32 ELR 10529 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Biodiversity Conservation in the United States: A Case Study in Incompleteness and Indirection

[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in that book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

The author is a Professor of Law at Chicago-Kent College of Law. He received his A.B. 1962, LL.B. 1965 from Stanford University.

[32 ELR 10529]

What is the United States' obligation to conserve biodiversity? What is the relationship between biodiversity conservation and sustainable development? At both international and national levels, biodiversity conservation has recently emerged as a construct to unify a number of disparate, older environment objectives such as wildlife conservation, the preservation of endangered species,¹ and the dedication of land for heritage purposes such as parks, nature reserves, wildlife refuges and other similar categories into a single overarching legal category. At the same time, the paradigm of sustainable development has emerged as the ur standard for the integration of economic development and environmental protection in both developed and developing countries.² In brief, sustainable development seeks to encourage resource exploitation and consumption practices that are consistent with long-term environmental protection objectives. Sustainable biodiversity conservation practices include preserving representative examples of biodiversity for future generations, using undeveloped biodiversity as a valuable resource for nonintrusive bioprospecting or ecotourism and exploiting and using land and natural resources in more environmentally sensitive ways.

Since the Rio Summit (the Conference on Environment and Development) in 1992, many biodiversity conservation initiatives have been initiated in the United States by all levels of government and private parties. But, they are often ad hoc efforts to solve a single example of past environmental degradation, such as the restoration of sheet flows to the Everglades, or efforts to avoid a worst-case Endangered Species Act (ESA)³ enforcement scenario. Biodiversity conservation is often seen as a secondary byproduct rather than the primary objective of these activities. At the present time, U.S. law only imposes a duty on public and private parties to prevent the extinction of a limited number of protected endangered or threatened species⁴; there is no general public or private duty to conserve biodiversity qua biodiversity. Federal agencies generally have the discretion to conserve biodiversity, although this authority can generally be traded off against more traditional exploitation objectives and is often contested. In the past 10 years, the U.S. government has tried to manage large blocks of public lands on an ecosystem basis and has participated in collaborative stakeholder ecosystem basis restoration experiments. These efforts are extremely fragile because they lack a firm legal foundation, they can be modified in response to changed political conditions, and no clear performance standards exist to measure their success should they endure.

The Clinton Administration took the concept of sustainable development seriously,⁵ but it did not (and could not) begin the hard task of creating the legal structure necessary to create incentives and sanctions fostering sustainability. In its first year in office, the Bush Administration has shifted from overt to covert disdain for international and domestic environmental law and the agreement entered into at the Rio Summit. Thus, the future of many of the biodiversity-related conservation initiatives implemented since 1992 is in doubt.

To implement the objectives agreed upon at the Rio Summit, the United States should take three immediate steps. First, it should ratify the Convention on Biological Diversity. Second, the legal mandates of the major federal land [32 ELR 10530] management and regulatory agencies should be revised to require them to conserve biodiversity to the maximum extent possible consistent with due process and the sustainable use of natural resources. Third, the United State should create a Biological Survey, equal to the U.S. Geological Survey, to inventory the nation's biodiversity heritage and to provide the necessary scientific support for the establishment of biodiversity indices and conservation performance standards.⁶

The International Duty to Conserve Biodiversity

Hard or Soft Law

The question of the U.S. legal duty to conserve biodiversity is an appropriate one because biodiversity conservation is an international legal obligation, and thus there is the potential to integrate a new legal standard into national statutes, administrative regulations, and voluntary agreements which relate to this objective. Biodiversity conservation is a new, separate, international legal obligation which extends the concept of individual species protection. The 1992 Convention on Biological Diversity⁷ (the Convention) has now entered into force. However, the United States has only signed it; it has not ratified the Convention. Thus, the United States is not formally bound by it. However, Article 18 of the Vienna Convention on the Law of Treaties⁸ provides that a state which has signed a treaty "is obligated to refrain from acts which would defeat the object and purpose of the treaty." In addition to this general duty, the United Stateshas agreed to Agenda 21 approved by the United Nations (U.N.) Conference on Environment and Development at the 1992 summit.⁹ Chapter 15 of Agenda 21 enjoins states to "develop national strategies for the conservation of biological diversity and the sustainable use of biological resources."¹⁰ These obligations include the development of new conservation strategies, biodiversity inventories, and "the promotion of sustainable production systems, such as traditional methods of agriculture, agroforestry, forestry, range and wildlife management, which use or maintain biodiversity."¹¹

The Convention reflects a careful, often inconsistent, balance between the interests of northern countries to dedicate more resources and land areas to biodiversity conservation, especially habitat conservation, and the interests of the less developed, southern countries to exploit commercially their potential biodiversity and other resources to increase the living standards of their citizens. Almost all positive law is the product of compromise, but compromise in the context of international lawmaking is a special problem because lowest common denominator standards characterize much international treaty making.¹² Happily, the Convention's balance raises the conservation duties above the lowest common denominator by introducing a new international norm—the conservation of biodiversity—which no nations yet fully meet. As one commentator has observed, it "codifies a line of soft law and international custom to create hard law in a treaty."¹³

The Convention is hard law, but many developed countries such as the United States are at best only in formal compliance with it. As is often the case with international environmental agreements, the Convention's duties are based on the previously adopted norms of developed countries. Developing countries are less likely to have adopted these norms and practices and thus need to do more to bring themselves into compliance with the Convention. This said, all nations face the continuing loss of biodiversity and to take immediate steps to moderate the rate of loss. Thus, the Convention is a major legal innovation because it provides a legal foundation that did not previously exist in the United States and in most other countries of the world to reinforce the use of biodiversity as a legal standard.

Biodiversity, compared to pollution control or risk assessment, is not a traditional environmental law construct. Biodiversity losses are not pollution as the term has been conventionally defined and the adverse impacts such as the loss of a species or of a dense, varied ecosystem do not fit the typical idea of damage either in domestic or international law. Thus, the possibility of state-to-state enforcement of the customary international obligation not to cause environmental damage, weak as it is in the pollution field,¹⁴ will be virtually nonexistent in the biodiversity area. The 1999 Indonesian Forest fires are a case in point; no action was brought for the transboundary pollution that they caused.¹⁵ Indonesia's biodiversity loses were effectively damnum absuque injuria (legally irrelevant loses). One could contest this narrow reading and argue that the entire international community is equally damaged by national failures to conserve [32 ELR 10531] biodiversity. Biodiversity losses could be analogized to pollution such as the emission of greenhouse gases, which clearly harm the entire international community. Under this reading, the Convention has some minimal direct relevance for the United States because it defines our responsibility under customary international law not to contribute to the global loss of biodiversity, given its size and biodiversity resources. However, at the present time, this argument is speculative in the extreme.

The Convention's ratification of the unification of a number of disparate objectives into a single overarching construct has both advantages and disadvantages for the successful implementation of the ideas that underlie the construct. The primary disadvantage is that all manners of laws can count for treaty compliance so the Convention imposes minimal duties on developed nations to conform their laws to it. The primary advantage is that the construct does provide a new standard, crude as it is, to measure the consistency of a number of uncoordinated U.S. laws and practices with the potential new duties contained in the Convention. Therefore, at a minimum, it underscores the need for a more coordinated and vigorous national biodiversity conservation strategy.

The biodiversity construct has attracted widespread political and popular support as a legal organizing principle even if the idea's objectives are imperfectly understood. The word "biodiversity," which WordPerfect(R)'s version 8.0's spell check feature still rejects, was coined by proponents of ecosystem conservation and restoration for its simplicity and emotive power to help build public support not simply to save individual species from extinction but to conserve the planetary web of life and to ensure that ecosystems do not suffer an irreparable loss of function. Therefore, the term has a dual surface appeal. It is a goal with a strong ethical appeal¹⁶ but one which seems to be supported by hard science. Thus, the popular concept of the term can be used to establish the legitimacy of the broader goal. The more scientific an environmental law appears, the more legitimate it is, even if the science is not fully operational, as is the case with biodiversity conservation.¹⁷

The ability to express a complex and uncertain idea in a single, widely acceptable word played a large factor in the decision of the delegates to the 1992 Rio Summit to adopt the Convention. There are very few advocates of bio-exclusivity. However, it is important to recognize that the concept has important limitations as a legal construct because the term was chosen for its simplicity and innate appeal rather than its established scientific merits and relation to existing legal principles.¹⁸ Coining an apt word alone does not, of course, justify biodiversity conservation as a social goal, but it is a crucial first step. The case for biodiversity conservation is hard because civilization has progressed for centuries by adopting the opposite policy—biodiversity destruction.¹⁹ Biodiversity conservation is not self-defining and its implementation requires heroic efforts by scientists to help decisionmakers identify biodiversity indices so they can make the necessary informed value judgments about the long-term worth of conserving species and ecosystems as well as the untested, intensive management techniques necessary to accomplish these objectives. The ultimate case for biodiversity conservation is a mixture of ethics, self-interest, and caution. As Edith Brown Weiss has argued, we owe a duty to future generations to conserve this patrimony.²⁰ Less altruistic justifications include the immediate loss increasingly valuable ecosystem services, the foreclosure of valuable discoveries, and the availability of irreplaceable life-support systems.

