possibly not as much as when I was getting into it. But one of the wonderful things is that you can do it later on, you don’t have to decide when you’re 12 or 16 or 20, that you’re going to be a lawyer. And in fact, law schools, in my experience, tend to like people who have done other things who have more have a background, that doesn’t indicate that they always wanted to be a lawyer. So I was able to take advantage of that. And when I was finishing my PhD, I also did a year and a half as a postdoc in plant physiology, which is what I had been studying. But by the time I finished my PhD, it was clear to me that the science work I was doing was too removed from the problems that I thought were most interesting and important in the world. And I wanted to do something that I could see as mattering a little bit more. So that was a reason that that was the main reason I wanted to go to law school. The other thing that was going on at the time was that when I got my PhD, I was doing plant biochemistry. And at that time, molecular biology was really taking over. And it would have been, I think, very, very hard for me to get an academic job as a scientist.
Michael Livermore 2:59
Interesting, interesting. So but obviously, you have that that, you know, very substantial scientific background, how do you feel like that’s informed your – if at all? You know, maybe you left it behind, but I suspect not – How do you feel that that’s informed your your work as a scholar and someone engaged in law and policy?
Holly Doremus 3:18
Yeah, I think two things. I mean, one, actually, as a practical matter, it’s made it much easier for me as a scholar to reach out to people in other fields. I think when when I got started, and I and I actually, I should say, it really helped me get my job. When I was first hired at UC Davis. They were for reasons that I still don’t quite understand. But they were convinced that they needed somebody with a natural science background to add to their environmental program. And I think maybe part of what was going on was that the ecology, biology, conservation biology work at Davis was really strong, and they wanted somebody who could talk to those folks. And I think in the context of talking to people in especially in the natural sciences, it’s much easier to just go introduce yourself and start talking, if you can say, oh, yeah, I’ve got a PhD from an R1 University, whose name we all know. It just gets you a little bit more credibility, I think and that was very helpful. But it has from the beginning, from the time I was in law school and started writing law review papers and thinking about an academic career in law, my background in science has been really important to the problems I identify as the ones I want to work on and to the way that I see those problems. Right. So I think maybe I’m a little more sensitive than people without that background to the communication issues, and to the hidden questions that may lie underneath this assumption that science will solve this. And I think we’ve gotten better over the Gosh, I’ve been in the academy for almost 30 years now. And we’ve gotten much better in general at seeing that. Science, in fact, is very uncertain, and it can hide a lot of value questions. But I think there still can be a tendency for people who are not scientifically trained to think that scientific answers are clear, and that science should dictate the policy outcomes. And there’s still a rather to me disturbing tendency on the science side to see things that way. And that’s part of what comes in and interdisciplinary work is that sharing perspectives can help people of all disciplines better understand what parts of a question they can answer and what questions they may not have thought to ask, you know, that, that working with other people can help them ask an answer.
Michael Livermore 6:44
Yeah, that’s a really, it’s a really, really nice way of saying that it’s just such a consistent issue in our public debates in our law, this, this tendency to scientize certain types of policy questions or, you know, kind of, you know, have a banner that says, Just do what the science says, when, of course, science doesn’t provide us with all of the answers to every kind of question that we might like, and it is, it is such an important skill to be able to separate out those things. So, you know, of course, you do a lot of work in the area of biodiversity and species and conservation. And, and this is a huge, you know, just area where ethics and values and morality and science and you know, in lots of different sciences, conservation, biology, and ecology, and the like all are kind of entangled together. And on some of the biggest issues, like facing humanity and the planet today, so, so, so that’s a really ripe area for us to talk about today. So maybe just to as an entree into that, you know, the Endangered Species Act has been around, obviously, for for a long time now, 50 plus years. And, you know, we live in a different context than when the ESA was originally, you know, kind of put on paper. And in the, the big thing that is relevant is climate change and the impending extinction crisis, right, the ESA was is really oriented towards this kind of species by species approach. And, and, you know, the tools have been around for a long time. So I guess, you know, just to get started with this is, how do you do you think that kind of broadly, we need big changes in our approach? You know, what we’ve been doing for a while has been was been good. But do you think that it is, you know, moving forward, the generally speaking the right framework? Or do you do you see us at a juncture where we really need to start thinking big about, you know, what the goals of conservation are and how we ought to be achieving them and maybe making some big policy changes?
