Transcript Document

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,
and Liability Act (CERCLA)
- 1980
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,
Conservation, and Liability Act
-
1980
• 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.
Longleaf pine forest in Georgia
The threat of punishment often
promotes landowner behavior that
is harmful to the protected
species.
Prairie pothole in South Dakota
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 tunaexporting 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.