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Camacho on Assisted Migration & Climate Change

By Lawrence Solum

Alejandro E. Camacho (University of California, Irvine School of Law and Notre Dame Law School) has posted Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change (Yale Journal on Regulation, Vol. 27, p. 171, 2010) on SSRN. Here is the abstract:

To avoid extinctions and other harms to ecological health from escalating climatic change, scientists, resource managers, and activists are considering and even engaging in ?assisted migration??the intentional movement of an organism to an area in which its species has never existed. This Article explores the profound implications of climate change for American natural resource management through the lens of this controversial adaptation strategy. It details arguments regarding the scientific viability and legality of assisted migration under the thicket of laws that govern natural resources in the United States. The Article asserts, however, that the fundamental tensions raised by this strategy are ethical: to protect endangered species or conserve native biota; to manage ecological systems actively or leave nature wild and uncontrolled; and to preserve resources or manage them to promote their fitness under future conditions.

The Article explains why contemporary natural resource law?s fidelity to historic baselines, protecting preexisting biota, and shielding nature from human activity is increasingly untenable, particularly in light of climate change. Active, anticipatory strategies such as assisted migration may not only be permissible but even necessary to avert substantial irreversible harm to ecological systems. Scientists and resource managers should focus on developing scientific data to aid analyses of the risks and benefits of assisted migration in particular circumstances. To help develop such data while minimizing ecological harm, the Article proposes provisionally limiting experimental translocations to situations where translocation is technically and economically feasible, and where the species is endangered, ecologically valuable, and compatible with the proposed site.

More broadly, assisted migration illustrates how the institutions and goals of natural resource law must be changed to better reflect a dynamic, integrated world. Climate change forces a radical reconsideration of the aims, foci, and standards of natural resource management. Accordingly, the crucial project of natural resource law must be improving governance by cultivating agency accountability and learning to better manage uncertainty, promoting opportunities for inter-jurisdictional collaboration, and fostering public information and deliberation over the tradeoffs of strategies like assisted migration and the resource values that matter.

Full post as published by Legal Theory Blog on September 17, 2010 (boomark / email).