Holly Doremus 8:56
Yeah, I definitely think we’re at a place where we need not necessarily to change our goals, but to evaluate them to look closely at them. And you know, the ESA has now been lost for almost exactly 50 years. And everybody’s aware that climate change makes the conservation problem much more difficult. But the conversations that I’ve been hearing and that I’ve been asked to be part of, are, they tend to be really oriented around. What should Congress do? What should the Fish and Wildlife Service and National Marine Fisheries Service, the agencies that implement the ESA do? And I think those questions are too small. We may need legislative changes. We certainly still need some right regulatory corrections of what happened in the Trump era, there’s been some corrections, there need to be more. But I really think we need to step back and ask, what is it we’re trying to achieve in order to evaluate what we ought to do to get there. And I keep thinking about, there’s a phrase that has stuck in my mind, since the 1980s, when I was watching way too much late night cable TV. And there used to be all these infomercials that were on. And I remember one of them that was supposed to be inspiring people to I think, make a lot of money in flipping real estate or something like that. But the the catchphrase was, if you aim at nothing, you will surely hit it. And that strikes me as just exactly true. If you don’t know what you’re trying to achieve, there’s no way you will achieve it. Right, you’ll you’ll get what you aimed at which was nothing. And that’s kind of where we’ve been with the Endangered Species Act. It’s been unclear from the beginning, what exactly what entities were protectable under the law, what entities we should be protecting, why we should be protecting them exactly how much we should be how much effort and cost we should be willing to put into protecting them. And at the time in 1973. I think everybody assumed that those those questions either weren’t important, or the answers were obvious and non controversial. Actually, in 1973, ecologists knew that species were hard to define. But the Act says, Okay, let’s subspecies in the context of vertebrates, which are the things we apparently care the most about. You can sometimes list distinct population segments. So that seemed to take some pressure off of exactly what is it we’re trying to protect. And you mentioned that there were a couple of federal laws that preceded the Endangered Species Act, there were 1966 and 1969 versions. And they were really quite limited in their impact. They were just about what happened on federal lands. And they were pretty focused on direct impacts on species, things like hunting and fishing, you know, over exploitation. And although the 1973 law goes a lot farther, I think a lot of people in the course of the legislative debates, didn’t recognize that or assumed that wasn’t the case. So, you know, it seems like the species problem was kind of it was ambiguous, but didn’t really matter, we figure it out. And people were not expecting not anticipating the level of controversy that developed and that developed pretty quickly. But climate change makes it even much worse. And so it becomes much more important to decide, what is it we’re trying to protect? Where do we want it to be? How, what sort of risk tolerance do we have? What tools are we going to use for conservation? All of those questions become much more difficult and more obviously important in the climate challenged world where conservative, you know, it’s, it’s really hard to know what proportion of species are at risk. But a fairly conservative estimate these days is about 20%. Even if we achieve the Paris goals for keeping temperatures, to not too much change, which it seems quite unlikely we’re going to do. So. We’ve got as much as you know, 20, 25, 30, even up to 50% of some groups may be at serious risk of extinction because of climate change. And there is just no way ESA was not framed to protect that proportion of species.
Michael Livermore 15:08
Yeah, no, it’s really, you know, when I teach the Endangered Species Act, I kind of leave this for the end of the course of the of the section because, you know, you know, and I just kind of go through the different parts of the act and how it works and so on. And then at the end, it’s kind of like, and so, you know, there are a couple 1000 species roughly, that are protected under the act. And if we take the science seriously, with respect to climate change, you know, we’re talking about or many orders of magnitude, larger number of species that are at risk. It’s just it’s kind of like a staggering, a staggering thing to contemplate. And, you know, what would it mean to list all those species? And what would it mean to actually apply the the requirements as we currently understand them of the Act to all of those species? And is that just for folks who aren’t as maybe familiar with the mechanics? What do you envision would happen? If we were to do that? Like, is it just the system just breaks? And we would, as a consequence, just have to come up with something new? Or how do you how do you see that actually, kind of playing out over the next handful of, you know, basically a handful of decades?
