Legal Foundations of Conservation Biology

Conservation Biology is a legally empowered discipline.

In other words, it represents a scientific community that has received legal, political, and cultural incentives and reinforcements.

Throughout the world, the goals of conservation biology are increasingly established and enabled by laws.

In the U.S., most of the major environmental legislation had been established by the mid-1970s, preceding the development of conservation biology as a professional and academic discipline.

Although conservation biology might well have developed without national environmental legislation, it would have been substantially less influential.

The body of modern environmental legislation enacted since 1960 has affected conservation biology by:

1. Giving legal incentives and approval for biodiversity preservation.

2. Affirming many of the goals of conservation biology and influencing the public to value conservation.

3. Providing a legal environment that both requires and sustains scientific research, management, and monitoring.

A Partial List of Major U.S. Conservation and Environmental Legislation Since 1960

Wilderness Act - 1964

Land and Water Conservation Act (LWCF) - 1965

National Environmental Policy Act (NEPA) - 1969

Clean Air Act - 1970

Clean Water Act - 1972

Marine Protection, Research, and Sanctuaries Act (MPRSA) - 1972

Endangered Species Act (ESA) - 1973

National Forest Management Act (NFMA) - 1974

Comprehensive Environmental Response, Conservation, - 1980 and Liability Act (CERCLA)

Wilderness Act – 1964

• Established National Wilderness Preservation System and defined “wilderness”.

• Established protection of wilderness lands from industrial development.

National Wilderness Preservation System

Land and Water Conservation Fund Act - 1965

• Established to preserve land for recreational opportunities.

• Designated federal revenues to establish a trust fund fro the acquisition of parks and conservation lands.

• Amended in 1968 to include receipts from oil and gas lease revenues from outer continental shelf.

Land and Water Conservation Fund

National Environmental Policy Act – 1969

• Established environmental quality as a leading national priority of major federal actions.

• Required a detailed statement on the ecological consequences of planned actions before any action is taken.

• Required that an environmental impact statement be written if the environmental assessment finds that the planned actions would have a significant impact on the environment.

U.S. Environmental Protection Agency’s NEPA Page

Clean Air Act – 1970

• Required EPA to set air quality standards.

• Regulated industrial pollution, requiring industries to apply for (and pay for) pollution permits.

• Required that each state develop a state implementation plan describing its efforts to control pollution.

• Increased spending on air pollution

Clean Water Act - 1972

• Set a goal of zero discharge of pollutants and focused on improving the quality of navigable waters.

• Established a permit system and set industrial limits on tolerable pollution discharge.

• Required municipal waste treatments with federal aid to construct publicly owned sewage treatment works.

• Amended in 1977 creating pretreatment requirements for industrial firms discharging wastes and requiring that states develop management plans for nonpoint source pollution.

• Amended in 1987 establishing a program to phase out federal grants by 1995 by giving responsibility to the states to raise and distribute funds.

Marine Protection, Research, and Sanctuaries Act - 1972

• Designated sites and times for waste disposal.

•Regulated waste disposal into the ocean beyond the 3 mile limit by prohibiting dumping of certain types of waste.

• Established a research program to study the effects of waste disposal on the ocean.

• Authorized the issuance of permits by the Secretary of the Army for dredged material

Endangered Species Act – 1973

• Designed to prevent extinction of species in U.S. and worldwide.

• Amended in 1978 to be more sensitive to economic impacts.

• Authorized the determination and listing of species as endangered and threatened.

• Prohibited taking endangered species.

• Provided authority for land acquisition.

• Required TEDs on fishing nets.

• Amended 1989 prohibiting the import of shrimp from countries not meeting regulations.

U.S. FWS Endangered Species Program

National Forest Management Act – 1974

• Governs the administration of national forests.

• Required the Secretary of Agriculture to assess forest lands, development a management program, and implement a resource management plan.

• Authorized $200 million to be appropriated annually to meet the requirements of the Act.

• Stressed that forest planning should protect biodiversity.

• Placed restrictions on forest use.