Three Sources of International Duties to Conserve Biodiversity

This section discusses three direct levels of international law that apply or potentially apply to U.S. laws relating to biodiversity conservation. These levels are a mix of hard and "soft" or nonbinding international law. However, the distinction between hard and soft law can be misleading because nonbinding standards and concepts can both help inform the debate about appropriate action levels and may ultimately be incorporated into binding domestic legal instruments. The first level is the 1992 Convention and Agenda 21. As previously mentioned, the United States is not formally bound by the Convention, but it is hard law that sets out the minimum elements of a biodiversity conservation regime which can be adopted as a nonbinding domestic standard. Agenda 21 reinforces this use of the Convention. The second level is the recognition of general obligations erga omnes that can be found in existing international environmental law and in the specific legal principles which were directly incorporated into the Convention. The most important general obligation for the United States is the duty to apply the emerging precautionary principle to conservation decisions.²¹ Although much contested and underdeveloped, the core idea of the precautionary principle—a country need not wait for conclusive evidence of environmental damage or the impairment of public health before regulating an activity that poses credible risks of substantial future [32 ELR 10532] damage—must be an essential component of any biodiversity protection strategy.

The third level is speculative because it posits that there are additional, more radical new principles of international law that logically follow from the treaty. The most important one is the claim that a nation with world heritage biodiversity resources owes corresponding conservation obligations erga omnes to the entire international community regardless of a specific treaty obligation. This argument will be vigorously contested because it conflicts with the foundational international law principle of absolute territorial sovereignty. It was clearly rejected by the parties to the Convention on both legal and political grounds. Biodiversity resources are neither true commons such as the oceans nor unallocated commons such as Antarctica. Nonetheless, they could, however, be classified as the common heritage of mankind with corresponding duties erga omnes, but this concept has not received wide acceptance in the international community.²² In addition to these specific obligations, biodiversity conservation is part of the larger international protect to convert resource use from unsustainable to unsustainable development practices.

The 1992 Convention on Biological Diversity and Sustainable Development

The Convention's use of the word "conservation" strikes a balance between the sustainable exploitation and preservation of biodiversity resources. Thus, it is best understood as a minimal standard against which a country can measure its biodiversity conservation strategies. It has no direct enforcement mechanism, and it could be read as a mere aspirational statement of the desirability of protecting biodiversity. This is, however, too narrow a reading of the document. On one level, the Convention does not change the law of most developed nations because the obligations track existing resource conservation laws and practices, and it does not ultimately draw from an extensive preexisting body of international law. It is formally framed as a logical extension of the principle of state responsibility for environmental degradation, but, as previously mentioned, biodiversity conservation does not fit into the conventional state responsibility paradigm. A state's failures to conserve biodiversity could, however, be framed either as a pollution prevention or sustainable development problem. Compared to transboundary pollution, such as acid deposition, because the latter are a more promising approach, because the immediate impacts of inadequate conservation will be confined to the borders of the state. The primary geographic scope of the Convention is the territory of individual nations, although two articles modestly extend its scope. Article 2 repeats Principal 21 of the Stockholm Declaration²³ that state liability extends to national activities that cause damage to another state or areas beyond the limits of national jurisdiction. Article 3 reinforces this by imposing state responsibility for processes and activities "regardless where the effects occur."

The Convention can equally be framed as a logical extension of the principle of sustainable development adopted at the 1992 summit. In this context, biodiversity protection can be seen not as a paramount or transcendent national and international objective but as a strategy to achieve sustainable development. This view is politically attractive from a North-South perspective, the linkage between the two concepts has more positive implications for developing countries than it does for developed ones. But, the linking could ultimately weaken the force of the duty to conserve biodiversity by forcing trade offs between exploitation and conservation. Nonetheless, for the foreseeable future biodiversity protection must therefore take place within the potentially inconsistent framework of the evolving concept of sustainable development.²⁴ Sustainable development was adopted as the ur standard of modern international environmental law to bridge the North-South or rich-poor divide, as illustrated by Principle 3 adopted in 1992, and remains [32 ELR 10533] the foundation of the international environmental protection dialogue.

Justifiable alarm at the rate of biodiversity loss in developing countries, especially in the tropical rainforest belt of Africa, Asia, and South America, should not divert attention from the fact that sustainable development has important implications for developed as well as developing countries. The reality is that most development remains unsustainable rather than sustainable and biodiversity loss is a continuing worldwide crisis.²⁵ Effective implementation of sustainable development requires that all governance institutions, representative bodies, the laws that assign the privileges and conditions for resource use, and the agencies that implement them be restructured to encourage more "balanced" extraction, production, and consumption patterns. The implications for biodiversity conservation in the United States are substantial. In contrast to existing environmental regulation, sustainable development challenges the fundamental idea that individuals may determine the amount of resource consumption subject to the caveat that they internalize some portion of the social costs of consumption. The external cost minimization justification for environmental regulation contemplates the possibility of some resource use reduction as the gap between private and social cost is narrowed, but this is not a primary objective of environmental protection. In contrast, sustainable development seeks to identify the root causes of behaviors that cause environmental degradation and to change them substantially. It seeks to modify rather than mitigate these because it tolerates less environmental destruction as the price for economic development and prosperity. Thus, the impact on biodiversity should become one of the indices of sustainable development and an important constraint of a wide range of large and small resource use and consumption decisions.

The Primary State Duties Under the Convention and Agenda 21

A state's primary Convention obligation is to develop national strategies, plans, or programs "for the conservation and sustainable use biological resources or adapt this purpose to existing strategies, plans or programmes."²⁶ Basically, once a reserve system is in place, the Convention leaves all subsequent management choices to individual nation-states. This is consistent with orthodox international law which makes the nation-state the effective control unit. Thus, at the present time the United States has the sole discretion to decide how to define and conserve biodiversity because it is a resource under its sovereign control.

The most important elements of a state biodiversity conservation program relevant to internal U.S. initiatives under both the Convention and Agenda 21 are: (1) the inventory and monitoring of important biodiversity resources, especially those in need of "urgent conservation measures,"²⁷ (2) the creation of in situ biodiversity reserves, (3) the creation of ex situ conservation measures such as seed banks and zoos, (4) the establishment of appropriate environmental impact assessment procedures for activities "that are likely to have significant adverse impacts on biological diversity with a view toward avoiding or minimizing such effects . . .,"²⁸ and (5) the creation of conditions "to facilitate access to genetic resources for environmentally sound uses by other contracting Parties and not to impose restrictions that run counter to the objectives of the Convention."²⁹

The creation of in situ biodiversity reserves is the primary or core Convention duty. Articles 8 and 9 express a preference for in situ over ex situ conservation. Article 8 mandates "as far as possible and appropriate" that each country establish a system of biodiversity reserves, develop guidelines for the selection and management of the reserves, manage the biological resources important for the conservation of biodiversity both with the reserve and in areas outside as well. Other sections spell out the implications of in situ protection, primarily the maintenance of viable populations within their natural habitats and the need to rehabilitate and restore degraded ecosystems.³⁰ Ecosystem restoration has emerged as a major U.S. biodiversity protection strategy and reflects the reality that there is little "pure" or undisturbed nature left to preserve.

Ex situ conservation such as zoos, captive breeding stations, laboratories, seed banks, biological gardens, and perhaps the cloning of endangered species³¹ is a permitted, but subordinate strategy. The leading "biodiversity" biologist, Edward O. Wilson, argues that "ex situ methods will save a few species otherwise beyond hope, but the light and way for the world's biodiversity is the preservation of natural ecosystems."³² The subordinate status is reflected in Article's 9 duties, which emphasize that ex situ activities should be used to support in situ conservation when and wherever possible. For example, Article 9(C) requires a party to adopt measures for the recovery and rehabilitation of endangered species for their reintroduction into the wild.³³

The remainder of this Article concentrates on the in situ conservation regimes currently in place in the United States and the environmental impact assessment duties imposed on activities that threaten to degrade biodiversity. Before these efforts are surveyed, it is necessary to survey the science of biodiversity conservation. Every aspect of conservation requires the application of scientific theories and data. Biodiversity conservation is impossible without adequate scientific support from public and private sources to measure and monitor conservation regimes.