Holly Doremus 16:15
Yeah, what I envision is that it becomes politically untenable. And we’ve already seen some of that, as you know, but your listeners may not the ESA has a safety valve, but it’s very hard to invoke. So the the ESA, by its terms, protects every endangered or threatened species, and actions that would be likely to jeopardize the continued existence of a listed species are prohibited. If is, however possible, there’s this thing called the God Squad that can say it’s okay to go ahead. Even though we believe that this is going to jeopardize a listed species. The God Squad is a group compared composed of cabinet level officials. And it has to determine in order to grant an exemption, it has to determine by a supermajority vote, that the activity that would cause Jeopardy an unacceptable risk to a listed species is important. It’s of regional or national importance. It can’t be accomplished without Jeopardy. And everything’s being done to reduce its impact as far as possible. Those are really high barriers, as you can imagine, and it hasn’t even been invoked. It’s so hard to invoke it it that hasn’t even happened since the 1990s. It’s only once granted an exemption that was for I think, 11 logging sales, timber sales on national forests in the Pacific Northwest, right at the transition between Bush one and Clinton when the spotted owl wars were most acute, and the God Squad voted that the sales could go ahead, even though they would likely jeopardize the spotted owl. And shortly after that, Clinton was elected and his administration said, we don’t think these sales are important, we’re not going to do them. So that pathway, it’s incredibly hard to invoke it has very high threshold for granting an exemption. It’s nowhere near enough to let the pressure off, if many, many 1000s of species need to be protected. Right. And in fact, it’s never been the only way out of the ESA protection difficulties. The first time that when the god squad was created, it was written into law after the tellico dam controversy, which again, in case your listeners aren’t familiar with that tellico dam was a Tennessee Valley Authority project. The TVA was building a whole bunch of hydropower dams in the southeast as part of its mission to electrify In the rural region, and it just kept building these dams, even even when electricity was pretty available. The tellico dam was opposed by a coalition of environmental groups who were primarily interested in, in protecting one of the last free flowing rivers in the area. And they went out, send some biologists out there and surveyed these, the river areas that would be dammed up and drown, turned into a reservoir. And they found a new fish, a fish that had not been known there. And got it listed on the Endangered Species Act. It’s called the snail darter. And it’s a small but colorful fish. I’ve never seen one in real life, but the pictures of them make them look quite attractive. And so then these environmental advocates they got the fish listed, and then they insisted that tellico dam that the construction be stopped, right, and the US Supreme Court, and its first look at the Endangered Species Act, in an opinion called Tennessee Valley Authority vs. Hill, held that, in fact, the dam could not be finished. Even though it was I think, 90% Complete, they really just had to close it at that point. And the Supreme Court said that would violate the Endangered Species Act, because there was this listed fish that couldn’t survive in reservoir conditions. The administration took it to the god squad. And the god squad said, this reservoir is not important. It’s not important enough to give an exemption for and in fact, they did an economic analysis. And they decided the economic benefits of completing the dam, not completely building it, but of just doing this last marginal piece were not justified by the economic benefits, which essentially were illusory, there was no benefit to constructing to finishing this stamp. So the God Squad said, No, we’re not granting an exemption, then the advocate of tellico dam took it to Congress, and they got an exemption there. So there’s, that’s always been the alternative way to go. And I’m convinced that if the number of ESA controversies conflict goes up by orders of magnitude, which it’s likely to do as climate threatened species, more and more reach the list, congressional intervention is going to become more and more common.
