Biodiversity and the Law.

The earths biodiversity is rapidly disappearing. This environmental crisis is the subject of Biodiversity and the Law, a collection of writings edited by William J. Snape III. In this book review, Richard Blaustein addresses some of the issues raised by the books nineteen authors. He argues that the law, if properly applied, could potentially stop the biodiversity "extinction" and protect the earth's biodiversity for future generations.

In his widely read book, The Diversity of Life, Edward O. Wilson, the acclaimed Harvard Professor and dean of the biological field of biodiversity, writes, "The sixth great extinction spasm of geological time is upon us, grace of mankind."(1) Wilson is referring to the diminishment of the earth's biodiversity -- "the sum of all genes, species, habitat, and natural processes that constitute the very essence of existence on earth."(2) Thanks in good part to Wilson and his colleagues in conservation science, the biodiversity crisis has emerged as one of the paramount concerns of many environmental advocates, policy makers, doctors, business people, and others who wish to vouchsafe the natural resource, medicinal, aesthetic, and other benefits of biodiversity. Because the health of the world's precious biodiversity has reached a state of urgency beyond that which private advocacy groups and charities can remedy, Wilson asserts that biodiversity protection should be bound into the legal canon."(3)

The possibilities for the legal canon's protection of biodiversity are the focus of the Defenders of Wildlife book, Biodiversity and the Law. With entries from nineteen authors, Biodiversity and the Law's editor, William J. Snape III, has compiled an integrated text that discusses the law,s potential for protecting and restoring biodiversity, both in the United States and abroad. With discussions of legislation such as the Endangered Species Act (ESA)(4) and the National Environmental Policy Act (NEPA),(5) legal doctrines including the common law's public trust, the international legal instrument of the Convention on Biological Diversity,(6) and trade and species protection agreements that bear on biodiversity, Biodiversity and the Law is a stimulating book that even nonenvironmental lawyers will find interesting and educational.

Many of Biodiversity and the Law,s essays point to the growing sophistication of conservation science as a means of affording law the opportunity to incorporate biodiversity concerns into regulations, new legislation, and court decisions. "[C]onservation biology," Snape writes, "is taking its first steps toward a comprehension of biodiversity. It is able to identify species that are indicators or keystones for an entire ecosystem. It understands many ecological processes and their functional roles. It can offer a crude measure for the overall health of the earth."(7) The book often argues that the maturation of conservation science should be used to remedy the government's historic reluctance to revise or implement environmental regulations whose scope encompasses biodiversity considerations.

With regard to court decisions, the ascendant reputation and dependability of conservation science may lead judges, who use an arbitrary and capricious standard when reviewing an administrator,s action, to be less deferential to the regulator's scientific judgment. Specifically, Snape and two essay authors point to recent case law in Wisconsin(8) in which conservation advocates challenged the government,s interpretation of the articulated diversity,, provisions of the National Forest Management Act (NFMA).(9) Although the judges deferred to the Forest Service's interpretation, these authors believe that conservationists will be more successful in the future as judges become more educated regarding the scientific principles of biodiversity through continued court challenges and increased public discussion.

Prominent among the U.S. laws that protect biodiversity is the ESA. Biodiversity and the Law dedicates one of its four sections to the ESA's species and habitat protections and the resulting clash with economic interests. In certain instances, the ESA permits the government to interfere with the use of private property, causing the ESA to be viewed as a prime example of the clash of economic activity and environmental ideals. The revered and recently deceased director of the U.S. Fish and Wildlife Service, Mollie Beattie, writes in her chapter,

the ESA has been driven by petitions to list individual species, and it has

become for many a tool of choice in dictating the future of land use. In other

words, if you can find a listed species, or species that may need listing, you can

stop development. In many regards this has given a good law a bad name.(10)

Beattie and the other ESA writers argue that a new emphasis of ecosystem maintenance, instead of the ESA's historic focus on individual species, would better protect species and would also lessen the conflicts with development and property interests.(11)

Jason Patlis contributes to Biodiversity and the Law with a chapter on ecosystems.(12) Paths defines ecosystems as "the interaction of living organisms to the point where they have developed self-integrating and self-organizing processes."(13) Paths argues that an ecosystem approach to species protection, with its larger circumference of dynamic natural areas, could spawn more predictable applications of the ESA for developers and property holders.(14) Recent U.S. Supreme Court decisions have given even more impetus to the ecosystem approach. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(15) the Court upheld the ESA's habitat protection application.(16) Thus, jurisprudence in the future can be expected to support and uphold ecosystem approaches to biodiversity protection as designated by Beattie, Patlis, and others.