[32 ELR 10534]

The Evolving Science of Biodiversity Measurement and Conservation

Biodiversity has a strong scientific component because scientists have shaped the conservation dialogue³⁴ by alerting society to the dangers of biodiversity loss, but the science is a work in progress and poses many challenges for those seeking to incorporate the concept into existing legal regimes. We are still a long way from having the scientific criteria that can be used to provide an operational definition of the concept and to assess the effectiveness of the full range of biodiversity conservation activities. The problems start with the definition of biodiversity. Scientists define biodiversity roughly as the natural variety and variability among living organisms, the ecological complexes in which they occur and the way in which these organisms interact with each other and the physical environment. However, the definition masks both the newness of concept, its lack of established scientific pedigree, and the number of implicit value judgments implicit in its definition. Biodiversity is not a phenomenon that can be consistently and uniformly measured such as radiation levels or ambient air pollution standards, but rather is a kaleidoscopic concept that must be applied to specific landscapes and ecosystems.³⁵

The evolution of the term "wetland," the conservation of which is an important subset of modern biodiversity protection, is instructive. The term has undergone a similar evolution from an abstract construct with no established scientific or legal definition to an operational legal-scientific one.³⁶ In the 1950s, "wetlands" began to be used as a term to describe a number of land forms such as swamps, bogs, and prairie potholes that suddenly fell within the joint jurisdiction of the U.S. Army Corps of Engineers and the federal Environmental Protection Agency (EPA) after the passage of the Clean Water Act of 1972.³⁷ These areas were eventually unified by the rough idea that they contain water-dependent vegetation and hydric soils, but the term was not widely used within the scientific community. Thus, there was no established legal definition that courts and administrators could use to separate dry land from "waters of the United States," the technical, legal term that encompassed wetlands. But, the need to delineate wetlands and establish restoration standards led to a new applied science. There is now a science of wetlands which studies how to identify wetlands in the landscape, how best to protect them, and how to "construct" and maintain new ones.³⁸

Biodiversity is undergoing a similar scientific and legal evolution. Scientists have identified four levels of protection, all of which have important legal implications. Biodiversity conventionally refers to four distinct ascending levels of diversity: (1) generic diversity, (2) species diversity, (3) community diversity, and (4) ecosystem diversity.³⁹ These components must be measured on both large and small scales. Biodiversity must be measured at the global, national, and regional level. Science is developing a set of measures for biodiversity on both small and large scales that can be used to provide information about the status of existing trends and to measure progress of protection goals,⁴⁰ but this process is very much a work in progress. The basic measures are:

1. Percentage of Species Richness. This measure looks at factors such as taxonomic richness, primarily plants and vertebrates.

2. Species at Risk. This measure examines the absolute number as well as the percentage of species threatened with extinction or extirpation and the percentage of species at risk from habitat loss and other stresses. It also can include indices of the range of risks that the target species are facing. For example, "biodiversity hot spots" can be identified based on the percentage of endemic species in relation to the land area available to sustain them.

3. Protection Ratios. This measure seeks to inventory the effectiveness of existing land dedications for habitat protection of threatened and endemic species and other protection measures such as in situ conservation.

4. Community Diversity Indicators. This index includes estimates of the extent of area dominated by nondomesticated species and the patch size of these areas. It also includes the amount of the area within protected designations dominated by nondomestic vegetation, agricultural crops and livestock. The three are, of course, related as changes in community diversity, the habitat of stressed species, may lead to the risk of extinction and genetic alteration of the species. All three components have important legal consequences, but the last two require the dedication of large amounts of land to biodiversity conservation. The last two measures may have a large impact on domestic land use and environmental law because the achievement of these objectives requires the development of new landscape boundaries which collapse existing political and managerial boundaries.

The scientific definitions of biodiversity conservation make the implicit value judgment that conserving biodiversity in its four forms is worth the substantial costs that will be incurred. But, the need for development, sustainable or not, compels society to make hard choices about which biodiversity to conserve. These judgments will be a mix of ethics and economics informed by science. Biodiversity conservation is a science-informed value judgment.

Science can provide a variety of justifications for biodiversity conservation but, as its proponents recognize, they shade into ethical ones. Two lines of ethical justification have been offered for biodiversity conservation. The choice between them has substantial implications for how we define biodiversity and how we choose to protect it. The first [32 ELR 10535] justification posits that natural systems have extrinsic value. Post-modern ethics have been used to construct non-anthropocentric environmental ethics which extend rights to natural systems,⁴¹ but the project has not succeeded at the operational level. In the main, environmental insults remain limited to the human body and resources valued by humans because the problems of deciding which systems receive protection and at what level are insurmountable. The second justification is a non-intrinsic or anthropocentric one and posits that biodiversity has great value to humans. Value can lie in the valuable products that biodiversity provides, and one of the major problems in biodiversity conservation is to decide who owns the value information contained in natural systems.

In the United States, the recent focus has been on the identification and valuation of ecosystem services, such as a flood control and pollution abatement, which natural systems provide, but the federal government has allowed bioprospecting on public lands.⁴² Understanding these services "powerfully justifies why habitat preservation and biodiversity conservation are vital, though often overlooked, policy objectives."⁴³ In general the current focus on ecosystem services has two legal consequences for conservation: (1) biodiversity is associated with high performing systems and (2) proponents of conservation must shoulder some of the burden of establishing the existence and value of the claimed services. The focus also helps integrate biodiversity conservation and sustainable development, puts biological resources on an equal footing with conventional resources, and provides a powerful argument for their conservation. However, it may undervalue biodiversity resources that are not currently understood.

The general objective of biodiversity conservation is the prevention of the irreparable loss of diversity—not the preservation of all species and ecosystems—so hard judgments must ultimately be made about the comparative social value of different species and ecosystems. Science cannot fully answer all the questions involved in biodiversity conservation but it is essential to pose the right questions. At best, we can use the precautionary principle to make "conservative" conservation judgments consistent with scientific research. Thus, the science that we use in making these decisions can influence their content because scientific criteria must be used to measure the effectiveness of a biodiversity conservation strategy. Biodiversity conservation therefore requires a deep familiarity with important new developments in both theoretical and applied ecology.

The Convention's definition of biodiversity will inform the consistency standards that individual nations develop, and therefore any attempt at defining biodiversity and applying the definition to a specific place triggers a host of important scientific questions. The Convention uses the term "biological diversity" rather than the U.S. construct "biodiversity," although there is no difference between the two terms, and adopts a broad scientific-based definition generally consistent with the standard use of the term. Article 2 defines biological diversity as "the variability among living organisms from all sources, including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part"; this includes diversity within species, between species, and of ecosystems. According equal weight to terrestrial, marine and freshwater aquatic ecosystems does not add to the understanding of the term ecosystem as used by scientists, but the Convention makes it clear that all biodiversity support systems are of equal dignity and thus that national efforts should not prefer one to another.

The Convention does not take a position on the science that must be used to conserve biodiversity, although it does implicitly adopt key principles of modern ecology and conservation biology such as the disputed but much used concept of minimum viable population.⁴⁴ In general, questions of the appropriate science are best left to the implementation process. However, the science of biodiversity conservation is crucial both to the definition of the concept and measurement of the effectiveness of conservation strategies. Not all science is good biodiversity conservation science. Biodiversity conservation differs from many other environmental objectives because it is much more uncertain and therefore experimental. Compared to pollution abatement, there is a substantial time lag between the implementation of a conservation strategy and our ability to evaluate the success or failure of the strategy. We are still in the process of developing ecological indicators to measure the effectiveness of biodiversity conservation,⁴⁵ but we know enough to distinguish among levels of conservation effectiveness.

The science used to conserve biodiversity is problematic for lawyers because it challenges the long- held assumption that we can accomplish the objective by simply fencing off nature from human intervention. This is the primary lesson of the emergence of the nonequilibrium paradigm to supplant partially the older equilibrium paradigm, which posited that ecosystems reach a natural stage of climax and stasis. Since the latter was enshrined in environmental law in the 1960s, the complex, stochastic nonequilibrium one has become dominant.⁴⁶ In his path-breaking but still under-appreciated book, Prof. Daniel Botkin "deconstructed" the equilibrium paradigm as a misguided effort to match science to theological and scientific visions of a perfect universe.⁴⁷ His basic argument is that the images of nature which have influenced ecology are static when in fact the kinds of resource use problems society faces require a dynamic view of nature, one which starts from the premise that human action is one of the principal forces operating on ecosystems and that system disturbances are both predictable and random. Botkin presents an ecology based on more hard-edged probabilistic theories of nonequilibrium and rejects [32 ELR 10536] the vision of a balance of nature.⁴⁸ He also rejects the romantic idea that nature should be a place without humans and returns to the problem posed by Genesis, namely how should one manage the Garden of Eden after it has been invaded by humans.⁴⁹ Ecosystems must be seen as patches or collections of conditions that exist for finite periods of time. The accelerating interaction between humans and the natural environment makes it impossible to return to an ideal state of nature.⁵⁰ At best, ecosystems can be managed rather than restored or preserved, and management will be a series of calculated risky experiments. "Nature moves and changes and involves risks and uncertainties and . . . our own judgments of our actions must be made against this moving target."⁵¹ As a consequence, resource management generally is shifting from preservation as the dominant biodiversity strategy to preservation as integral component of ecosystem restoration and adaptive management regimes.⁵² At best, ecosystems can be managed rather than restored or preserved, and management will be a series of calculated risky experiments.⁵³

The science of biodiversity conservation follows directly from the new ecology. Adherents to the nonequilibrium paradigm have pioneered a sophisticated new regulatorily applied science, conservation biology, to protect ecosystems from human insults.⁵⁴ Conservation biology is based on island biology and seeks to understand relationships between species extinction and habitat fragmentation in order to develop models to map management minimum habitat reserves for endangered species. Island biology teaches that the larger and more connected the conserved habitat, the greater the chance for the survival of at-risk species. The importance of establishing the legitimacy of conservation biology is illustrated by a leading case, Sierra Club v. Marita,⁵⁵ which rejected its use. In preparing plans for the Nicolet and Chequamegon forests, which are second growth forests in Wisconsin, the U.S. Forest Service prepared a biodiversity inventory based on representative plant and animal communities but rejected a proposed biodiversity reserve system linked by corridors. The net effect of the Forest Service's conservation plan was to allow timber harvesting throughout the forests so long as the representative communities were maintained.⁵⁶ In fact, the Forest Service defended its plans in part because the reserve system would permit the forest to revert to its former but less diverse climax state. The Forest Service's decision was challenged by the Sierra Club on the ground that it did not have the discretion to ignore the conservation biology, asserting that diversity requires an understanding of the relationship between differing landscape patterns among various habitats.