Michael Livermore 22:57
Yeah, that’s really interesting, because then, you know, you’re moving out of a system that, you know, for all of its limitations, the administrative processes, a certain amount of kind of rationality, and there are standards, and it’s not, you know, kind of merely about the play of political power. And then moving that into Congress, which, you know, the tellico dam story is a good example of where, you know, a pretty thorough process says, this is stupid, we shouldn’t be doing this. There’s no economic benefit, but then Congress kind of decides to go ahead anyway. So so yeah. So you’re just kind of returning to a, you know, the kind of point you made a few minutes ago, that there that the when the ESA or the kind of contemporary yesterday was adopted? The we were able to fudge a lot of the hard questions, you know exactly what we’re trying to protect a little bit more concreteness, about the goals. Of course, there are goals in the ESA. But they’re very abstract. Any kind of any discussion of risk tolerance, right? Because I mean, the way the ESA is typically interpreted as a almost a zero risk framework, so that that’s not in practice, how anything can work. But it’s hard not to fudge these questions, because if you don’t fudge them, you have to address them. And you have to build some kind of political consensus. And it it does seem, I don’t know if it certainly with environmental issues, and maybe with the Endangered Species Act, in particular, conservation in particular, it’s just strikes me as very, very difficult to achieve any kind of consensus about these hard questions about, you know, what do we actually care about what we should be protecting? So, so yeah, what are your thoughts on that? If it’s true that climate change is really going to force us, which I think is, you know, strikes me as absolutely right to think in serious ways about updating our conservation approach. How do we how do we even start to have a conversation that would allow us to build some kind of consensus around these Pretty contested pretty difficult questions?
Holly Doremus 25:03
Yeah, that’s that’s the $64,000 $64 million. Question. And I don’t know that I have a good answer. But I do have one that gives me some hope. Right now, I would not send those questions to Congress, which I think is dysfunctional. And honestly, it’s, it’s more and more performative. Right. And I think we need a serious conversation about these questions, not A, not a set of competing performances, I wouldn’t send it to the administrative agencies either, for a couple of reasons. One, we’ve had an environmental law for decades now, this problem of whipsawing, with different administrations. And that means that administrative based changes, don’t have any staying power, which may be good or bad, depending what you think of the administration. But it’s almost like in in many of these circumstances, I see a kind of assumption that whatever your opponent’s did, must have been wrong. And so they, the agencies spend all their time undoing what was done by the last administration, and then and then trying as fast as they can to get something in place. So that’s not the way to go. In addition, I think, the US Supreme Court with its heightened hostility to creative administrative action, which we can see, obviously, in the West Virginia versus EPA, Clean Air Act, decision makes it even less likely that an administrative an administrative approach will help us. So I think in the end, we’re going to need to go to Congress. But that’s absolutely not the way to start. And maybe this is self serving. But I actually think academia is the place we need to start. Because academics can talk about problems in different ways than politicians do. You know, academics, a lot of academics have been attacked, for talking about climate change in various ways. And that that certainly is a risk to any academic conversation these days. But I have tenure, and most of my academic friends have tenure as well. And that’s important actually. That means that even if people have checked to what you say, as they might well, your jobs not at risk, not at direct risk, because of of what you’re saying in the in the public sphere. The other thing about academia that I think’s really desirable here, is that you, you mentioned, the need for interdisciplinary work, cross disciplinary, multidisciplinary, whatever word you want to use in the context of environmental problems. I think that’s absolutely right. And I think that’s really needed here. And academia. In the time that I’ve been a professor academia has gotten much more friendly to that kind of multidisciplinary work. And so there are a lot of academics that know other people, right, there are a lot of connections that cross those kinds of boundaries. And I think that’s essential. crossing those boundaries is really needed. In the context of this discussion. I want to have a discussion about what are our conservation goals? And where are we as conservation, pro conservation folks? I’m clearly in that camp. Where are we willing to give? Where can we give without sacrificing the fundamental, the fundamental goals? That’s a conversation and I think, you know, going back to 1973. That conversation was not transdisciplinary I think there was some input from biologists into the framing of the of the law. There wasn’t a conversation, a broader conversation about, Well, exactly why. And what does that mean? The ESA, as you mentioned at the beginning, Mike, and it, it states, these goals at a really high level of general generality and abstraction that says that our goal is to conserve endangered and threatened species and the ecosystems upon which they depend, because careless action has led to extinction and threats of extinction. And the species that are at risk are of aesthetic, ecological, educational, historical, recreational, and scientific value to the nation and its people. So there was this forward looking idea. And there was, at least, as I look at that list, there was a non economic focus, right, that’s the one thing that was conspicuously a value of various species that’s left out of