This article explores the Clinch Coalition decision to understand why the court would perpetuate a process that systematically rejects the relevance and value of ecosystem processes in the information gathering exercise entailed in these environmental regulations. The discussion begins with an introduction to ecosystem services as a study of human dependency on the services provided by functioning ecosystems. In the second section, the article turns to the Clinch Coalition decision to outline the arguments relied upon by the court to legitimize the Forest Service’s decision to avoid an ecosystem services analysis. The article then presents the Clinch Coalition decision as an illustration of a fundamental misunderstanding of ecosystem services and their relevance and value in environmental regulation. This article suggests that, by characterizing ecosystem services valuation as merely an alternative economic analysis or accounting method, the court highlighted an important informational goal for the next generation of environmental law: if environmental regulation is intended to facilitate a more efficient management of resources by correcting for resource market inefficiencies resulting from incomplete information, regulatory intervention should employ investigatory methodologies that result in the production of a more informed resource management decision. This article first questions whether ecosystem services valuation is indeed an alternative methodology. This section describes ecosystem services analysis as a means of economic and environmental valuation that is more inclusive than a commodity-based analysis: an analysis of ecosystem services is a more relevant and complete understanding of economics and environmental decision-making, not alternative methodology. Therefore, by rejecting the call for an ecosystem services analysis, the court allowed the agency to ignore relevant information about ecosystem impacts: ecosystem services analysis demands a more inclusive estimation of the opportunity cost of using and losing the ecosystems that produce timber, fish, and other goods and services, as well as the benefits of maintaining the flow of the goods and services that ecosystems produce. Second, this article concerns how to construct the notion of “information” to improve the information gathering exercise that is found in “action-forcing” statutes such as NEPA. Ecosystem services research supplies information on both economic values and ecosystem processes. Excluding an accounting of “ecosystem services” can produce decisions that do not accurately or efficiently reflect the interdependency between ecological and economic wealth. Understanding natural resources in terms of the value of ecosystem services that they produce helps to contextualize the relationships between public needs, private wealth, and the cost of ecosystem loss. Such information falls squarely into the informational mandate of our resource management goals, but more importantly, such information is currently excluded from most environmental and economic valuations.
Hirokawa, Keith H. and Porter, Elizabeth J.
"Aligning Regulation with the Informational Need: Ecosystem Services and the Next Generation of Environmental Law,"
Akron Law Review: Vol. 46
, Article 6.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol46/iss4/6