Comprehensive Environmental Response, - 1980 Conservation, and Liability Act

• Also known as Superfund, the name of the trust fund which it established.

• Designed to allow for the cleanup of sites in order to protect public health and the environment.

• Required identification of potentially responsible parties to pay for the cleanup of hazardous waste sites.

• Amended in 1986 as Superfund Amendments and Reauthorization Act

• Amended in 1995 as Brownfield’s Action Agenda

National Environmental Policy Act

In 1966, Lynton K. Caldwell, a professor of public administration, published a paper entitled “Administrative Possibilities for Environmental Control”.

In it, he suggested that qualitative environmental standards could provide significantly improve natural resource policy.

The paper became one of the most influential publications on environmental policy in the late 60s.

Congress employed Caldwell to help draft a law designed to be the centerpiece of a new era of environmental and conservation legislation, the National Environmental Policy Act of 1969.

In writing the Act, Caldwell mandated that a “detailed statement” must accompany “proposals for legislation and other major federal actions signficantly affecting the quality of the human environment”. This led to the development of the now-familiar “environmental impact statement”.

NEPA was signed into law by Richard Nixon on January 1, 1970.

The teeth of NEPA lay in the “detailed statement” on the environmental consequences of actions.

Each such statement must describe:

1. The environmental impact of the proposed action.

2. Any adverse environmental effects that cannot be avoided should the action be pursued;

3. Alternative to the proposed action;

4. The relationship between local, short-term uses of the environment and the maintenance and enhancement of long-term productivity;

5. Irreversible or irretrievable commitments of resources that would be involved in the proposed action should it be implemented.

Such a statement, once prepared, was to be circulated among government agencies and other public venues.

NEPA was unique among environmental and conservation legislation in several ways:

1. It was proactive rather than reactive.

2. It forced government agencies to consider the value of noneconomic resources, ensuring that conservation would be considered in evaluating the proposed action.

3. It introduced environmental assessment as a means to guide administrative decision-making.

Although sigificant and far-reaching, NEPA has shortcomings:

1. True shareholders are often not involved in the decision-making process.

2. This leads to frequent litigation.

3. This leads to administrative prudence in the development of EIS to make them “litigation-proof”.

4. This often makes leads to waste and distrust.

The Endangered Species Act

Has been called the “strongest and most comprehensive species conservation strategy” in the world.

Has certainly contributed to the persistence of many endangered species, and has even led to the complete recovery of some formerly endangered species.

However, more than 1,100 species remain listed, and seven listed species have actually become extinct after being listed.

Very powerful, and very controversial.

When first passed in 1966 as the Endangered Species Preservation Act, the act had little power.

Its immediate successor, 1969’s Endangered Species Conservation Act, wasn’t much better.

These somewhat toothless acts were rewritten in 1972 by Curtis Bohlen in ways that changed the conservation landscape.

The new law expanded the ESA to include all plant and animal species, not just vertebrates.

It legally defined a “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds in nature.”

Also created a new category for legal protection called “threatened species”, and even allowed the listing of species that were threatened only over a portion of their range.

The 1973 ESA also introduced the concept of “designated critical habitat” into environmental law.

The Act gives the Fish and Wildlife Service primary responsibility for identifying endangered and threatened species and proposing them for listing.

Actually listing, however, is typically accomplished through interagency consultation.

The Act defines an “endangered” species as one that is in danger of extinction throughout all or a significant portion of its range.

A “threatened” species is one that is likely to become endangered within the foreseeable future.

In management, the FWS must almost define “critical habitat” and develop a recovery plan.

The most famous legal challenge to the ESA began in 1978.

In Tennessee Valley Authority vs. Hill, the U.S. Supreme Court ruled that the Tellico Dam on the Little Tennessee River could not be completed because the dam would destroy the habitat of an endangered fish, the snail darter.

Ultimately, this was a blow to conservationists because of the congressional backlash against a law that many saw as too restrictive.

Congress amended the ESA to create a committee that could waive the law’s regulations under special economic conditions. Labeled the Endangered Species Committee, the group came to be known as “The God Squad.”