The U.S. Court of Appeals for the Seventh Circuit held that the choice of scientific methodology would not be overturned unless it was clearly arbitrary.⁵⁷ This is a standard administrative law result. To reverse a science-based administrative decision, the challenger must either show that crucial and determinative scientific data was ignored or that the Forest Service completely refused to consider a relevant body of literature which contradicted its conclusions. Since the Forest Service considered a reserve design but rejected it in favor of an older but not "obsolete science," the Sierra Club could not fit their case within the traditional abuse of discretion paradigm. To overcome the traditional deference to administrative expertise, the Sierra Club tried to convince the court that nonconservation biology was "junk science" and could not be used by the Forest Service. It argued that the U.S. Supreme Court's "junk science" case⁵⁸ made the use of equilibrium rather than nonequilibrium ecology "unscrupulous." This novel use of "junk science" doctrine failed because it put the Sierra Club in the ironic position of trashing rather than defending the exercise of scientific judgment. Environmental nongovernmental organizations (NGOs) usually have to defend risk assessment decisions against the charge of junk science and rely on the argument that courts should not directly resolve legitimate disputes within the scientific community. This argument came back to haunt them, as the court rejected the claim that nonconservation biology was "junk science." Nonetheless, courts will increasingly have to decide what scientific evidence is necessary to promote effective conservation decisions. Marita is good administrative law but bad for biodiversity conservation.

U.S. Biodiversity Protection Regimes

The Marginal Legal Status of Biodiversity Conservation

Since 1992, the United States has undertaken a number of innovative biodiversity conservation initiatives. They are formally consistent with the Convention and Agenda 21, but they were not directly undertaken to implement them. Post-1992 U.S. biodiversity conservation was driven by two factors. First, the Clinton Administration's conservation initiatives were driven by a desire to blunt attacks on the ESA [32 ELR 10537] led by the Republican Congress.⁵⁹ Second, some areas reached a consensus on ecosystem restoration programs and convinced Congress to fund them. The Convention and Agenda 21 are the incidental beneficiaries of these efforts, but played no role in their adoption.

Ten years after Rio, the United States has no explicit comprehensive biodiversity conservation program in place. Biodiversity is still not a generally accepted legal standard. At best, it is an objective which may be considered along with other competing ones when resource managers make allocation decisions that promote or impair biodiversity.⁶⁰ The reason is simple. Biodiversity emerged as a concept after the basic public land and environmental laws were in place, and domestic politics have prevented both the ratification of the Convention and all efforts to develop a national biodiversity conservation strategy. Thus, biodiversity is a marginal (and often disguised) policy objective which must be superimposed over existing resource management schemes. Conservation is thus a difficult task for two primary reasons. First, the lack of a specific statutory mandate often constrains managers from exercising existing discretion to promote biodiversity. Second, the resource management laws which must be integrated with biodiversity protection were generally enacted to create a federal entitlement regime in public resources. Strong expectations that these entitlements will not be modified exist among user communities. These expectations have been reinforced by recent "takings" jurisprudence, which has cast a cold eye on environmental justifications for regulations with a substantial adverse economic impact.⁶¹ In short, since 1992, the United States has relied on the adaptation of a variety of laws which could be called a biodiversity strategy to meet the Convention's standards. These laws range from the ESA to specific resource recovery experiments. The joint federal-state efforts to restore the Florida Everglades is the best example of an explicit legislative mandate to preserve and restore the biodiversity of a single ecosystem.⁶²

The ESA

The ESA is a backwards approach to biodiversity because it only indirectly addresses the major cause of biodiversity loss, habitat destruction, and does not concern itself with other causes such as the invasion of exotic species and air and water pollution. However, it remains the lynchpin of biodiversity conservation in the United States and the primary evidence of compliance with the Convention and Agenda 21. Biodiversity may be protected as the byproduct of preventing the extinction of a species that is already in intensive care. The ESA was passed in 1973 to implement the Convention on Trade in Endangered Species (CITES). The ESA both prohibits trade in CITES-listed species and tries to prevent the extinction of domestic species. CITES' relationship to the Act has largely been forgotten in the ensuing decades, but the relationship could have constitutional significance as the Supreme Court has revived the U.S. Commerce Clause as a limitation on federal power.⁶³ The Foreign Affairs Clause is an alternative basis to uphold the Act should the Court hold that the protection of species with no demonstrable nexus to interstate commerce is unconstitutional and courts refuse to accept the idea that all biodiversity loss is connected.⁶⁴

The primary focus of the ESA is to prevent the extinction of individual "listed" species. To receive protection, the species must be listed by the U.S. Departments of the Interior (DOI) or Commerce as endangered, threatened, or warranted but precluded. In 2000, there were more than 1,200 listed domestic species.⁶⁵ This number is a small fraction of the estimated 66,000 U.S. species at risk of extinction.⁶⁶ The difference between the first two classifications is the projected time horizon of the extinction threat. Listing is a scientific decision that must be made on the best available science and thus precludes economic trade offs.⁶⁷ The question of what is a species has become more controversial as the listing agencies have moved away from traditional Linnaerian classifications toward definitions more consistent with the definition of biodiversity.⁶⁸ For example, both the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) have begun to list evolutionary significant units of populations of nonendangered species on the ground that the gene pool of an isolated population is a biodiversity resource that should be conserved.

The ESA also permits the conservation of a listed species' habitat⁶⁹ but the habitat listing provisions are vague and often counterproductive. The Secretary of Interior can designate [32 ELR 10538] only the minimum critical habitat necessary to preserve the species and may use cost-benefit analysis in so doing.⁷⁰ The statute does not clearly specify the management duties which follow from designation. In addition, the duty to designate is not absolute; the Secretary may refuse to list a species because designation will encourage the destruction of the identical critical habitat. The prudence limitation has been often invoked by the Secretary, but increasingly courts have held that the failure to designate is arbitrary and take the position that the DOI has a duty to protect the species in its habitat.⁷¹

Once a species is listed, the Act contains three major, substantive protection duties. Section 7 prohibits any federal agency from taking any action which will jeopardize the continued existence of a species. Any agency that is likely to do so must consult with the FWS or the NMFS, which has jurisdiction over anadromous fish, and these agencies can then issue a jeopardy opinion if they determine thatharm is likely to occur.⁷² In Tennessee Valley Authority v. Hill,⁷³ the Supreme Court held that the Act is substantive and the jeopardy prevention duties are absolute; accordingly, courts have no discretion to balance the equities and withhold injunctive relief for a violation. Section 7 applies only to federal agencies; private landowners did not have to comply with § 7 duties when they disturb or destroy biodiversity. However, another section extends the ESA to private lands and is the basis for most ESA-driven biodiversity conservation programs. Section 9 prohibits the taking of a listed species by any individual. The DOI has defined a taking to include habitat modification that could lead to the death of a species. This definition was upheld by the Supreme Court, although the required nexus between the modification and the risk of death to the species has not yet been clarified by the courts. Nonetheless, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon⁷⁴ is an example of precautionary principle at work because it allows federal agencies to resolve questions about the necessary level of protection in favor of minimizing the risks to the continued existence of the species in the absence of conclusive scientific evidence that a specific action will lead to immediate harm.⁷⁵ The final protection duty is the development of a recovery plan to save the species. Recovery plans include site-specific management actions and "objective, measurable criteria" to determine when a species can be delisted.⁷⁶

The listing of a species as threatened or endangered and the designation of its critical habitat is no guarantee that the species will survive. A recent survey of the literature on the state of listed species concluded that "according to one reporter, 'approximately 16[%] of species in the [United States] are in immediate danger of extinction.' Thirty-three percent of animals and plants on the Endangered Species List are declining."⁷⁷ These dismal numbers raise the question of whether the Convention adopts an input or output compliance model. Most international and national legislative mandates require only input compliance⁷⁸ since it is too difficult to police and measure effective output. But, the gap between formal compliance and demonstrated biodiversity conservation reminds us that the ultimate measure of the Convention's effectiveness is the biodiversity that it actually conserves for future generations.

Species protection is far from absolute. The harsh impacts of the ESA are tempered in two ways that can undermine the conservation of biodiversity. First, the 1978 and 1982 Amendments create an exemption process that requires: (1) a determination by the Secretary of the Interior that good-faith consultation occurred, (2) an adjudicatory hearing before an administrative law judge, (3) a report to the Secretary, and a (4) final determination by the cabinet-level ESA committee, also known as the "God Squad." This route has been sparingly invoked. There have been only three "God exemptions." The Tellico dam was not given an exemption because the cabinet committee thought that the project was tainted pork. The Secretary of the Interior resisted a God Squad petition by irrigators in the stressed Klammath basin in the summer of 2001. Second, the process has become a de facto permit process⁷⁹; the ESA [32 ELR 10539] functions more like a process to facilitate development by finding no probable violation or allowing the proponent to negotiate an acceptable mitigation plan. A 1992 U.S. General Accounting Office report⁸⁰ found that there were 100,000 plus consultations between 1987-1992, but only 27 jeopardy opinions were issued. The agency usually tries to identify reasonable mitigation alternatives⁸¹ consistent with the proposed activity. In the past decade, the DOI has used §§ 4 and 10 of the Act to create a more complex permit process tied to large biodiversity conservation objectives.