the of the of the list. But there was really no talk about what do we mean by aesthetic value? And what, what? Where would we draw the line between entities in order to preserve aesthetic value? And that is not a question that natural scientists can answer. They can tell us a lot about the aesthetics. But they can’t tell us where to draw the line. And same thing for historic and educational, all these other values. So I think we would need to we need to involve different kinds of natural scientists, taxonomists, ecologists, conservation biologists, educators, philosophers, people who think about different kinds of value, people who look at recreation, all of those sorts of things. And we need to think about are there values that are missing from that list that we really think ought to be there. And I think there is one conspicuously that we would include today, if we were framing this law. And that’s cultural value, which perhaps you could say is subsumed in historical, and aesthetic and so forth. But I think we would want to call out the value to different cultural groups, such as Native American tribes, and make sure that that gets considered. So I think, where I would like to see us start at this point is for academics, one of the other cool things about academia is that it’s self organizing, right? And pluralistic in the sense that a lot of different people can be working on the same problem from a lot of different angles. And I think people should be putting together, you know, groups of cross disciplinary, multidisciplinary, folks who are good at talking across these boundaries, and are prepared to think in ways that may be uncomfortable. And seeing what emerges, is there a consensus around what we ought to protect? And where and through what tools and to what extent, or are there competing approaches? Right? And then that kind of conversation can perhaps in my optimistic vision of the world, if that kind of conversation comes to something approaching consensus, then that can be taken to the political realm. And I think there’s an example what I think about as the example is the Joint Ocean Commission efforts. Are you familiar with that?
Michael Livermore 34:42
No, it’s not something I follow that closely.
Holly Doremus 34:44
So back in the early 2000s, the Pew Charitable Trusts, which had done a lot of work on ocean conservation problems and was very interested in them, they put together a multidisciplinary, heavily academic, although it also involved some politicians group to think about the future of us ocean policy, which they saw correctly, in my view as lagging and as insufficiently articulated. And they came out that group came out with a report that got a ton of attention. And then the government convened a Blue Ribbon Commission, and the two of those Commission’s sort of worked together to think about what should be the future of ocean law in the, in the US. And that, I mean, I, this is not entirely an optimistic story, although it’s pretty optimistic one that led to the Obama administration’s putting together these regional ocean management councils. And it led pretty directly, I think, to the acceptance in the policy realm of the idea that ocean management had to be done across some institutional boundaries and across activity boundaries in a weird way that it hadn’t been. And so I think we need some kind of that, that we need that kind of a process, starting in academia, proceeding, I think, to academic, political, cross boundary institutions, then hopefully proceeding to agency efforts, executive branch efforts, and maybe to congressional work.
Michael Livermore 36:54
Yeah, it’s a really interesting vision, it’s a really interesting kind of idea about how these kinds of processes can unfold. Just to just throw it a few just thoughts that arise. So obviously, when we’re thinking about like something as big as the Endangered Species Act and conservation writ large, as you know, it’s a it’s it’s a highly values laden set of issues, right. So, so it’s so there’s some contexts where we can turn over a turnover necessarily, but that are highly technical, where, where technical expertise is going to have a lot, a lot to contribute. And there might even be just kind of technically right or wrong answers. Whereas with something like conservation, there’s, there’s just irreducibly a ton of questions that are that are moral, that are values questions that are about balancing competing concerns, and the like. So I could certainly see how, you know, an academic conversation, a conversation amongst experts can lay out what the values choices are, clarify what the, you know, the scientific state of affairs are, and are at least our current knowledge about the scientific set of affairs. Again, kind of clarify what the values are that are implicated. And kind of get all that on the table to a certain extent that and that does seem like a great role for for academics and in the discourse. I think the tricky part is settling those questions or to come up with with any kind of resolution, there might be proposals and so on. But it seems that that’s the kind of thing that ultimately, we have to kick to a political process. Well, in any case, because the politicians will just just want to redo it anyway, whatever, you know, whatever settlement, the academics come to, Congress will just have its own members of Congress will have their own take so So is that how you see the process working out? It’s kind of clarifying the clarifying the stakes, clarifying the trade offs in the lake, and then ultimately, the politicians do their thing? Well, that still leaves us with the difficult problem of how we how we reached that compromise. Even, you know, with even an idealized Congress, could we reach anything like, if certainly not a consensus, that’s hard to imagine, but a compromise? And as you said, the Congress that we have now just doesn’t seem to be able to decide, or make compromises about anything. So So yeah, so I’m just curious about how you imagine addressing this problem of kind of settling at some level and arriving at some resolution about these really, really hard value questions.
