A recent headline on the front page of the Wall Street Journal hailed the opening of the nation's first "butterfly bank." The "deposits" in this unusual bank are conservation credits earned by preserving an important area of habitat for the Quino checkerspot butterfly, an endangered species restricted to California. The bank's intended customers are other landowners who hope to develop other sites where the butterfly occurs. In order to do so, they can buy credits from the private entrepreneur who established the butterfly bank.

Meanwhile, just a week earlier on the nation's other coast, the state of North Carolina announced that it was purchasing a large tract of land containing a number of endangered red-cockaded woodpeckers. The state's intention is to earn conservation credits that it can use to meet future mitigation requirements when the state's transportation department builds new roads in woodpecker habitat elsewhere. The California and North Carolina examples illustrate two forms of a new phenomenon, generally known as either conservation banking or mitigation banking for endangered species.

In a recent article reviewing the U.S. Supreme Court's environmental decisions over the last 30 years (1969-1999), Professor Richard Lazarus argues that "the Justices have never fully appreciated environmental law as a distinct area of law."¹

They perceive environmental law instead as merely an incidental factual context, in which environmental protection concerns are at stake, but there is nothing uniquely environmental about the legal issues being raised. The Justices, accordingly, fail to appreciate how the nature of the environmental concerns being addressed can sometimes be relevant to their resolution of those legal issues.²

A more substantive precautionary principle of international law is evolving as new treaties articulate new measures of precaution in different contexts. Although there is considerable controversy over how to articulate or define a precautionary "principle" of law, the goal is to ensure that the mere lack of scientific knowledge about risks cannot justify a failure to take appropriate precautions. Where we have sufficient evidence of risk, we often take precautions, despite a lack of certainty about those risks. The question arises, however, what the difference is between adopting a precautionary principle and merely taking precautions. Put another way, what is to be gained by adopting a precautionary principle at all, as compared to merely taking precautions? This Article explores that question by using the example of food safety regulation in the United States. My principal conclusion is that although precautionary measures for achieving food safety in the United States are some of the oldest and most successful in the world, even such measures fall short when they are evaluated from the unifying perspective of the precautionary principle.

Any articulation of the precautionary principle would apply at two distinct levels of decisionmaking: (1) decisions about the factual situations that trigger justifiable recourse to precautionary measures; and (2) the management decisions to select the desired level of protection and to establish measures to achieve that level of protection. The first aspect involves primarily risk assessment, while the second is part of risk management. This Article examines these levels of decisionmaking in the regulation of food safety in the United States. My objective is not, of course, to provide a comprehensive survey of that regulatory structure. Rather, the goal is to use food safety regulation to find concrete examples of the difference between merely taking precautions and adopting the precautionary principle. A byproduct of this examination is a more detailed account of what it means to adopt the precautionary principle.

The Defenders of Wildlife Judicial Accountability Project—undertaken with the assistance of the Vermont Law School Clinic for Environmental Law and Policy—seeks to fill a data void on the environmental record of President George W. Bush and his Administration by analyzing all reported environmental cases in which the Bush Administration has presented legal arguments regarding an existing environmental law, regulation, or policy before federal judges, magistrates, or administrative tribunals. By examining judicial decisions and legal briefs for federal cases, the aim is to identify quantifiable trends on whether, or to what degree, President Bush and members of his Administration are working to preserve, protect, and defend the U.S. Constitution and laws of the United States as sworn in their oaths of office.

The focus of this Article is the laws, regulations, and rules that govern the management of national forests. The National Forest System is composed of 155 national forests and 20 national grasslands. These lands cover roughly 8% of the country, 191 million acres in 42 states. They provide a wide range of values and services, including vital wildlife habitats, ecosystem services like clean water and air, irreplaceable recreation opportunities, and timber and nontimber resources. The National Forest System includes a wide range of natural plant and animal communities, including some of the most significant and important examples of native ecosystems. More than 17% of federally threatened and endangered species and over 25% of species not federally listed but recognized by scientists as imperiled reside on national forests, more than on any other category of federal lands. In addition to providing necessary habitat for rare species, national forests support populations of many more common species, providing an opportunity to assure their long-term viability through proper forest management. National forests are particularly important for species such as wolves, grizzly bears, elk, lynx, wolverines, and migratory birds that require large and relatively intact blocks of habitat.