Conservation and Recreation in Protected Areas

A Comparative Legal Analysis of Environmental Conflict Resolution in the United States and China

Yun Ma

• Publisher: Routledge
• Year: 2016
• Topic: Law
• eBook ISBN:
  9781317161882
• Subtopic: Comparative Law
• Index: Law

This book provides a comprehensive and up to date comparative study of the management and resolution of conflicts between conservation and recreation in protected areas in the US and China. Competing claims on the use of nature, increasing regulation of land use and recreational activities, and the conflicting goals between conservation and development have led to a rise in conflicts in the designation and management of protected areas. How to effectively manage and resolve these conflicts has become a challenge for both legislators and managers. By adopting an institutional dimension in legal interpretation, this book critically examines how such conflicts are dealt with in the legal regimes of the US and China while exploring interactions between legislatures, agencies and courts. The book searches for a plausible solution to improve the legal framework of protected areas in China by emulating pertinent mechanisms developed in the US, whilst also presenting legal and policy recommendations to the US. This informative book will be useful for legal scholars in Chinese law, nature conservation law, administrative law and comparative law.

1 Introduction

Everyone needs to play, and to play out of doors. Without parks and outdoor life all that is best in civilization will be smothered.

Enos Mills¹

Research Topic

Nature, gifted with grandeur and a bounty of resources, has long been revered by human beings and continually shaped by our footprints. The way we perceive nature and our current interactions with nature have changed significantly over the past century. Nature demonstrates different facets: it is not only a reservoir of resources for conventional commodity use but also a popular tourist destination, a pleasurable playground, a laboratory for scientific research, a wildlife paradise, a basis of world heritage and a revenue generator for local economies.² The demand for various uses of nature has increased and diversified. This situation has produced a transformative process for public land³ that has continued to the present day. Two dominant features of this transformation process can be identified across different jurisdictions: one feature is an increase in public awareness of nature conservation and the other is an increase in recreational demands and the accompanying blossoming of the tourism industry.

In terms of the first feature (i.e. conservation awareness), environmental protection has become a foundational tenet of the current political, social and legal discourses at the international and domestic levels.⁴ To protect the natural landscape from derogating behaviors by humans, particular geographic areas are carved out of the public domain and receive dedicated protection. This idea underpinned the establishment of Yellowstone National Park in 1972 in the United States (US), which was the first national park in the world. Since then, the designation of protected areas (PAs) has emerged and become a dominant and effective conservation tool worldwide.⁵ In terms of the second feature (i.e. the boom of recreation and tourism), recreational use, including traditional activities such as hiking, camping and fishing, and new activities such as kayaking and snowmobiling, has emerged as a crucial component of the overall public land use pattern. This boom has occurred not only in developed countries such as the US but also in developing countries such as China, as indicated by the burgeoning nature-based tourism markets in both countries.⁶ Numerous activities collectively make tourism ‘the largest industry on the planet’.⁷

The transformation of public land-use patterns presents challenges to PA managers, who must manage various expectations to shape nature, accommodate different interests and claims to use nature and reconcile potential conflicts. Natural resources in PAs are usually subject to common access; they are managed collectively and are interrelated with the ecological process.⁸ Due to these features, different uses of nature may physically interact and unavoidably compete with each other in both temporal and spatial dimensions. Therefore, trade-offs are needed to balance the allocation of different uses of public lands. The three most important types of uses that have tilted this balance are commodity use, conservation use and recreational use.⁹

Various dynamics exist in the interactions among these three types of uses. Conservation and recreation have demonstrated a symbiotic relationship. Recreation was the foundation of the original constituencies for the idea of national parks, which can be observed in the case of the US. A well-conserved environment is the basis for sustainable tourism development and guarantees the quality of recreational experiences.¹⁰ Therefore, a coalition has been formed between conservationists and recreationists against the exploitative commodity use of nature. For example, both groups may oppose the construction of dams for energy purposes because dams may not only cause ecological derogation but also deprive whitewater enthusiasts of rafting. However, this traditional coalition has gradually collapsed due to the emergence of mass recreation and industrial tourism. Recreational overuse and high-impact recreational use, particularly motorized recreation, have had considerably negative impacts on the surrounding environment. Relentless people pressure coupled with advances in recreation technology make conservationists increasingly cautious about escalating recreational demand. Moreover, recreationists have also been greatly divided, especially between low-impact recreational users, such as hikers and bird watchers, and high-impact recreational users, such as off-road vehicle drivers and snowmobilers. For example, snowmobile users may destroy snow trails previously used by skiers, and swimmers may lose access to rivers if these waters are designated for whitewater rafting.