Holly Doremus 39:45
Yeah. I’m not, I’m not positive we can do that at all. But I do think we need to try and it’s worth a try. And One way to think about it, perhaps, is that actually we seem to have and to have had since the 1970s, a strong political consensus in the US that conserving the biological world is something that’s worth doing. And the I actually haven’t seen any really recent surveys on this. And I’m a bit worried about it, because our politics have gotten so polarized and conservation, biological conservation has not historically been a single party. Issue, although the means of approaching it have been have been different. But but that may be changing. And we do need a way to get beyond polarization. And and part of my answer is that I’m going to kick that to the people who are trying to improve our political process, from the from the ground up. But I also do think we have a consensus that conservation is worth doing. We need that consensus to be we needed to be more specific about what that means, right, in order to have something that we can implement in a climate challenged world. And one of the things that I think this academic process that I that I’d like to see, kick off can can do is that it can help take the pulse of that political consensus a little bit better, we can understand more about what people value in the biological world, what informs their idea that we should do conservation in general, we don’t just have to say, Okay, we’re gonna make a list of all the values that we think species serve, and that will make everything protectable. We can talk to people, that’s something academics can do, you know, this is one of the reasons we need to engage social scientists is to understand how people in the political community see these issues. What do they see as important to protect and why? And also, if the conversation is broad enough, we can help clarify what the benefits are of conservation. Right. You know, what, what should people be seeing as the benefits, we can have I think a kind of back and forth about that that’s never happened. And this also brings up that the ways that we see conservation, may be changing. The certainly the ways that experts see it, are changing the way the problem, as as it’s described by conservation biologists and ecologists is, is changing the solutions that we see. But also there’s this completely different conversation about rights of nature that’s going on. And that actually is not something that was part of the 1973 discussion, at least not directly. It’s very utilitarianist, are we you know, we have a list of all the ways that species are valuable to the people of the nation. We didn’t concede and haven’t ever quite conceded that. Maybe the natural world, the nonhuman world has a right to exist, that we should steward that we have obligations, not to disturb too much. I think that’s sort of always been in the background of the ESA. But it’s not been specifically called out and as treating something recently that more younger, young people are now seeing if you ask them about conservation, they’re invoking things like the rights of nature to exist, and if so, that’s something that ought to be more clearly part of this, which is all I keep rambling on in this conversation. And but I think that does get to your question about how does this help us in the political context? Yes, in the end, these are political questions. And I think in the 1970s, we really glossed over that, and tried to put experts in charge in a way that would keep us out of the political realm. I think a lot of people, including me, have been are still reluctant to put things to too much in the political realm, because we see the politics is so dysfunctional, and is so favoring narrow, special interests, that we really worry about what happens, I don’t think given the stress that climate change is putting on the system. I don’t think we can avoid it anymore. And so the best we can do, I think those of us who really care about conservation, is to try to more clearly articulate our reasons for that our values, and to see what resonates with the public as a way to change the political calculus.
Michael Livermore 46:28
So we’ve we’ve been talking about the kind of the goals of conservation, right, which are the in some ways, this is the this is the big, big, big question. Right. But there are other big questions that that are also on the table that we would, presumably we wanted to think about, in you know, if we’re, if we’re thinking broadly about really trying to respond to the changing nature of the world, and how we’re going to do conservation. So. So for example, like the tools, right, we have a very specific set of tools that we use under the ESA, you know, governing, you know, what the federal government is, or is not allowed to do in the face of a listed species requirements that have to do with individual individuals, regular private actors out there. You know, there are lots of other programs that we have that receive, you know, different levels of funding that that didn’t, you know, promote some conservation. And so, so do you think there are, you know, even if, you know, we all agreed about very, very broadly what the goals were of conservation, there would still be lots and lots and lots of hard questions about how do we achieve those goals? So, what do you think are some of the interesting questions at that level that we ought to be thinking about? Again, as we’re, we’re responding to this to this new world that we find ourselves in?