A broad paradigm shift to ecosystem protection, although at once more flexible and predictable, nevertheless would have economic costs. A successful national ecosystem management policy would entail large scale conservation sites, a restoration program, genetic resource evaluation, and terrestrial connection of secured habitats, incurring expenses to both the government and the private sector. One very interesting proposal to alleviate and ultimately offset these costs is the habitat transaction method, discussed by market-oriented environmental consultant Todd Olson in his chapter.(17) Olson states: "[T]he common enemy of conservationists and landowners is an economic system that fails to take into account the social value of biodiversity -- and even creates incentives to destroy biodiversity."(18) Olson cites the example of the California Central Valley farmers who disk their inactive lands as an insurance policy against having the value of farmland taken away or diminished by the federal Endangered Species Act."(19) To correct this "perverse"(20) economic situation, Olson advocates a market-based conservation approach that attaches a transactional value to diversity. After first broadly measuring the defined areas of biodiversity in the context of an overall conservation plan, land-owners would then receive credits if they conserve or restore habitat, while "a landowner proposing a project that would cause a loss of conservation value must offer a number of credits based on the loss of conservation value that would result from development."(21) Biodiversity protection would follow the trend of market@based environmental protection, and would most particularly resemble the successful acid rain allowance trading system.(22) Another chapter on the habitat conservation plan similarly offers an interactive management approach to the ESA that aims to reconcile species protection with economic interests.(23)

Lawyers may find Part IV, entitled "Who Owns What? A Public Trust for Biodiversity," to be the most stimulating section of Biodiversity and the Law. Legal education and practice most often focuses on the current state of the law and how it can be adapted to new conditions and demands (that is, the common-law tradition). In this section, common-law doctrine, NEPA, and other environmental laws are presented as having the potential to alleviate the biodiversity crisis. The discussion on the common law public trust doctrine applied to biodiversity is especially interesting. Navigable water, water sources, fisheries, recreation sites, and scientific study(24) are often protected by the common-law doctrine of the "public trust," which has antecedents in Roman law.(25) A public trust on biodiversity would have the same workings as a trust in common law where there is a "fiduciary relationship between a trustee and a beneficiary with regard to certain property, which is called the res."(26) In a public trust for biodiversity the natural environment's biodiversity res has a beneficiary in the people and a trustee in the government or the government's designee. With a sophisticated discussion of U.S. case law that has applied the public trust doctrine and nullified instances of private appropriation of natural resources, Biodiversity and the Law makes a strong case for the public trust doctrine's "direct and perhaps revolutionary relevance to biodiversity."(27)

In addition to its discussions on domestic laws, Biodiversity and the Law has a separate section on international law and environmental trade agreements that bear on global biodiversity. Specifically, the Convention on Biodiversity treaty, which was opened for signature at the 1992 Rio Earth Summit, receives thorough treatment in both the international and the public trust sections of the book. The Convention on Biodiversity (CBD) is depicted by Snape as "our planet's seminal biodiversity blueprint."(28) The treaty, which was signed by President Clinton but has not been ratified in the Senate,(29) has specific directives for biodiversity protection. These directives include the establishment of "a system of protected areas where special measures need to be taken to conserve biological diversity,"(30) intellectual property protections for indigenous peoples, and the exchange of genetic and technological resources and methods that stem from or bear on biodiversity. Notwithstanding these provisions, Snape points out that the

CBD is not meant to be the only accord protecting biodiversity .... To be

successful the CBD will need to rely on multiple instruments and policies

aimed at biodiversity protection. In this regard, the CBD is not only the

culmination of over a century of international conservation efforts, but also the

nerve center of all present biodiversity initiatives.(31)

If the Senate eventually ratifies the treaty, the CBD could become the unifying power that reorients and creates laws and regulations that successfully protect biodiversity.

Biodiversity and the Law also has informative discussions on the degrading effects on natural habitats by human@introduced exotic species,(32) the possibilities and current deficiencies in the relationship of trade agreements and the environment,(33) and the biodiversity of the world's oceans.(34) The book ends with an epilogue written by Rodger Schlickeisen, president of Defenders of Wildlife, in which he calls for a constitutional amendment to protect biodiversity.(35) Schlickeisen appears more pessimistic than the other writers with regard to the existing law's ability to protect biodiversity. Surveying these prospects, Schlickeisen writes, Relying on statutes alone is insufficient because normal legislative processes are systematically biased in favor of current benefits as opposed to the long-term future. Common law ... falls far short of addressing the comprehensive need for protecting species and habitat. As for the United States Constitution, as currently written and interpreted, it overwhelmingly favors other values, especially private property rights.(36)

A well-crafted constitutional amendment, which Schlickeisen provides in draft form, would best protect biodiversity by guaranteeing citizens the right to sue the government to protect biodiversity, shift the overemphasis on private property to the public welfare, and prompt the nation to embrace an "ecological morality to complement its social morality,"(37) as well as preserve the nation's biodiversity for future generations.