The evolution of the ESA since 1992 shows both the defects in the lack of formal legislative recognition of biodiversity and the ability of federal agencies to adapt old laws to this objective. Since 1992, the ESA has evolved to encourage the use of large-scale, multi-species habitat conservation plans (HCPs) and other forms of ecosystem management. This evolution was stimulated by international political conditions in the United States rather than by the Convention. HCPs and other ecosystem management experiments teach both positive and negative lessons. The positive lessons are that it is possible to move from individual species to general biodiversity conservation within the framework of the ESA and thus honor the primary purpose of the Convention and to promote more sustainable development. The negative lesson is it is possible to use untested experiments as evidence of compliance before their effectiveness is fully tested.

HCPs were stimulated by the DOI's extension of the "taking" of a listed species to habitat modification, which exposed local governments and land owners to uncertain liability risks for both direct development activities and regulatory decisions that allowed the development.⁸² The Act's primary "flexibility" device, HCPs, became a variance process to allow limited or "incidental takes." The broad definition of "take" upheld in Sweet Home is the primary legal glue that holds these programs together and creates the enforcement threat necessary to induce their creation. The price for a variance is high because HCPs generally require the creation and maintenance of a habitat reserve administered by local governments and financed by public expenditures and developer exactions. As this new liability risk to developments became known, states in biodiversity hot spots⁸³ such as California, Florida, and Texas began to seek ways to avoid the enforcement of the ESA in a manner that prohibited all land development. The DOI became a supporter of these efforts after the Republicans captured Congress in 1994 and began a frontal assault on the ESA and biodiversity conservation. The extensive growth of large-scale, multi-stakeholder HCPs is the most significant post-1992 federal biodiversity conservation achievement.⁸⁴

HCPs date from 1982, but they were generally single species, small-scale efforts until the 1990s. One of the first chances to find creative ways to balance species conservation and continued development arose in California.⁸⁵ To avoid the listing of a small song bird under the state's "little-ESA," California devised a soft-planning process to promote voluntary multi-species reserves. At the urging of then-Gov. Peter Wilson (R-Cal.), in 1991 the California Legislature passed the Natural Community Conservation Act. The Act created a voluntary program through which local governments and private landowners may cooperate in the preparation of plans to be known as natural community conservation plans (NCCPs), for the protection of those natural areas that provide habitat for a variety of rare and other species.⁸⁶ The NCCP was a vague formulation of an idea on a slim statutory basis⁸⁷ with a high potential for ineffectiveness. Many environmentalists immediately rejected the idea as an ESA avoidance scheme, but the state had the vision that NCCPs could be large-scale, multi-species equivalents of HCPs which addressed species conservation plans proactively rather than reactively and more generally promoted bioregional planning and management. The California experience has become a model for many subsequent plans after it was embraced by the Clinton Administration's DOI to avoid the "train wreck" that was perceived to have occurred when the listing of the northern spotted owl halted a great deal of logging in old growth forests in the Pacific Northwest. By the end of 2000, the DOI had issued some 290 incidental take permits for HCPs covering 20 million acres.⁸⁸

To test the NCCP program, in 1991 the California Resources Agency selected as a pilot project the "coastal sage scrub" terrain of southern California, a region that had already experienced conflicts under the existing endangered species legislation. The state wildlife agencies (The Department of Fish and Game and its parent agency, the Resources Agency) began working closely with the FWS to implement the new statute in three countiesof southern California, putting aside years of federal-state distrust and rivalry. As a [32 ELR 10540] reward for the good-faith, but then untested, efforts of the state, the Secretary of the Interior designated the California gnatcatcher as a threatened species rather than as an endangered one. More important, he listed the song bird under a § 4(d) rule which allowed him to exempt those activities that are approved as part of the NCCP process from the prohibition of taking the species.⁸⁹ In effect, the DOI de facto delegated considerable authority to the state to set allowable yearly incidental takes, but the strategy led to the creation of a large nature reserve in 1996. Although this action changed the voluntary nature of the NCCP program substantially, it set in motion an opportunity to test cooperative habitat planning at the national level.

The basic lesson of the coastal sage scrub NCCP is that it is possible to promote federal, state, and local agency cooperation to developed multi-species rare HCPs which are more effective and efficient compared to the ESA process of listing, critical habitat designation, and strict enforcement of the Act against all violators.⁹⁰ Many strong supporters of biodiversity conservation see the process as the best alternative to counter efforts to roll back species protection on the theory that the ESA blocks almost all development, small and large. More grandly, the NCCP process has provided an opportunity to cure the central "defect" in the ESA without reauthorizing the Act. The ESA is a biodiversity conservation strategy, but it only indirectly addresses the primary cause of biodiversity loss, habitat destruction. Further, it only comes into play at the eleventh hour when the species' survival is in doubt. It does not, therefore, promote the conservation of ecosystems on the geographic scale necessary to promote biodiversity generally, rather than simply for species that are on death's door.

Some environmental NGOs continue to see the process as an end run around the one substantive environmental law with real teeth. They prefer a strategy of listing, critical habitat designation and enforcement of all takes. The risks in large-scale multi-species HCPs are substantial, but risks of ineffectiveness from the ESA strategy are equally high. The debate continues to this day, although it seems to have shifted from the merits of the basic idea of the HCP to how to improve the HCP process.⁹¹ Skepticism is warranted because two, somewhat inconsistent, lessons can be drawn for biodiversity conservation from the HCP experience to date. First, it is possible to extend the ESA from a single species protection statute to a biodiversity conservation statute. Second, the ad hoc, public-private partnership approach exposes the risks of the lack of a firm legal framework. Private parties both control the level of diversity preserved and the implementation and monitoring process.⁹²

Public Land Biodiversity Reserves

As previously discussed, the Convention requires that all countries establish a system of protected areas for biodiversity and regulate or manage the biological resources within and without these areas for their conservation and sustainable use. This includes "the protection of ecosystems, natural habitats and the maintenance of viable populations in natural surroundings."⁹³ Article 14 requires that countries have an environmental impact assessment procedure in place to assess projects that may adversely affect the countries' reserve system. The United States would seem to have easily fulfilled these requirements prior to 1992. It retains large amounts of public land which contains a great deal of biodiversity, and the National Environmental Policy Act (NEPA) applies to many public land decisions that may adversely affect biodiversity.⁹⁴ But, these retained lands are managed for multiple uses, many of which are inconsistent with biodiversity. The Clinton Administration tried to reorient public land management to biodiversity conservation, but it did not fully succeed. Thus, adherence to the Convention and with Agenda 21 remain incomplete.

The federal government retains large amounts of public land because much of the public domain was not suitable for permanent settlement. Starting in the late 19th century, these lands were withdrawn from settlement under the Homestead Act and subsequent laws and retained by the federal government. Retention was initially largely passive, but from the Progressive Conservation era to the present, federal public lands have been increasingly actively managed.⁹⁵ The environmental movement resulted in the imposition of more explicit planning mandates on the resource management agencies.

The primary categories of public lands management are national forests, wilderness areas, national parks, and Bureau of Land Management (BLM) lands. These reserved lands are not presently well adapted to biodiversity conservation because wide ranges of incompatible uses are allowed. The continuing legacy of the 19th century tradition of public land disposition to promote the settlement of the country is that all public lands are open to use by the public for uses which range from exploitation to intrusive recreation. The issue in public land management is too often the intensity and scope of the use, rather than the alternative of biodiversity conservation, because the dominant resource management philosophy is multiple use. Multiple use management both supports and hinders biodiversity conservation.

[32 ELR 10541]

Multiple use posits that all uses from commodity extraction and production to biodiversity conservation are equal. This philosophy is enshrined in the management mandates of the Forest Service⁹⁶ and the BLM. In recent years, Congress has increased the planning mandates on the primary federal land management agencies and these increased planning duties require that greater consideration be given to historically neglected values, environmental values generally, and biodiversity conservation specifically.⁹⁷ However, federal land managers still retain the discretion to strike the final balance among the full range of possible uses. The controls on discretion are primarily political rather than judicial. It is virtually impossible to convince a court to reverse a considered management decision which trades off biodiversity conservation for some other permissible objective after due consideration.⁹⁸ Judicial review is possible, but courts are likely to intervene only when federal land management agencies have delegated authority to local resource users in a way that creates a substantial risk that federal management duties, including biodiversity conservation, will be compromised⁹⁹ or there is a clear failure to implement a statutory mandate.¹⁰⁰

The drag of history is great in public land law and policy,¹⁰¹ but multiple use can promote biodiversity because it provides the legal foundation for a management decision to preserve biodiversity. Although multiple use has been historically heavily weighted toward commodity production, biodiversity conservation is a legitimate multiple use. As a legal matter, no use is superior to another and agencies retain consideration discretion to change the weight accorded to different uses as societal understanding of the value of alternative uses evolves. The affirmative use of multiple use discretion and the tension between biodiversity conservation and commodity production entitlements are illustrated by the Court's decision in Public Lands Council v. Babbitt.¹⁰²