Holly Doremus 47:57
Yeah, that’s a that’s a terrific question. And one to which you might hear a lot of different answers. I think, again, this is actually quite closely tied to what are our goals, which, in the end, what that comes down to is, what do we want the world to look like, in the future? What do we want to include that outside our direct control? Right. And it’s I think it’s really important that you mentioned that there are other laws and programs other than the Endangered Species Act that we ought to be putting into the service of our conservation goals. One question that’s come up under the ESA is, what do we do about species that are going to have to change where they’re living? Climate change is really scrambling habitats all across the world, and temperatures are changing precipitation patterns are changing. What other species do are changing, right? So if flowers are coming up early or blooming earlier than birds, and insects that use those plants, and those flowers have to respond in different ways, right. So there’s kind of this great scrambling that’s going on. One thing that people have been talking about for, I don’t know, 15-20 years or so, but that hasn’t been happening in the policy arena much is what’s called assisted migration. That’s where people deliberately move species from from one place to another, the idea being that the habitat conditions are becoming unsuitable where the species currently is. And there may be places where habitat is available or could be made available to them in the future. And one species that’s talked about in this, there are a lot of different species people talk about this way. But one is the pika, which is a mountain dwelling species that is quite sensitive to heat stress. So as places become warmer, that the temperature goes up sort of up the mountain, so that the pikas can move up the mountains they live on, to find temperatures, at least in some places to find temperatures and conditions that are suitable. And that actually isn’t a bad way to adapt. Because mountain tops are some of the places that are actually least affected by human development, among other things, but there’s a real problem when the puck gets to the top of the mountain.
Michael Livermore 51:18
Yeah, you run out a mountain at some point.
Holly Doremus 51:21
You do and you can’t fly. So then there’s a question, well, if it’s the top of the mountains, no longer suitable are no longer big enough suitable area. What do we do? Should people physically move these pikas to say, mountains further north, where they might be able to persist? And that is a technical question. Will it work? What confidence do we have that it will work? How do we make the new habitat suitable? And what do we do about the species that are already there that might interfere with but it’s also very much a values question. You know, is it, is it up to us? And this is a question that I think we’ve been really unwilling to tackle, because it’s so it’s so difficult to answer. To what extent should we be permanently the gardeners of the entire world? Yep. And that that’s what moving species across the map is, at least if we have to keep doing it. Another place where this is coming up today is Isle Royale, which is a national park. It’s an island. And there have been in my lifetime, moose and wolves on that island. But it’s a small island for both of those species. And the wolves have nearly disappeared, or had nearly disappeared. Until a few years ago, the National Park Service brought some new ones over. Yeah, yeah. But given the size of the habitat, it’s quite likely that if we want to have wolves on Isle Royale, we’ll have to keep importing them periodically. And again, that’s the question of how much should the world be humanity’s garden? And who gets to decide what that garden looks like? And it’s also it’s not just it’s a values question. But it’s also an economic question, because it’s really expensive to move critters around. And those sorts of questions are going to come up more and more. And the Fish and Wildlife Service has just issued a proposed rule that says that the Endangered Species Act gives them the authority to do assisted migration where necessary to save an endangered species. But the way they would do it is through use of the experimental species experimental populations provision, which has always been understood to allow releasing reintroducing species to their historic range. Right. And that’s how we have a gray wolf population in Yellowstone is that in the 1990s, we released some wolves there and they’ve been able to establish a population. But the Interior Department now says they can do that outside the historic range of the species. I don’t think it’s universally agreed that in fact they do have that authority. But even if they do, that still leaves the really tough questions of when should they do it? For what species and to where? And how should those decisions be taken. And those are the kinds of things that we’re more and more going to have to address. There’s also the question of how we protect habitat that’s not currently occupied by species that are listed. And that, as I’m sure, you know, led to the Supreme Court case, the warehouser case about the dusky Gopher Frog, where the Court said, well, the ESA actually does not allow you to protect what’s not habitat, which may mean what’s not currently occupiable by the species, which makes it tough to have habitat that species can move into. And to me, what that means is we’re going to have to work more beyond the boundaries of the Endangered Species Act, right, that to us, our land acquisition authorities, for example, or to use the lands that the government, federal state already owns, to allow for in some cases, perhaps facilitate the movement of species, one of the things that I think is going to be really difficult, and that I think land managers understandably resist, is that it for me, it’s important that in some cases, we don’t deliberately do the gardening that we allow what remains of nature, there’s no part of nature that we don’t have effects on these days in the on the earth. But those effects are more or less direct. I think it’s important that some large areas be protected, but not intensively managed. So that what remains of nature can find its own way, its own path to what is going to be the future. But But that’s really scary, right, that that means letting some things go.