The committee initially upheld the darter’s protection; Congress responded by excluding the snail darter from protection under the ESA and construction on the dam continued.

Ultimately, snail darter populations were transplanted to other streams.

The process of designating critical habitat is the most frequent source of conflict between the federal government’s interest in protecting endangered species and the interests of private landowners.

Critics claim that the ESA’s biggest weakness is its punitive approach to dealing with landowners who violate the act’s provisions when endangered or threatened species are found on their property.

The threat of punishment often promotes landowner behavior that is harmful to the protected species.

Prairie pothole in South Dakota

Longleaf pine forest in Georgia

The red-cockaded woodpecker prefers longleaf pine habitats with minimal understory, which can only be maintained by recurrent fires.

During the mid-1900s, RCWs declined in abundance to fragmented populations with a total population of less than 15,000 birds.

Most of the birds’ historical habitat is on privately owned land. Many landowners, fearing federal regulation, manage their property in a way as to make it unattractive to RCWs.

The Problem of Global Cooperation

There are over 1,000 international legal instruments, most of them binding, that focus on environmental and conservation issues.

The development of international instruments in conservation have typically followed a four-step process:

1. Issue definition.

2. Fact finding

3. Creation of an international body or legislative regime to address the problem.

4. Consolidation and strengthening of the legislative regime.

Weiss and Jacobson (1999) developed a conceptual model of the success of a variety of international environmental agreements.

Some Major International Treaties Affecting Global Biodiversity Conservation

International Convention for the Regulation of Whaling - 1937

International Convention for the Protection of Birds - 1950

Convention on Wetlands of International Importance - 1971

Convention on International Trade in Endangered Species - 1973

United Nations Conference on Environment and Development - 1992

Case History: Tuna and Dolphin

In 1972, the U.S. passed the Marine Mammal Protection Act with broad, bipartisan support.

One of MMPAs mechanisms for the protection of marine mammals was to reduce “incidental kill or serious injury of marine mammals.”

The issue of incidental kill of dolphins by tuna fisherman had been developing since the 1950s.

When it became apparent that other countries were not following standards set by the MMPA, the U.S. was forced to respond.

Congress twice amended the MMPA to encourage adoption of similar standards on an international level.

In 1984, the MMPA was altered to require an embargo on tuna imports from any country whose commercial fleets killed more dolphins than U.S. fleets.

In 1988, Congress added additional requirements for all tuna-exporting nations attempting to market tuna in the U.S. The use of large-scale drift nets was prohibited, as was encircling marine mammals without direct evidence of the presence of tuna.

Case History: Shrimp and Sea Turtles

In 1989, the Congress added a provision to a public law that became known as the Sea Turtle Act.

This was motivated by concern over continuing declines in sea turtle populations and by studies implicating shrimp nets in sea turtle mortality.

The U.S. became one of the first nations to begin widespread use of the turtle excluder device (TED).

By the 1980s, TED technology had reached the point that, when devices were properly installed, 97% of sea turtles caught in shrimp nets could be released alive and unharmed without loss of shrimp.

Earlier legislation had already required the use of TEDs in all shrimp trawlers operating in the Gulf of Mexico and in the Atlantic Ocean off of the southeastern U.S.

The Sea Turtle Act prohibited fish imports from any nation that failed to adopt sea turtle conservation measures comparable to those in place in the U.S.

Initially, such sanctions applied only to Caribbean nations. They rapidly complied.

However, the largest shrimp importers to the U.S. were Asian nations that did not use TEDs. As a result, the prohibitions of the Sea Turtle Act were largely symbolic and did little to conserve sea turtles on a global scale.

At the time, the U.S. was engaged in negotations to ratify the General Agreement on Tariffs and Free Trade (GATT) and did not want to create tension with Asian nations over sea turtles.

The delay in enforcement led to a federal lawsuit by Earth Island Institute demanding that the provisons of the Sea Turtle Act be enforced uniformly.

After a series of appeals, the Earth Island Institute won their case, forcing the U.S. to ban imports from nations that had not complied with the Sea Turtle Act.