Although Schlickeisen,s passionate advocacy for a biodiversity public ethic is admirable and does at times impress, his "Argument for a Constitutional Amendment to Protect Living Nature, is ultimately not compelling because of the arguments and proposals put forth by the book's other authors. Furthermore, as the disparate advocates for the Equal Rights Amendment and the balanced budget amendment can attest, amending the U.S. Constitution is an arduous pursuit. The pursuit, even as it fails, can lead to enhanced public support of an issue, but it can also backfire on an issue and its supporters. If a biodiversity constitutional amendment were to be adopted, the federal courts would have to spend much time interpreting the scope and application of the amendment, notwithstanding the amendment's shift of Supreme Court jurisprudence in favor of public rather than private property rights. The biodiversity crisis could not wait for this clarifying jurisprudence. The other measures advocated in Biodiversity and the Law would protect biodiversity with greater speed, especially the ratification of the Convention on Biodiversity, which would be superseded only by the existing U.S. Constitution as the supreme law of the land.

Biodiversity and the Law makes a strong case for the law's potential to protect biodiversity. The book is also commendable for its educational and stimulating writings, proposals, and editorial overviews. Most impressively, Biodiversity and the Law makes a valuable contribution to the promulgation of a public environmental ethic that, in Wilson's words, "will aim to preserve not only the health and freedom of our species, but access to the world in which the human spirit was born."(38) While reading Biodiversity and the Law, many lawyers will reflect upon biodiversity as the place where law can combine passion and reason for the good of present and future generations.

(1) Edward O. Wilson, The Diversity of Life 343 (1992).

(2) William J. Snape, III, Introduction to Biodiversity and the Law at xix (William J. Snape III ed., 1996).

(3) Wilson, supra note, 1, at 342.

(4) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(5) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1994).

(6) Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818.

(7) Snape, supra note 2, at xxi.

(8) See Sierra Club v. Marita, 46 F.3d 606, 607 (7th Cir. 1995) (Sierra Club sought to enjoin timber harvesting, road construction, and the creation of wildlife openings at two national parks, arguing that the Forest Service violated the National Forest Management Act in developing forest management plans by failing to consider biodiversity).

(9) National Forest Management Act of 1976, 16 U.S.C. [subsections] 1600-1614 (1994).

(10) Mollie Beattie, Biodiversity Policy and Ecosystem Management, in Biodiversity and the Law, supra note 2, at 11, 13.

(11) Id. at 13-14.

(12) Jason Patlis, Biodiversity, Ecosystems, and Endangered Species, in Biodiversity and the Law, supra note 2, at 43, 43-58.

(13) Id. at 44.

(14) Id. at 45.

(15) 115 S. Ct. 2407 (1995).

(16) Id. at 2414-15. The ESA sought to protect species by prohibiting the "taking" of threatened or endangered species. 16 U.S.C. [sections] 1538(a)(1) (1994). "Taking" a species includes acts that "harm" a protected species. Id. [sections] 1532(19). The Fish & Wildlife Service definition, upheld in Sweet Home, defined "harm" to include significant habitat modification or degradation that actually kills or injures wildlife by significantly impairing essential behavioral patterns. 50 C.F.R. [sections] 17.3 (1995).

(17) Todd Olson, Biodiversity and Private Property: Conflict or Opportunity?, in Biodiversity and the Law, supra note 2, at 67, 67-80.

(18) Id. at 69.

(19) Id.

(20) Id.

(21) Id. at 72.

(22) See generally Larry B. Parker et al., Clean Air Act Allowance Trading, 21 Envtl. L. 2021 (1991). Title IV of the Clean Air Act grants pollution allowances to electric utilities to use as they choose; they may either sell, trade, or save these allowances, depending on what will be most cost-effective for the individual utility. Clean Air Act of 1970, 42 U.S.C. [sections] 7651 (1994).

(23) Lindell L. Marsh, Conservation Planning Under the SEA: A New Paradigm, in Biodiversity and the Law, supra note 2, at 59, 59-66.

(24) Ralph W. Johnson & William C. Galloway, Can the Public Trust Doctrine Prevent Extinctions?, in Biodiversity and the Law, supra note 2, at 157, 161.

(25) Id. at 158.

(26) William J. Snape III, Who Owns What? A Public Trust for Biodiversity, in Biodiversity and the Law, supra note 2, at 145, 145.

(27) Id.

(28) William J. Snape III, International Protection: Beyond Human Boundaries, in Biodiversity and the Law, supra note 2, 81, 81.

(29) Id. at 81-82.

(30) Convention on Biological Diversity, supra note 6, art. 8(a).

(31) Snape, supra note 28, at 84.

(32) Peter Jenkins, Harmful Exotics in the United States, in Biodiversity and the Law, supra note 2, at 105, 105-19.

(33) Leesteffy Jenkins, Using Trade Measures to Protect Biodiversity, in Biodiversity and the Law, supra note 2, at 93, 93-1-4.

(34) Suzanne Iudicello, Protecting Global Marine Biodiversity, in Biodiversity and the Law, supra note 2, at 120, 120-30.

(35) Rodger Schlickeisen, The Argument for a Constitutional Amendment to Protect Living Nature, in Biodiversity and the Law, supra note 2, at 221, 221.

(36) Id.

(37) Id. at 222.

(38) Wilson, supra note, 1, at 351.