Partly to mitigate the potential conflicts arising from different uses of nature, modern conservation law has focused on the management and regulation of the use of PA resources. Exploitative use is categorically prohibited or intensively regulated within PAs. Attempts have been made to control, decrease, or even eliminate some forms of recreation. To realize these goals, some legal and managerial instruments have been broadly adopted across different jurisdictions, such as environmental impact assessments, environmental standards and permits, the delineation of carrying capacities and setting caps on visitor numbers.

However, designing and implementing a regulatory framework that can satisfy all stakeholders is no easy task. The key to regulation lies in deciding which forms of recreational use are appropriate, as well as the scale and degree to which a proposed type of use is permissible. Any activity may unavoidably have an impact on the natural environment. Therefore, the baseline of regulation is ‘how much intrusion upon the untrammeled ecosystem we are prepared to tolerate’.¹¹ Different groups have their own preferences for delimiting such a baseline. As a result, disputes about what constitutes appropriate and sustainable use and how management authorities should behave in making such a judgment flourish.

Conflicts may not only arise from competing claims to the use of nature but also from different objectives and goals that PAs must serve. In addition to providing ecosystem services, PAs may serve development goals, such as economic development, poverty alleviation and the improvement of local livelihoods, especially in developing countries.¹² On the one hand, tourism benefits are deemed the most environmentally friendly way to contribute to local economies, mitigate the financial loss of local communities and improve local communities’ livelihoods. On the other hand, the designation and management of PAs may cause ‘people–park conflicts’, which manifest in the resentment of local communities toward PA designation and the enforcement of conservation law.¹³ Strict regulations of traditional uses of natural resources by local communities may deteriorate these communities’ livelihoods. Increasing numbers of visitors may deprive local communities of access to and control of natural resources. An unbalanced distribution of tourism benefits and conservation burdens may marginalize the local population and create injustice. To solve these problems, some fundamental inquiries need to be made: should nature be preserved for its intrinsic value per se, or should it serve human needs and development goals? How should human beings be situated in natural settings?

Old problems and new challenges are intertwined, making the issue of PAs a battlefield. The effective management of conflicts in PAs calls for a robust, adaptive and resilient application of the law. The kernel of the law lies in identifying potential uses, recognizing potential conflicts, determining a designated use pattern based on the selection and assessment of values, regulating uses and managing conflicts that arise from the uses of PA resources. Aagaard argues that ‘environmental law is better understood as a way of managing conflicting uses of environmental resources’¹⁴ and proposes the ‘use-conflict’ framework as ‘a way of organizing thinking about environmental problems and lawmaking’.¹⁵ In the context of this ‘use-conflict’ framework, the types of uses and conflicts, the regulatory patterns and the ways that disputes are adjudicated may be similar or different in different jurisdictions. Thus, the degree to which conflicts may be effectively managed and resolved may differ under different domestic legal frameworks.

This book chooses the US and the People’s Republic of China (hereinafter, China) as two examples of jurisdictions for comparative study. Both countries have designated a variety of PAs across their considerably vast territories. Abundant natural and scenic resources have created many recreational opportunities, together with burgeoning nature-based tourism markets in both countries. As the flagship designation of American public land, the concept of the national park has evolved for more than a hundred years in the US. The National Park Service, the federal management agency of the National Park System, celebrates its centennial in 2016. Winks claims that the American National Park System is the ‘most complex, the most carefully articulated, and thus the most specific system in the world’.¹⁶ In addition to accumulating abundant experience in the management of national parks, the US offers a great opportunity to examine how its legal system for national parks is structured: ‘Legislation passed with respect to the [National Park System] . . . whether generic to the system as a whole or specific to an individual unit, has more extensive application than any other park system in the world.’¹⁷ Congressional statutes, agency regulations and management policies, and judicial case law have shaped the conservation and recreation patterns of national park lands.

In China, a complicated conservation scheme has been formulated since the 1950s. The opening up of China since the 1980s has led to a great liberation of the economy and a blossoming of the tourism industry. The tremendous transformation of China in the last two decades at the economic, societal and political scales provides fresh insights for the current research. In addition to its ‘economic miracle’, China has astonished the world with its serious environmental problems that have been exposed in recent decades.¹⁸ Committed to fighting environmental deterioration and creating a green economy, the Chinese government has hastened its pace of environmental law making. PA designation, nature conservation, biodiversity protection and the maintenance of ecological security have gained considerable weight in the political agenda. However, because China has a poor rep...

Table of contents

• Cover Page
• Praise
• Conservation and Recreation in Protected Areas
• The Rule of Law in China and Comparative Perspectives
• Title
• Copyright
• Contents
• Figures
• Tables
• Cases
• Abbreviations
• Preface and Acknowledgments
• 1 Introduction
• Part 1 Conflicts in Theory: Concepts, Institutions and Rationale
• Part 2 Country Studies: United States
• Part 3 Country Studies: China
• Appendix I The List of Applicable Laws on Protected Area Management in China
• Bibliography
• Index