The Yellowstone Affair: Environmental Protection, International Treaties, And National Sovereignty

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Environmental regulation has gone international in recent decades. There has been a proliferation of treaties, conventions, and protocols aimed at protecting the “global environment.” Such agreements may reinforce a mode of thinking that slights national sovereignty and discourages sound approaches to environmental protection.

The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage provides a mechanism by which governments can seek international recognition for places of special historic, cultural or natural significance by listing them on a roster of “world heritage sites.” This roster is developed by an international authority called the World Heritage Committee, which operates in association with UNESCO (United Nations Educational, Scientific and Cultural Organization). UNESCO’s “Man and the Biosphere” Program also involves a list of international sites, some four dozen now in the United States.

The proliferation of such international treaties and programs has provoked concern, particularly in the western United States. Members of Congress were particularly alarmed at the U.N.’s apparent intervention into a domestic environmental dispute near Yellowstone National Park. In response, House Resources Committee Chairman Don Young (R-AK) introduced “The American Land Sovereignty Protection Act” in the summer of 1996. The measure would require the express, prior consent of Congress (and of relevant state and local authorities) before submitting any particular American site to international supervision.

The controversy regarding Yellowstone arose from a 1989 proposal by Crown Butte Mines, Inc. to develop a Montana mining site, known as the New World Mine, near Yellowstone Park. From the outset, environmental advocacy groups denounced the project as a threat to the Yellowstone ecosystem. To prevent the mine’s development, fourteen environmental groups asked the World Heritage Committee to investigate the threat posed to Yellowstone by the proposed Crown Butte mine. The Committee obliged and voted to place Yellowstone on its list of sites “in danger,” though even the draft Environmental Impact Statement had not yet been completed. The environmental groups trumpeted this action as yet another reason to oppose the mine. The American delegate at the meeting assured the committee that the United States government did not regard this decision as an improper intrusion into the domestic law or policy of the United States.

Rather than try to defend its project, Crown Butte announced, in August 1996, that it was abandoning its effort to develop a mine in the Yellowstone area. Instead, it accepted a U.S. government offer to trade its mining claims there for others at another site to be determined.

Perhaps the outcome would have been the same even if the World Heritage Committee had not been brought into the dispute. But environmental advocates thought they gained extra leverage by appealing to international authorities. And the U.S. government, rather than rely on its own legally mandated procedures, readily cooperated in this effort to use an international entity to influence the resolution of an internal domestic dispute. The leading actors in this little drama were quite ready to invoke international obligations as the cover story for what they did.

The assumption behind the World Heritage program is that a site of special historic,  ultural or scenic importance is better protected by an international consortium of governments than by the particular sovereign state on whose territory it exists. In other words, such sites will be better protected by diffusing responsibility for their protection among many different governments than by focusing responsibility on the government most concerned. The “Strategic Plan for the U.S. Biosphere Reserve Program,” frequently invokes the ambiguous term “stakeholder,” an amorphous term designed to blur distinctions between owner and spectator and citizen and outsider.

It may be argued that programs of this kind, even if they do little good, still do no great harm. What they do is nurture a kind of alternate reality. It is mostly a fantasy world and as such does not impinge very often or very directly on the real world. But fantasies can evolve into settled delusions and delusions can carry people – and governments – in very foolish directions. At the very least, these programs are a threat to the clarity of law.

If programs like the World Heritage Convention and the Biosphere Network are symbolic, they are symbols of an outlook that imagines we can have regulation without law, obligation without enforcement, agreement without compromise, protection without possession – and a world without borders. We can dismiss these programs as symbols. But they symbolize visions which, if taken seriously, would be quite dangerous.