Andrew Hursh

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At the passage of the Wilderness Act in 1964, its proponents were largely wrapped up in concerns about development encroaching on wildlands, the extensive creep of new roads, and the impact of intensive and extractive land management.[1] Today, conservationists and environmentalists see in the foreground of their challenges another issue that went unaddressed at the passage of the Wilderness Act: climate change.[2] Howard Zahniser, the primary author of the Wilderness Act, died mere months before he could have witnessed President Johnson sign the bill into law.[3] And it was only the following year that Johnson had his science advisory committee evaluate other ecological issues with a report that may contain the earliest recognition in the US government of the greenhouse effect and the atmospheric impact of fossil fuels.[4] The way we grapple with our effects on the natural world has shifted monumentally in the half-century since 1964.[5] In debates on the ramifications of climate change, the voices of the architects of the Wilderness Act are thus lamentably absent.[6]

            The Wilderness Act has been something of a neglected tool in 21^st century battles over the use of public lands.[7] There are always local fights over the designation of new, usually small Wilderness areas in fragile and recreationally popular zones of typically Forest Service land.[8] But when environmental public interest groups turn to our legal system to affect conservation efforts by our public land management agencies, they most often turn to procedural mechanisms such as NEPA or to laws like the Endangered Species Act (ESA), which provide specific legal mandates that can constrain a wide variety of agency activities.[9] Wilderness litigation, by contrast, is necessarily limited to skirmishes over agency restraint within discrete management parcels; this confers Wilderness a diminished stature in contemporary battles over environmental preservation.[10] Perhaps, however, a properly interpreted Wilderness Act could serve as a vital legal backstop in combating land management decisions that injure nature by exacerbating climate change.

This Note argues for revitalizing the Wilderness Act’s principled vision of decidedly un-managed and un-affected nature—strict non-interventionism. The need for such a perspective on the Wilderness Act is growing today and in the fight to mitigate climate change. Additionally, the same strictures of standing doctrine that have stymied climate change litigation may also color courts’ interpretation of the Wilderness Act’s rigid mandate and limit the redress available for the public’s interest in wild nature. If Wilderness advocates argue for renewing a holistic, wildness-first application of the Act, it could subsequently be an important legal tool in getting the courts to consider climate change injuries. The well-understood anthropogenic impacts of greenhouse gas pollution are indeed antithetical to what the Wilderness Act requires on certain federal lands.

Part I describes the goals of the NWPS and assesses its uniquely outcome-oriented mandate for the preservation of wilderness character. This Part addresses the difference between reading the Act to infer multiple purposes that can compete with leaving nature alone and a single driving purpose to perpetuate wild, untrammeled landscapes. It also connects statutory Wilderness with contemporary “rights-of-nature” movements, which have grown largely in response to the limits of environmental standing in federal courts.[11]

Part II addresses how a half-century of legal change since the creation of the NWPS has rendered redress for injury to its lands more narrow than intended. This Part notes how the tightening of standing requirements actually post-dates the adoption of the Wilderness Act.[12] An inability to foresee this limited public redress combined with an inability to foresee complications such as climate change led to the creation of a Wilderness system that has become a clunky vehicle for protecting untrammeled nature.[13] This Part will describe case law through which, in part due to modern standing rhetoric, the courts have misinterpreted the Wilderness Act in ways that undercut its intended requirements.

Part III concludes with a few thoughts on the scope and strategy of this Note’s ideas. Reinvigorating the principle behind the Wilderness Act will be no easy task, but better understanding the overlap in the rights-of-nature, climate change, and Wilderness movements could be an important step toward addressing all three issues. Rights-of-nature advocates should see Wilderness Act arguments as presenting important cracks in the federal standing barrier that can be chipped away at and deepened. Similarly, Wilderness advocates should recognize the ways that standing doctrine has contorted their legal posture, often weakening Wilderness principles even in cases that are nominal successes for Wilderness advocate plaintiffs. The challenges of climate change, finally, make it even more important to grapple with these issues because strong legal protection for un-impacted nature may be an effective mechanism to force meaningful climate mitigation efforts.

[1] John D. Leshy, Legal Wilderness: Its Past and Some Speculations on Its Future, 44 Envtl. L. 549, 554–57 (2014).

[2] See, e.g., Climate Change, United Nations Environment Programme, https://www.unenvironment.org/explore-topics/climate-change (last visited Nov. 11, 2019) (calling climate change “the defining issue of our time”).

[3] Howard Zahniser, wilderness.net, https://wilderness.net/learn-about-wilderness/howard-zahniser.php (last visited Nov. 11, 2019).

[4] The White House, Restoring the Quality of Our Environment: Report of the Environmental Pollution Panel, President’s Science Advisory Committee (Nov. 1965) (“Carbon dioxide is being added to the earth’s atmosphere by the burning of coal, oil, and natural gas at the rate of 6 billion tons a year. By the year 2000 there will be about 25% more CO₂ in our atmosphere than at present. This will modify the heat balance of the atmosphere to such an extent that marked changes in climate, not controllable through local or even national efforts, could occur.”).

[5] Sean M. Kammer, No-Analogue Future: Challenges for the Laws of Nature in a World Without Precedent, 42 Vt. L. Rev. 227, 254–258 (2017).

[6] Sandra Zellmer, Wilderness, Water, and Climate Change, 42 Envtl. L. 313, 320–21 (2012).

[7] Peter A. Appel, Wilderness and the Courts, 29 Stan. Envtl. L.J. 62, 64–65 (2010).

[8] See, e.g., the many small parcels of new Wilderness or boundary modifications in the 2019 federal lands package passed by Congress. Benjamin Fearnow, Trump Signs Biggest Wilderness Protection Bill in Decade, Designates 375,000 New Acres of Protected Land, Newsweek (Mar. 13, 2019), https://www.newsweek.com/wilderness-protection-bill-donald-trump-sign-environment-largest-death-valley-1361412.

[9] See, e.g., The Endangered Species Act, Center for Biological Diversity, https://www.biologicaldiversity.org/campaigns/esa/index.html (last visited Nov. 11, 2019) (describing the ESA’s “teeth” and use as the “number-one tool” in protecting biodiversity and the natural environments that wildlife depends on).

[10] Michael C. Blumm & Lorena M. Wisehart, The Underappreciated Role of the National Environmental Policy Act in Wilderness Designation and Management, 44 Envtl. L. 323, 348 (2014).

[11] Hope M. Babcock, A Brook with Legal Rights: The Rights of Nature in Court, 43 Ecology L. Q. 1, 5 (2016).

[12] See Stern, supra note 9, at 30–60 (describing the origins and development of standing jurisprudence).

[13] John D. Leshy, Legal Wilderness: Its Past and Some Speculations on its Future, 44 Envtl. L. 549, 610–616 (2014).