Biodiversity and the Law

William J. Snape, William J. Snape

• Publisher: Island Press
• Year: 2013
• ISBN:
  9781610912549
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Biodiversity and the Law is a timely and provocative volume that combines historical perspective and cutting-edge legal analysis in an authoritative and broad discussion of biodiversity and the law. Leading legal and policy experts consider a variety of options for the worldwide protection of biodiversity and present a succinct but comprehensive overview of the legal mechanisms available. They examine how conservation advocates can better utilize existing law, and consider what new law is needed.

Among the topics considered are:

• scientific and policy foundations of biodiveristy protection
• domestic efforts to establish an effective endangered species protection regime
• international biodiversity protection
• biodiversity as a genuinely public entity
• the future of biodiversity law

Contributors include Mollie Beattie, Don Waller, Jason Patlis, Lindell Marsh, Todd Olson, Peter Jenkins, Suzanne Iudicello, John Pendergrass, Dinah Bear, Walter Kuhlmann, Rodger Schlickeisen, David Downes, and others.

PART I

BIODIVERSITY LAW: WHERE SCIENCE AND POLICY MEET

Choices made today can narrow or expand future options.

—LYNTON CALDWELL

If protecting natural biodiversity is a genuine policy goal, both existing law and present interpretations of existing law are clearly inadequate. Biodiversity is plummeting at an alarming rate. Many large mammalian predators, from Asian tigers to Florida panthers, are on the brink of extinction as their habitats shrink and poachers exploit them. A great majority of our planets bird species are in decline. Amphibians are vanishing mysteriously and precipitously Countless invertebrates are disappearing before humans even know they exist. Native plant species are being trampled by development or overrun by exotics. Entire fisheries, once plentiful, have collapsed.

The list of depleted and vanishing species is as long as it is depressing. Ideally this problem could be solved by passing national biodiversity protection statutes across the globe that would lead to an instant cure. There are, however, two fundamental difficulties with this approach. First, such a scenario presumes that individual governments possess the political will to take such action. Second, it is far from certain that even committed policymakers know exactly how to stem the loss of biodiversity. Because biodiversity law is essentially about the intersection of broad environmental policy with science-based regulation, it is fitting that Part I features two eminent nonlawyers: U.S. Fish and Wildlife Service director Mollie Beattie and University of Wisconsin–Madison botanist Donald Waller, each of whom discuss the obstacles in establishing an effective biodiversity protection regime.

Director Beattie’s challenge is especially daunting. As head of the leading federal wildlife agency, she sits in the hot seat of almost all major U.S. biodiversity policy initiatives and reactions. While environmentalists constantly warn her of the dire straits of America’s wildlife species, natural resource industries clamor for job security in a ruthless global marketplace. With endangered species petitions stacked to the roof and management responsibilities of over 90 million acres of national wildlife refuges, Director Beattie must frequently remind people that the choice between jobs and species is a false one. Protecting biodiversity will protect jobs that last beyond tomorrow or next year. If water use from an aquifer, for example, is causing even a small aquatic species to decline, it is logical to conclude that such water depletion will eventually harm humans similarly dependent on that aquifer. It is not coincidence that the terms ecosystem, ecology, and economics all possess the same Greek root (eco) meaning “home.” Still, too many Americans continue to believe that unfettered natural resource use is possible and indeed desirable. Whether this belief is the result of some innate American optimism or the 1980s-like penchant for a free lunch, Director Beattie and the rest of her colleagues in government often face a tough sell in promoting biodiversity initiatives.

The federal government, in particular, faces numerous challenges in advancing biodiversity protection. Apart from the fact that biodiversity is a relatively long-term public interest, meaning that its injury is likely to be felt most acutely by future generations, federal species protection also inherently intrudes on traditionally nonfederal concerns. Unlike federal pollution prevention or remediation statutes such as the Clean Air Act or Superfund, which largely concentrate their attention on specific industries and sites, ecologically based laws like the Endangered Species Act (ESA) necessarily touch almost every square acre of American soil and water and affect almost every human action.

This type of regulatory supervision is a problem for the federal government in several respects. First, through a tradition dating back to Roman law, state governments have historically managed wildlife.¹ Second, states (and by delegation local governments) possess what are known as “police powers,” which are utilized to secure the people’s health, safety, and welfare.² Third, federal biodiversity protection, authorized by the Constitution’s commerce clause among others³ comes at a time of extreme hostility and frustration toward the federal government. Despite the best efforts of public servants like Beattie, the American electorate has become downright surly toward a federal bureaucracy considered inefficient at best and toward a Congress where the theatrics of Democrat-Republican jousts are carried out at the expense of policies that could benefit Americans as a whole.

Consequently, Beattie manages an agency in the midst of monumental paradigm shifts. The most significant of these institutional changes is the way in which public resource decisions are now being made and implemented. A qualified and conscientious public land professional acting alone is no longer sufficient to manage natural resources, as both the science and politics of biodiversity protection demand that this professional incorporate the sentiments of his or her own interdisciplinary staff, other affected federal agencies, applicable state and local officials, and an increasingly educated public.⁴

From the perspectives of both democracy and biodiversity, the bottom line is process—that is, in order to manage the array of natural biotic communities in a given land unit, the government must not only solicit participation from a diverse citizenry but must also understand the complex relationships between and within wildlife species. The government, in other words, should be receptive to new ideas from both human citizens and the greater natural world.

These changing bureaucratic and environmental factors are almost perfectly encapsulated by the recent ascension of “ecosystem management” in conservation circles. On its face, the concept is highly appealing. Instead of focusing on single species and particular patches of habitat, this approach takes a look at the big picture, recognizing Leopold’s observation that “the individual is a member of a community of interdependent parts.”⁵ In theory, the approach should be as effective as it is efficient.