Michael Livermore 57:35
Yep, that’s, that’s what they exactly what that means. Right? So you’re not gonna you’re not gonna manage it. You don’t, you know, get a say anymore. And what, what happens? So the final, you know, kind of quick set of questions, because none of these are easy or quick. But the final kind of set of issues that I wanted to just get your get your thoughts on, why have you is, again, thinking big picture about the Endangered Species Act, there’s been a huge amount of controversy about the kind of distributional fairness effects of the accurate that the ESA, you know, imposes a lot of obligations on private actors. And, you know, you know, if you find the, if a species that’s on your property gets listed, tough luck for you, right? That’s that’s real bad news. And, and, you know, just imposes very serious costs on some others get away, I don’t have any endangered species on my land, so I don’t have to worry about it. And so, and that’s a big source of tension. Tension between urban and rural folks is a tension between some folks who have to worry about this and others who get to enjoy the benefits of species being around. So are there any big changes that you would at least put on the table and then necessarily endorse fully but that you think are legitimate kind of ways of thinking about some of these distributional or fairness questions that, that we’ve kind of skirted up to this point?
Holly Doremus 59:01
Yeah. I do think that needs to be more on the table. And I I’ve my thinking about this has changed a bit. And it definitely changes as the ESA protects more and more things, and then that’s more and more difficult to do. You know, I used to think that land ownership while I do think land ownership comes with some obligations. And one of those obligations could be to provide for some minimal level of a natural world, right, either on your land or by joining together with others. I think at this point, you know, it’s true that the people in the past got away with really destroying a lot of nature. And we shouldn’t countenance that today, but we also should record dies, when the distribution of costs and benefits is really uneven. And when when people can’t help it, you know, which is theirs is kind of this lottery of nature that who’s got endangered species around them? And I think it does need to be we need to, one of the things we need to think about is exactly what are the obligations of the government, the public to pay for the conservation that it that it wants? And that I don’t? I don’t think there are easy answers. I don’t think we should always necessarily do that. But I definitely think that should be on the table. The other thing that I think this brings up, is it there. In the US historically, we’ve rejected government based long term planning everywhere except at the very local government level. And I think that needs to change because right now, if a limited amount of habitat destruction can happen, for a in the range of a particular species, what happens is the first person to ask to do that gets it. And that’s totally inequitable.
Michael Livermore 1:01:19
Yeah, it’s a race. You don’t want that. That’s the last thing you want. Right? Okay. Well, I mean, these are heady, heady issues. They’re difficult. They’re super contested. They are, they’re political. They’re scientific, but they’re also super interesting. So it’s been. It’s been a really, really fascinating conversation. Holly, thanks for all the work that you’ve done on these issues over the years. And yeah, it’s been a real pleasure to have you on the podcast.
Holly Doremus 1:01:44
It’s been a fun conversation. Thank you.
Michael Livermore 1:01:48
And listeners. If you enjoyed this episode, let us know you can give us a like a rating, subscribe to the podcast and follow us on social media. It’d be great to hear from you. Till next time,
Free Range Podcast 