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Abstract

Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes. This Article explores whether, how, and to what extent these two goals can be reconciled. It employs a single example-a proposal for a new federal statute-to examine whether and how the tension can be addressed in the design of that particular statute. The statutory proposal that is the focus of this inquiry was developed in response to the ongoing loss of public natural resources and their associated services and values. This proposal for a new statute, called the National Environmental Legacy Act ("Legacy Act" or "NELA") was crafted primarily from a legal perspective. The central shortcomings it is designed to remedy are the lack of meaningful longterm conservation goals for public natural resources and the lack of associated enforceable constraints on our depletion and degradation of these resources. Its core objective is therefore to complement existing laws with a mandate that is enforceable and achieves clear conservation objectives.

The purpose of this Article is to evaluate the extent to which the design of this proposed statute is or can be made consistent with the insights of ecology. In keeping with the opportunity presented by this symposium, the Article examines how the ecological concept of resilience can help us to resolve this central tension in environmental law and policy. It identifies the points of tension between the proposed statute and the lessons ecologists offer about natural resource use and management and then explores how the concept of resilience may help to address this tension.

In Part II, the Article summarizes some critiques from a legal perspective of the existing laws that seek to protect our public natural resources. Part III describes the proposal for a National Environmental Legacy Act, an idea that emerged in response to this formulation of the problem. Part IV introduces resilience and related ecological concepts and elaborates on the tension between natural resource laws and the insights these concepts suggest. Part V evaluates the extent to which the proposed design of the Legacy Act is consistent with the insights from ecology and the extent to which it stands in tension with them. Having identified points of tension, it explores how the concept of resilience in particular may provide a useful tool to address this central tension and improve the proposed statutory design.

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