Overgrazing of BLM-administered lands has been a well-documented problem for over a century.¹⁰³ The overrepresentation of rural interests in the federal system makes it difficult for the U.S. Congress and successive administrations to address the problem, or even study it. In 1934, Congress passed the Taylor Grazing Act¹⁰⁴ to control access to public lands, but this Act effectively delegated much of the authority over public lands to local grazing councils and consequently serious environmental concerns were not addressed until the 1970s. The Clinton Administration DOI tackled the problem of biodiversity loss on BLM lands in 1995 by issuing amended Taylor Grazing Act "stewardship" regulations which tried to limit individual grazing permits to make them more compatible with ecosystem management. These regulations were upheld by a lower court, but the livestock industry challenged the regulations which allocated forage rights by land use plans rather than prior use on the theory that the Act's guarantee of adequate safeguards for gazing privileges created a vested expectation of security. Courts have long held that Taylor Grazing Act grazing permits are licensees not possessory rights, and the Supreme Court held that the BLM had the authority to issue the regulations because Congress had subsequently mandated land use planning for grazing lands and thus the agency had not violated the statutory guarantee of adequate safeguards.¹⁰⁵

The obvious conclusion that must be drawn from matching biodiversity conservation objectives to public land law is that the fit is imperfect. Science counsels that biodiversity conservation generally requires the dedication of large blocks of land to habitat maintenance, but this is only the starting point. As a result of the progressive conservation movement, large blocks of public land have been withdrawn from all or mostcommodity production. These would seem to be the foundation of a federal biodiversity reserve system, but the science of biodiversity conservation also counsels that the dedicated land must form a functional, ecosystem unit at the appropriate scale¹⁰⁶ and that these areas often need to be managed and redefined as they evolve. Thus, size per se is less important than the right mosaic of habitat patches. The federal government has tried administratively to knit together different land management units into coherent, managed ecosystems but has encountered many problems. The dedication of land to single rather than multiple use management is no guarantee that biodiversity conservation will be achieved.

The Wilderness Act of 1964 illustrates the mismatch in that it is not responsive to modern biodiversity conservation. It was enacted at the dawn of the environmental era and reflected the naive assumption that primitive nature existed¹⁰⁷ and should (and could) be preserved for aesthetic [32 ELR 10542] and cultural reasons. Unfortunately, designated wilderness areas are not the areas that one would choose to create a biodiversity reserve system. Because of their high elevation and cold climates, most areas are characterized by low rather than high biodiversity productivity.¹⁰⁸ Wilderness areas present another problem: they were viewed as museums of the primitive nature to be left untouched, but this notion is contrary to modern ecological theory. "Unfortunately defining natural as pristine does not address the problem of dynamism in ecosystems. If ecosystems are dynamic, then any pre-settlement date, such as 1492, is an arbitrary reference point."¹⁰⁹

To remedy the misfit between public land law, unit boundaries and biodiversity conservation, public land management agencies have tried to bend existing public land management mandates and political boundaries to biodiversity conservation. This is a crucial first step toward effective biodiversity conservation, because the very process of superimposing ecosystem boundaries over existing public land categories and political jurisdictions forces people to envision a different landscape with biodiversity at the center rather than at the margin. Starting in the late 1980s, the U.S. Department of Agriculture and the DOI launched a number of ecosystem management initiatives based on interagency cooperation. Some of these efforts, such as the Greater Yellowstone Coordinating Committee, tried to define the appropriate ecosystem, including public and private land, surrounding the core reserve area, in this case Yellowstone National Park.¹¹⁰ The objective was to stop rapid degradations of the ecosystem and to manage the entire ecosystem on a sustainable basis, including biodiversity conservation, through a variety of public and private cooperative efforts. However, once the ecosystem was mapped, the management efforts, weak as they were, were opposed by commodity users and others who saw the concept as an attack on multiple use and the protection of long-established entitlements. In other areas, such as the Sierra Nevada of California, forest master plans prepared during the 1990s accord much greater weight to wildlife conservation than was done in the past. Sadly, on the whole, these ad hoc efforts have failed to address effectively problems on an ecosystem level for a variety of reasons, ranging from inadequate scientific information, the inability of government and other public entities to overcome political boundaries and missions, the lack of adequate budgetary support, and the failure to develop broad stakeholder support. But, on the positive side, post-1992 water and land development plans are often much more sensitive to landscape and stream system impacts.

Recommendations and Conclusions

Effective, sustained biodiversity conservation remains but an aspiration a decade after Agenda 21. To implement Agenda 21, the United States should immediately take three steps.

First, it should ratify the Convention. Ratification will establish biodiversity conservation as an overarching legal objective in the United States and stimulate the development of a comprehensive national biodiversity conservation strategy. It will also focus attention on effective compliance with the substantive objective.

Second, the legal mandates of the major federal land management and regulatory agencies should be revised to require them to conserve biodiversity to the maximum extent possible consistent with due process and the sustainable use of natural resources. All of the applicable laws were enacted before biodiversity emerged as a legislative objective and before 1992, and they need to be revised to provide federal land management agencies with express biodiversity conservation mandates and duties. This would include clarifying the role of state and local governments and private parties in HCPs as well as providing performance standards for them. This will be a difficult, if not impossible, task but there are precedents, such as the 1970 Report of the Public Land Law Review Commission¹¹¹ and the 1973 report of the National Water Commission,¹¹² both of which stimulated new legislative and policy approaches to resource management.

Third, the United States should create a Biological Survey, equal to the U.S. Geological Survey, to inventory the nation's biodiversity heritage and to provide the necessary scientific support for the establishment of biodiversity indices and conservation performance standards. The survey was proposed in the first Clinton Administration but died due to intense opposition from commodity users and "wise use" advocates. Effective conservation will not be possible until there are substantive criteria to establish conservation goals and performance measures. Too often, major biodiversity conservation initiatives such as the California Bay Delta Process have been long on process and short on substance. The creation of a Biodiversity Survey should be complemented by encouraging federal land grant universities to give biodiversity conservation research and support parity with agricultural research and support. In addition, although biodiversity conservation is primarily a national responsibility, private land stewardship must be recognized and supported. There are many innovative private efforts underway,¹¹³ and these must be encouraged by appropriate public incentives.¹¹⁴

A Biological Survey can also facilitate the incorporation of the precautionary principle into resource management decisions. All biodiversity conservation is an experiment. The question is how to manage the uncertainty. The constant production of relevant scientific information and new testable hypothesis can help bound the inevitable uncertainty. If this occurs, the precautionary principle will become more acceptable because the range of potential risks to parties impacted by the decision will be better understood and it will be easier to identify acceptable risk minimization alternatives.

1. NORMAN MYERS, THE SINKING ARK: A NEW LOOK AT THE PROBLEM OF DISAPPEARING SPECIES (1979) is an early, influential book that called attention to the accelerating loss of species. See Norman Myers & Andrew H. Kroll, The Biotic Crisis and the Future of Evolution, 98 PROC. OF THE NAT'L ACAD. OF SCI. 5389 (2001), for Myers' latest statement of the "biotic crisis." Other important recent works documenting the continuing loss of biodiversity include NILES ELDRIDGE, LIFE IN BALANCE (1998) and TIM PALMER, THE HEART OF AMERICA: OUR LANDSCAPE, OUR FUTURE (1999).

2. See John C. Dernbach, Sustainable Development: Now More Than Ever, 32 ELR 10003 (Jan. 2002).

3. Endangered Species Act, 16 U.S.C. §§ 1531-1554, ELR STAT. ESA §§ 2-18.

4. See BIODIVERSITY AND THE LAW 33-58 (William J. Snape III ed., 1996).

5. PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT: SUSTAINABLE AMERICA: A NEW CONSENSUS FOR PROSPERITY AND A HEALTHY ENVIRONMENT FOR THE FUTURE (1996).

6. NATIONAL RESEARCH COUNCIL, A BIOLOGICAL SURVEY FOR THE NATION (1993). See also H. JOHN HEINZ CENTER FOR SCIENCE, ECONOMICS, AND THE ENVIRONMENT, DESIGNING A REPORT ON THE STATE OF THE NATION'S ECOSYSTEMS (1999).

7. 31 I.L.M. 818 (1992).

8. May 23, 1969, 1155 U.N.T.S. 331.

9. U.N. Conference on Environment and Development (UNCED), Agenda 21, U.N. Doc. A/CONF.151.26 (Vols. I, II, and III 1992).

10. Id. P15.4.

11. Id. P15.6(d).

12. See Sir Jeffrey Palmer, New Ways to Make International Environmental Law, 86 AM. J. INT'L L. 259 (1992).

13. Catherine Tinker, Responsibility for Biological Diversity Under International Law, in INTERNATIONAL LAW: CLASSIC AND CONTEMPORARY READINGS 415, 417 (1998).

14. State responsibility for transboundary demonstrable, quantifiable pollution rests on the principle that state sovereignty is limited by the duty not to cause environmental damage such as air or water pollution to another state. The leading case is the Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1949). The United States successfully sued Canada for damage to field crops in Washington State caused by a lead and zinc smelter upwind in British Columbia. Canada agreed to be bound by U.S. precedents, which allowed a victim state to sue a host state for nuisances originating in the later, and the Tribunal stated that "no State has a right to use or permit the use of its territory in such a manner as to cause injury to the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence." The principle of state responsibility has been accepted by the International Court of Justice (ICJ). Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. Rep. Principle 21 of the 1972 Stockholm Declaration modestly extended this customary international law rule and posits that states have a right to exploit their own resources as well as "the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of another state or of areas beyond the limits of national jurisdiction." Stockholm Declaration of the United Nations Conference on the Human Environment, U.N. Doc.A/CONF. 58.14 at 2-65 and Corr. 1 (1972) princ. 21, 11 I.L.M. 1416 (1972).

