Chapter 6. Collaboration: Required by the Constitution
[C]ooperation not only produces results on the ground; it also produces a unique satisfaction within its participants that they are then loath to let die….These feelings, these satisfactions, are fundamental to democracy as a human enterprise, and they are the core energy for any revitalization of “the Democracy.” [Kemmis 2001:227]
As appreciation has grown for the need to protect biodiversity and ecosystems at a landscape scale, scientists and environmentalists have called for a federal “Endangered Ecosystems Act” to supplement the Endangered Species Act (NRC 1995; Noss 1999). Even if political conditions would support it, however, such an act would have to work within considerable limits set by the U.S. Constitution, including restrictions on what the federal government can regulate and how federal property must be managed. In the Puget Sound region, the state of Washington would have a somewhat freer hand with a similar state law, but the state would still have to work within limits set by the U.S. and state constitutions. Washington could not, for example, control the 40% of the ecoregion that is federal property. Checks on government power in the U.S. and state constitutions ensure that any attempt at ecosystem management across the region must be collaborative, encompassing all levels of government and the public and private sectors. Collaborative ecosystem management requires extensive compromise and patience (one book on the subject is humorously but accurately titled Beyond the Hundredth Meeting [Cestoro 1999] playing off the title of Wallace Stegner’s famous book on the American West, Beyond the Hundredth Meridian [Stegner 1992]). This is particularly true in Washington, where the state’s constitution and laws disperse power widely, and deeply rooted political traditions limit the power of state government, deferring important decisions to local authorities.
Most major federal environmental laws were adopted in the 1960s and 1970s, after a period dating to the late 1930s when constitutional limits on federal regulatory powers were interpreted very broadly. Starting in the early 1990s, however, the U.S. Supreme Court began to reverse this approach. The Court did not directly address constitutional limits for environmental legislation, but two decisions that it issued regarding the Army Corps of Engineers’ jurisdiction under the Clean Water Act were consistent with a narrower view than had held since the act was passed (Rapanos v. United States; SWANCC v. Corps 2001). In other decisions that the Court issued, it set further limits on the ability of the federal government to control the actions of state and local governments (New York v. United States 1992; Seminole Tribe of Florida v. Florida 1996; Idaho v. Coeur D’Alene Tribe 1997; Printz v. United States 1997; Alden v. Maine 1999).