By Steph Tai and Michael Vandenbergh
Wetlands aren’t the most eye-catching ecosystems. They include swamps, bogs, fens and other places where soil is covered by water most of the time. But they perform a huge range of valuable services, from soaking up floodwaters to filtering out pollutants and providing habitat for thousands of species of mammals, fish, reptiles, insects and birds.
In a high-profile 2023 ruling, Sackett v. Environmental Protection Agency, the U.S. Supreme Court greatly limited federal power to protect wetlands. According to one estimate, this ruling stripped federal protection from up to 90 million acres of wetlands across the U.S.
Today, the U.S. is losing wetlands, mainly to development and agriculture, at an accelerating rate. With Congress polarized and gridlocked, new federal wetland protection laws are unlikely to be enacted in the next several years.
Some states have stepped up to fill the gap, but others have instead chosen to roll back their existing protections. This comes despite the fact that even before the Sackett ruling, people across the U.S. strongly favored more protection for wetlands.
We are environmental law scholars who recently conducted a study, to be published in a forthcoming issue of the Minnesota Law Review, that explores how private environmental governance can protect wetlands. This approach uses private agreements, certifications and other practices such as monitoring and dispute resolution to foster sustainability.
Relying on private action is not a substitute for regulation, but it can act as a stopgap while other legislative and regulatory efforts are developed. And it can complement new laws and regulations once those measures are in place.
Certifications and supply chain leverage
Corporations and nongovernment organizations have a variety of ways to encourage protection of wetlands.
First, certification bodies can develop standards for wetland-friendly goods, much like fair trade labels for products that promote safe working conditions, environmental protection and living wages for producers. Greater use of such standards can allow customers, investors and lenders to vote with their wallets. An example might be a label that identifies products made from ingredients grown on farms that preserve wetlands.
For construction, a gold standard already exists for the environmental certification of buildings: Leadership in Energy and Environmental Design, or LEED, certification. LEED already incorporates some wetland protections, and its requirements can be bolstered to ensure protection of wetlands exposed as a result of the Sackett ruling.
Next, corporate pressure can use supply chain contracting to influence the sectors most likely to fill in wetlands: farming, construction and forestry. Corporations could require suppliers to agree not to damage wetlands exposed by the Sackett decision, in the same way that companies already use contracts to address other environmental issues.
For example, Whole Foods Market requires suppliers to follow a code of conduct that includes minimizing their impacts on the environment, avoiding deforestation and seeking opportunities to conserve water. Similarly, Albertsons, the fourth-largest U.S. grocery store chain, requires suppliers to strive to reduce natural resource destruction and water contamination.
The role of banks and investors
Large institutional investors and lenders can also play a role. Those with sustainability policies can insist that developers seeking funds follow pre-Sackett wetland protections.
Major banks have already shown various degrees of commitment to sustainability. In 2003, 10 leading banks from seven countries adopted the Equator Principles, a set of principles designed to “serve as a common baseline and risk management framework for financial institutions to identify, assess and manage environmental and social risks when financing projects.”
This includes conducting environmental risk assessments of projects applying for financing, adopting measures to minimize and mitigate risks, and as a last resort compensating for unavoidable effects. We believe this list should be expanded to include assessing the risk of wetlands loss in project financing.
Several banks recently backed out of adhering to these principles but pledged generally to continue to follow them. Nongovernment organizations can help protect wetlands by tracking financing for proposed developments in vulnerable areas.
Reducing flood risks
Insurance companies can also help fill the gap in wetland protection. Because wetlands are valuable buffers against floods, property insurers have a vested interest in reducing wetland losses.
Many California insurance companies facing rising costs due to climate change have stopped issuing new policies there. Similar decisions are occurring in other disaster-prone states such as Louisiana and Florida.
Without access to insurance, businesses will be less likely to invest in these states. Reducing flood risks due to wetland destruction could help reduce risk for insurance companies.
Private insurers could refuse coverage to properties that significantly degrade wetlands no longer protected after Sackett, or they could make coverage contingent on binding commitments not to degrade wetlands. And conservation groups could work with private insurers to develop climate-focused coverage for particularly sensitive wetlands left uncovered after Sackett.
In an example of this approach, The Nature Conservancy, an environmental nonprofit, bought insurance in 2022 to fund restoration of Hawaii’s coral reefs if they are damaged by hurricanes or tropical storms.
Retail customers, employees, community members and nonprofit groups can place economic pressure on companies to incorporate such protections into their operations. This kind of private pressure has already spurred companies to pledge to reduce their greenhouse gas emissions. Until states and Congress pass new laws to prevent wetlands from being destroyed, we see action by businesses and nongovernment organizations as the most promising substitute.
Steph Tai, Professor of Law and Associate Dean, Nelson Institute for Environmental Studies, University of Wisconsin-Madison and Michael Vandenbergh, Professor of Law and Co-Director, Energy, Environment and Land Use Program, Vanderbilt University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Steph Tai is Professor of Law and Associate Dean at the Nelson Institute for Environmental Studies at the University of Wisconsin-Madison. Michael Vandenbergh is
Professor of Law and Co-Director of the Energy, Environment and Land Use Program at Vanderbilt University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
JOE D says
All these private sector interventions sound great, but until our local ELECTED leaders put preserving wetlands ( and the environment in GENERAL), at the top of the priorities list (instead of money and greed), we are going to irreversibly damage our incredible (and delicate) Florida eco-system. That’s why I chose Florida as my retirement spot when planning 24 years ago….it CERTAINLY wasn’t the POLITICS!
Of course you can’t really BLAME local elected officials for their environmental short sightedness, when you have the Governor’s office occupied by someone who INSISTED all mention of CLIMATE CHANGE issues be stricken from the Florida State official documents! I wonder what THAT process COST Florida taxpayers?!?
I guess you lead by example….sad as it is currently.
Callmeishmael says
This is how it’s always been in Florida. We’ve been the Great State of Environmental Exploitation for generations.
I think it should be mandatory for every high school/college student in Florida to read The Swamp by Michael Grunwald and Bubble in the Sun by Christopher Knowlton. Two superb accounts of the arcadia Florida once was and how unmitigated development created the artificial paradise it is today.
Of course, these books would probably be banned in schools.
Eric says
Deforestation is the number one reason for global warming. And palm coast is leading the way in that department!
NJ says
Flagler County NEEDS a Farm, Ranch, and Forest Conservation Organization like RIFCO.org which has Protected from Carpetbagger Developments in RI. CT also has a Conservation Organization. This is WHY eastern CT and western RI is named “The Last Green Valley”. We CAN organize to Protect the Farms, Ranches, and Forest of Western Flagler County. WHO will HELP me???