Dig below the surface, however, and unresolved issues percolate rapidly. The biggest problem is definitional. To the environmental professional, ecosystem management means protecting viable populations of all naturally occurring species and their habitat within and between ecosystems. To the livestock, timber, or development industries, ecosystem management is generally considered this generation’s version of multiple use/sustained yield (MUSY),⁶ which enables them to extract human commodities from a portion of an ecosystem so long as another portion is protected. Each definition and set of policy alternatives possesses significant ramifications for biodiversity.

As might be expected, the government is usually caught between competing views; indeed, different officials and presidential administrations are sympathetic to various points of view. To further complicate matters, there are many definitions of what exactly constitutes an ecosystem. Should it be based on keystone species like grizzly bears or prairie dogs? On vegetation varieties and patterns? On weather or related geophysical characteristics? Other problems with implementing ecosystem management include questions of spatial scale (how ecosystems relate to larger areas), boundaries (who is in charge of what), natural processes (distinguishing between dynamism and stability), temporal change (how long is long), data collection and monitoring (is management working), and, most challenging, the natural role of humans in an ecosystem (consumption, recreation, conservation, preservation). In short, the law pertaining to ecosystem management is still in great flux.

Nonetheless, ecosystem management is beginning to yield some conservation policy gains that surely would not have occurred in the era of single-species regulation. Under the auspices of the Endangered Species Act, for instance, four federal agencies (including the FWS) and the state of California struck a historic deal on water use in late 1994 on the San Francisco Bay and Sacramento–San Joaquin Delta Estuary. This agreement established limits on freshwater diversion for agricultural and municipal uses, protections for the threatened delta smelt and other fish, and measures for valuable wetlands habitat. Officials like Director Beattie and Governor Pete Wilson should receive considerable credit for this complicated but cooperative piece of biodiversity negotiation.⁷

While Professor Waller might enjoy the luxury of examining different notions of ecosystem management outside a political pressure cooker, his scientific understanding of biodiversity only hastens his sense of urgency For the past several years, Waller has been an integral part of efforts to protect biodiversity in two Wisconsin national forests. As a result of these administrative and judicial tribulations, Waller is now keenly aware of the importance in securing scientifically sound interpretations of sometimes ambiguous environmental law. The U.S. Forest Service’s (USFS) reluctance to fully embrace the natural diversity requirements in the National Forest Management Act of 1976,⁸ the only U.S. statute with such an explicit mandate, has led Waller and other top conservation biologists to confront the often clumsy interface between science and law.

Waller and Defenders of Wildlife convened a workshop in Madison, Wisconsin, in July 1994 for the purpose of helping the Forest Service and other land management agencies articulate criteria, standards, and procedures essential for effective biodiversity management.⁹ The assumption behind the meeting was that, despite the usual professional disagreements on certain cutting-edge questions, the science of conservation biology had greatly matured since a panel of experts convened by the USFS in 1977 stated, “We believe it is impossible to write specific regulations to provide for diversity.”¹⁰ The impetus for the Madison workshop was several recent federal cases,¹¹ which essentially have held that it was inappropriate for the judiciary to question the USFS discretion on land management matters, even if this supposed expertise was leading to decisions antithetical to well-accepted and current scientific understandings of biodiversity. In the Wisconsin cases, for example, national forest managers had ignored the ecological consequences of forest fragmentation, did not include sufficient migration corridors, and purposely created deleterious edge effects with their timber cut rotations. Such practices are still being repeated across the country. The Madison group’s goal, therefore, was not only to enunciate the established tenets of conservation biology but also to demonstrate that the applicable U.S. land agencies were not even remotely following them.

The major breakthrough of the Madison workshop was an identification of the need to develop guidelines for so-called sustainable dynamic areas (SDA).¹² An SDA is the minimum habitat needed for the long-term perpetuation of all ecological processes and community types within a managed unit. It must be large enough to allow fires, blowdowns, and other natural disturbances, which are essential to maintaining all biotic communities and to providing a healthy variety of naturally occurring seral stages. In conjunction with the somewhat traditional minimum viable population (MVP) requirements for all naturally occurring species, the SDA approach would scientifically support the hypothesis that large natural preserves, surrounded by areas of tiered human development, are the surest and perhaps best way to protect native biodiversity.¹³

The large natural preserve approach to biodiversity protection has been advocated by environmental activists in the form of the Wildlands Project¹⁴ and by the U.S. Congress in the form of the Northern Rockies Ecosystem Protection Act (NREPA) bill.¹⁵ NREPA, which would establish a huge network of wilderness and other highly protected federal landholdings, is a fascinating case study of late-twentieth-century biodiversity protection for two major reasons. First, despite cosponsorship by over sixty members of the House ...

Table of contents

• Title Page
• Copyright Page
• Dedication
• Table of Contents
• FOREWORD
• PREFACE
• ACKNOWLEDGES
• INTRODUCTION
• PART I - BIODIVERSITY LAW: WHERE SCIENCE AND POLICY MEET
• PART II - BIODIVERSITY’S SAFETY NET: SAVING ENDANGERED SPECIES
• PART III - INTERNATIONAL PROTECTION: BEYOND HUMAN BOUNDARIES
• PART IV - WHO OWNS WHAT? A PUBLIC TRUST FOR BIODIVERSITY
• CONCLUSION
• EPILOGUE - THE ARGUMENT FOR A CONSTITUTIONAL AMENDMENT TO PROTECT LIVING NATURE
• ABOUT THE CONTRIBUTORS
• INDEX
• ISLAND PRESS BOARD OF DIRECTORS