15. See Simon S.C. Tay, Southeast Asian Fires: The Challenge for International Environmental Law and Sustainable Development, 11 GEO. INT'L ENVTL. L. REV. 241 (1998).

16. Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265, 269-75 (1991) (distinguishing among utilitarian, aesthetic, and ethical justifications for biological diversity). The ethical appeal of biodiversity is often based on the merits of species preservation, but this conflation often dilutes the more subtle case for biodiversity conservation and illustrates its marginal status as a basis for social policy. See STEPHEN R. KELLERT, THE VALUE OF LIFE: BIOLOGICAL DIVERSITY AND HUMAN SOCIETY (1996) (identifying nine basic values at stake in species preservation and finding that despite expressions of ethical concerns for biodiversity "most Americans remain fixed on a narrow segment of the biotic community—largely vertebrate animals, particularly creatures of special historical, cultural and aesthetic significance."). Id. at 62.

17. This argument is widely contested by those who argue that environmental decisions are primarily political decisions informed by ethical concerns. I have defended my position that environmental law's primary legitimacy rests on science at greater length in A. Dan Tarlock, Environmental Law: Ethics or Science?, 7 DUKE ENVTL. L. & POL'Y F. 193 (1996).

18. The evolution of the idea is traced in DAVID TACKAS, THE IDEA OF BIODIVERSITY: PHILOSOPHIES OF PARADISE (1996).

19. This is the theme of modern environmental history. See, e.g., CLIVE PONTING, A GREEN HISTORY OF THE WORLD: THE ENVIRONMENT AND THE COLLAPSE OF GREAT CIVILIZATIONS (1991); TIM FLANNERY, THE ENDLESS FRONTIER: AN ECOSYSTEM HISTORY OF NORTH AMERICA AND ITS PEOPLES (2001).

20. EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY 193-216 (1988).

21. Daniel M. Bodansky, International Law and the Protection of Biodiversity, 28 VAND. J. TRANSNAT'L L. 623 (1995) (identifying three core principles in the Convention: (1) the precautionary principle, (2) intergenerational equity, and (3) the differentiated responsibility of developing nations).

22. The efforts to create a new category of global commons to include heritage resources can be traced to the Declaration of Principles in the United Nations Law of the Sea Convention. The Principles declare that the "sea-bed and ocean floor" are the "common heritage of mankind." 10 I.L.M. 220 (1971). However, "this legal appellation has never been defined in a treaty or binding convention." DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 794 (1998). In addition, the idea has not been extended to resources within the borders of a sovereign country. Efforts to extend the heritage category to land areas which have traditionally been under the exclusive control of the nation in which they are located has met with great opposition. For example, efforts to create a World Park in the Antarctic, the only major land mass in the world which has not been allocated to individual sovereign nations, and to declare Lake Baikal in the Russian Federation a heritage resource failed. See JEFFREY D. MYHRE, THE ANTARCTIC TREATY SYSTEM: POLITICS, LAW, AND DIPLOMACY (1987) and M. Evelyn Woods, International Environmental Aid to the States of the Former Soviet Union: A Case Study Focusing on Siberia's Lake Baikal, 5 COLO. J. INT'L ENVTL. L. & POL'Y 459 (1994). The Convention merely affirms that "that the conservation of biological diversity is a common concern of humankind." The best precedent for the recognition of extraterritorial duties remains the Australian Commonwealth High Court decision in Commonwealth v. Tasmania, 158 C.L.R. 1 (1983). Australia, like Canada, has a strong federal system with a highly constrained national government. The Commonwealth's environmental protection duties are a case in point. In the early 1980s, the Commonwealth government prohibited a state from destroying a wilderness area, and the state challenged the Act as unconstitutional. In a 4-3 decision, the High Court upheld the power of the Commonwealth Parliament to implement the World Cultural and Natural Heritage Convention, which protects two types of property—cultural and natural—and imposes a duty on signatory states not to impair the cultural and natural heritage of another country. The state of Tasmania planned to construct a hydroelectric dam in a wilderness area that the Commonwealth had listed as a world heritage site, and the Court held that the Commonwealth could invoke the foreign affairs power to pass legislation to block the dam's construction. One Justice reasoned that if the executive enters into an international agreement, Parliament gains control under the foreign affairs power. Thus, the Court will presume that there are reciprocal international benefits from observing the treaty, and that the Commonwealth has an affirmative duty to protect heritage sites. Another Justice was more cautious and suggested that if there is no specific treaty obligation, the issue must at least evidence international concern. See generally Eva M. Kornnicker Uhlman, State Community Interests, Jus Cogens, and Protection of the Global Environment: Developing Criteria for Peremptory Norms, 11 GEO. INT'L ENVTL. L. REV. 10 (1998). It is highly unlikely that the U.S. Supreme Court, with its current deep-seated distrust of international law, would use an international treaty to expand federal power. However, as the primary biodiversity conservation law, the ESA is increasingly challenged as beyond the U.S. Congress' power to enact—the precedent is a useful reminder that international law can support new domestic initiatives. Commonwealth v. Tasmania also illustrates that courts can "internationalize" biodiversity resources by justifying protection as both a domestic and international obligation.

23. Declaration of the United Nations Conference on the Human Environment, June 16, 1972, 11 I.L.M. 1416.

24. CURTIS H. FREESE, HARVESTING WILD SPECIES: IMPLICATIONS FOR BIODIVERSITY CONSERVATION 15-36 (1997).

25. The World Resources Institute website, available on the Internet at http://www.wri.org/wri/biodv/gbs (last visited Jan. 26, 2001), is a useful source of current information on the rate of biodiversity loss. See generally WORLD RESOURCES INST., GLOBAL BIODIVERSITY STRATEGY (1992).

26. Convention on Biological Diversity, supra note 7, art. 6.

27. Id. art. 7(b).

28. Id. art. 14(a).

29. Id. art. 15. Article 16 encourages the transfer of technology "relevant to the conservation and sustainable use of biological diversity or to make use of genetic resources. . . ."

30. Article 8 also imposes a duty to prevent the introduction of alien species that threaten ecosystems, habitats, or species. The control of alien species has emerged as one of the major issues in biodiversity conservation because alpha (local) biodiversity is superior to beta (general) biodiversity.

31. For an early survey of ex situ methods, see OFFICE OF TECHNOLOGY ASSESSMENT, TECHNOLOGIES TO CONSERVE BIOLOGICAL DIVERSITY (1983).

32. EDWARD O. WILSON, THE DIVERSITY OF LIFE 353 (1992).

33. See NATIONAL RESEARCH COUNCIL, RESTORATION OF AQUATIC ECOSYSTEMS (1992); Joseph L. Sax, The New Age of Environmental Restoration, 41 WASHBURN L.J. 1 (2001).

34. See WILSON, supra note 32.

35. See REED F. NOSS & ALLEN Y. COOPERRIDER, SAVING NATURE'S LEGACY: PROTECTING AND RESTORING BIODIVERSITY (1994).

36. See ANN VILEISIS, DISCOVERING THE UNKNOWN LANDSCAPE: A HISTORY OF AMERICA'S WETLANDS (1997).

37. 33 U.S.C. § 1334.

38. NATIONAL RESEARCH COUNCIL, WETLANDS: CHARACTERISTICS AND BOUNDARIES (1995).

39. See COUNCIL OF ENVIRONMENTAL QUALITY, ELEVENTH ANNUAL REPORT 273 (1985) (adopting a three-part test that has expanded into a four-part test as community has been inserted between species and ecosystem).

40. This analysis is adapted from WALTER REID ET AL., BIODIVERSITY INDICATORS FOR POLICY MAKERS (World Resources Inst. 1993). The best source of biodiversity information is ENCYCLOPEDIA OF BIODIVERSITY (Simon A. levin ed., 2000).

41. E.g., THE ETHICS OF THE ENVIRONMENT (Andrew Brennen ed., 1995).

42. See Holly Doremus, Nature, Knowledge, and Profit: The Yellowstone Bioprospecting Controversy and the Core Purposesof America's National Parks, 26 ECOLOGY L.Q. 401 (1999).

43. James Salzman et al., Protecting Ecosystem Services: Science, Economics, and Law, 20 STAN. ENVTL. L.J. 309, 312 (2001).

44. Convention on Biological Diversity, supra note 7, art. 8(d). Article 25 creates a "subsidiary body for the provision of scientific, technical, and technological advice . . . ."

45. NATIONAL RESEARCH COUNCIL, ECOLOGICAL INDICATORS FOR THE NATION (2000).

46. See, e.g., Judith L. Meyer, Changing Concepts in System Management, in SUSTAINING OUR WATER RESOURCES: WATER SCIENCE AND TECHNOLOGY BOARD, NATIONAL ACADEMY OF SCIENCES-NATIONAL RESEARCH COUNCIL TENTH ANNIVERSARY SYMPOSIUM 78 (National Acad. Press 1993).

