The greener side of the legal system

by Ari van Schilfgaarde

Last week I got derailed by $3 billion, but I want to get back to the idea of collaboration and incentives to act productively.

If we as a community are better off because of your actions, you’ve acted productively. Collaboration as a means of productivity happens in a specific “box” of criteria which leave everybody feeling better off and with the same or better result as if a dictator had demanded a set of policies.

So, when natural resources are protected, or when a process is more efficient, or when you have access to information that you need to make you happier, these are all socially productive actions. For the sake of this argument, natural resource protection will form the basis of productive action, but it is easy to extrapolate to other situations.

The problem is that collaboration doesn’t work quite so well when the rules are fuzzy or when the parties who have disagreements aren’t able to talk. Take for example the Black Canyon of the Gunnison River in my home state of Colorado.

The Gunnison River is one of the steepest and most rugged gorges in the world. As well as being part of a  unique ecosystem providing fishing and world-class boating, the river carries a lot of water by Western standards. By the time it flows into the Colorado at Grand Junction, it’s about the same size as the major artery of the West. All this water can go and “fund” development along the Front Range; it can feed many acres of forage for cattle and irrigate the San Luis Valley. But, in doing so, it virtually guarantees that the trout fishery will be floating toward extinction, and that many of the flood flows, the very things that carved the gorge to begin with, will be sent to Denver.

The State of Colorado and the National Park Service collaborated and came up with a plan that allowed for only a minimum flow through the Black Canyon, which is nothing to be sneered at, but they also agreed that it would be appropriate to cut off all the floods and send them through the concrete tunnel to grow the lawns of Denver.

The two concerned parties agreed in cordial meetings to cut off the hydrograph although the canyon has the right by Western water law to more. So, collaboration between two colluding parties left the environment worse off, and the public about to lose a major natural scenic beauty and a unique ecosystem.

Environmentalists sued. Claiming that—convincingly, it turned out—protection of an ecosystem means leaving natural processes intact, they managed to turn a cordial, banal agreement contentious. Is this a violation of the previous principle of mutual collaboration leading to beneficial examples? I think it is clear that in decisions such as this one, collaboration can be better described as collusion.

The lawsuit, although acrimonious, allowed the parties the process and the time to have a conversation in public with an impartial arbiter. In this case the “box” of regulations allowed for the full airing of grievances and a science-based decision to come to the fore.

This gets back to the same argument that I’ve been promoting all along. Getting to a solution to a problem requires information and process. I would argue that the lawsuit against the National Park Service was in fact a collaborative process, but the framework in which it had to work was the framework of the courts rather than the rotary conference room.

So, although the court settled the argument, and although it took attorneys, the fact is that a unique ecosystem in Colorado is protected and remains so at the request of the community. This is a distinctly democratic process, and because it takes place in a public context, and information is distributed to all the interested players, it is valid to applaud the collaborative process that led to the protection of a unique national resource.

While court decisions are often a measure of last resort, we often forget that they allow us to define which values are essential, and which ones society will protect. For that reason it is often useful to turn to this third leg of government when other resources are ineffective. That’s what it’s there for.


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