47. DANIEL B. BOTKIN, DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY (1990).

48. WALLACE KAUFMAN, NO TURNING BACK: DISMANTLING THE FANTASIES OF ENVIRONMENTAL THINKING (1994), argues that Botkin's book challenges the environmental religion.

49. Most environmental philosophy views the assertion of human primacy over nature as the original sin and tries to rectify this by radically shrinking the human role. See, e.g., J. Baird Callicott, The Historical Roots of EuropeanAttitudes and Values, in EARTH'S INSIGHTS 14 (1994). Cf. Judith Green, Retrieving the Human Place in Nature, 17 ENVTL. ETHICS 381 (1995).

50. The philosophical basis for the new ecology can be found in Bill McKibben's widely read THE END OF NATURE (1989), which argues the modern mind separates humanity from nature and thus the romantic visions of harmony between humanity and nature are impossible. However, Justice Oliver Wendell Holmes, dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919) articulated the central message of the non-equilibrium paradigm. In defense of his "market of ideas" theory of the First Amendment, he wrote that "our Constitution . . . is an experiment, as all life is an experiment."

51. BOTKIN, supra note 47, at 190.

52. For a good short review of the early literature, see Bruce A. Wilcox & Dennis D. Murphy, Conservation Strategy: The Effects of Fragmentation on Extinction, 125 AM. NATURALIST 879 (1985).

53. See Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age" Environmental Protection, 41 WASHBURN L.J. 50 (2001).

54. An important text is CONSERVATION BIOLOGY: AN EVOLUTIONARY-ECOLOGICAL PERSPECTIVE (Michael E. Soule & Bruce A. Wilcox eds., 1980).

55. 46 F.3d 606, 25 ELR 20514 (7th Cir. 1995).

56. The Sierra Club's chief scientific expert argued that it was "inappropriate to favor any single community type to the exclusion of others." Donald M. Waller, Biodiversity as a Basis for Conservation Efforts, in BIODIVERSITY AND THE LAW, supra note 4, at 16, 22.

57. See also Fund for Animals v. Babbitt, 903 F. Supp. 96, 26 ELR 20537 (D.D.C. 1995) (U.S. Fish and Wildlife Service's plan for grizzly bears did not have to include linkage corridors because there was a legitimate scientific disagreement about the need for them).

58. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993).

59. For descriptions of those political efforts, see Thomas O. McGarity, Deflecting the Assault: How EPA Survived a "Disorganized Revolution" by "Reinventing" Itself a Bit, 31 ELR 11249 (Nov. 2001); Jonathan Z. Cannon, EPA and Congress (1994-2000): Who's Been Yanking Whose Chain?, 31 ELR 10942 (Aug. 2001).

60. See Robert B. Keiter, Conservation Biology and the Law: Assessing the Challenges Ahead, 69 CHI.-KENT L. REV. 911 (1994) and Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293 (1994).

61. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992).

62. See The Everglades Rise Again, AUDUBON, July/Aug. 2001 (special issue).

63. The Lopez-Morrison decisions now subject congressional reliance on the Commerce Clause to regulate historically local activities to intensive heightened scrutiny reminiscent of Lochner-era due process review, Lochner v. New York, 198 U.S. 45 (1905). United States v. Lopez, 524 U.S. 549 (1995); United States v. Morrison, 120 S. Ct. 1740 (2000). Two circuit courts of appeals, in Gibbs v. Babbitt, 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000) (red wolf conservation promotes interstate tourism) and National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997) (Delhi Sands Flower-loving Fly), have held that the ESA is constitutional, but opponents will likely continue to argue that congressional power does not apply to local activities such as biodiversity conservation. See generally William W. Buzbee & Robert A. Sparks, Legislative Review, 54 STAN. L. REV. 87 (2001). For a comprehensive review of the ESA, see ENVIRONMENTAL LAW INST., ENDANGERED SPECIES DESKBOOK (forthcoming 2002).

64. For an example of the use of an international obligation to augment domestic power, see the discussion of the Australian High Court's Tasmanian Dam decision, supra note 22.

65. Holly Doremus, Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation, 30 ELR 10434 (June 2000).

66. See DALE D. GOBLE & ERIC T. FREYFOGLE, WILDLIFE LAW: CASES AND MATERIALS 1113-18 (2002) (containing a useful summary of the literature of extinction rates and species loss).

67. 16 U.S.C. § 1533(1)(A), ELR STAT. ESA § 4(1)(A). See Federico Cheever, The Rhetoric of Delisting Species Under the Endangered Species Act: How to Declare VictoryWithout Winning the War, 31 ELR 11302 (Nov. 2001). For a successful challenge to a failure to list decision, see Defenders of Wildlife v. Norton, 258 F.3d 1136, 31 ELR 20846 (9th Cir. 2001).

68. Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029 (1993).

69. 16 U.S.C. § 1533(a)(3), ELR STAT. ESA § 4(a)(3).

70. Id. § 1533(b)(2), ELR STAT. ESA § 4(b)(2). Courts have begun to require more explicit economic analysis of the costs of habitat designation. See National Ass'n of Home Builders v. North, No. CV00-0903-PHXSRB (D.D.C. Sept. 21, 2001); New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 31 ELR 20614 (10th Cir. 2001).

71. Early cases challenging the failure to designate habitat held that the failure to designate would not be an abuse of discretion. Some courts have accepted as a justification for the Secretary's refusal to designate critical habitat the likelihood that designation will encourage species destruction. See, e.g., Fund for Animals v. Babbitt, 903 F. Supp. 96, 26 ELR 20537 (D.D.C. 1995), amended, 967 F. Supp. 6 (D.D.C. 1997). But many of the more recent cases suggest that it will be difficult to justify a refusal to designate. E.g., Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 31 ELR 20500 (5th Cir. 2001); Forest Guardians v. Babbitt, 164 F.3d 1261, 29 ELR 20351 (10th Cir. 1999); Natural Resources Defense Council v. Department of the Interior, 113 F.3d 1121, 27 ELR 20971 (9th Cir. 1997). Nondesignation does not excuse noncompliance with the Act. Jeopardy can still be found if there is no designation, United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 22 ELR 20877 (E.D. Cal. 1992). However, the failure to designate makes it somewhat easier to find no jeopardy. Pyramid Lake Paiute Tribe of Indians v. Department of the Navy, 898 F.2d 1410, 20 ELR 20572 (9th Cir. 1990); Enos v. Marsh, 769 F.2d 1363, 15 ELR 20853 (9th Cir. 1985).

72. E.g., Pacific Rivers Council v. Thomas, 30 F.3d 1050, 24 ELR 21367 (9th Cir. 1994).

73. 437 U.S. 153, 8 ELR 20513 (1978).

74. 515 U.S. 687, 25 ELR 21194 (1995).

75. E.g., Marbled Murrelet v. Babbitt, 83 F.3d 1060, 26 ELR 20995 (9th Cir. 1996) (ESA requires only "reasonably certain threat of imminent harm").

76. 16 U.S.C. § 1533(f)(1)(B), ELR STAT. ESA § 4(f)(1)(B). The status of recovery plans is unclear. Fund for Animals v. Rice, 85 F.3d 535, 26 ELR 21433 (11th Cir. 1996), described the plans as "for guidance only," but other courts have given them more weight. Sierra Club v. Lujan, 36 ERC 1533 (W.D. Tex. 1993), dismissed, 995 F.2d 571 (5th Cir. 1993). See Federico Cheever, The Road to Recovery: A New Way of Thinking About the ESA, 23 ECOLOGY L.Q. 53 (1996).

77. Malaika M. Eaton, Of Salmon, Salamander, and Lizards: Can State and Local Conservation Plans "Preempt" the Endangered Species Act?, 87 CORNELL L. REV. 185, 186 (2001). See also Patrick Parenteau, Rearranging the Deck Chairs: Endangered Species Act Reforms in an Era of Mass Extinction, 22 WM. & MARY ENVTL. L. & POL'Y REV. 227 (1998).

78. The distinguished international law scholar Edith Brown Weiss has clearly articulated the difference between implementation and compliance with international agreements. Understanding Compliance With International Environmental Agreements: The Baker's Dozen Myths, 32 U. RICH. L. REV. 1555,1562-65 (1999). The issue of input versus output arose domestically in the 1970s after courts applied the Equal Protection Clause to correct municipal service disparities. See, e.g., Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971). Courts quickly opted for input rather than output compliance. Beal v. Lindsey, 468 F.2d 287 (2d Cir. 1972).

79. Oliver A. Houck, The Endangered Species Act and Implementation by the U.S. Departments of the Interior and Commerce, 64 U. COLO. L. REV. 278 (1993). The policy of jeopardy avoidance has continued to be followed since 1992. Daniel J. Rohlf, Jeopardy Under the Endangered Species Act: Playing A Game Protected Species Can't Win, 41 WASHBURN L.J. 114 (2001).

80. U.S. GENERAL ACCOUNTING OFFICE, ENDANGERED SPECIES ACT: TYPES AND NUMBER OF IMPLEMENTING ACTIONS (1992).

81. Hannah Gosnell, Section 7 of the Endangered Species Act and the Art of Compromise: The Evolution of a Reasonable and Prudent Alternative for the Animas-La Plata Project, 41 NAT. RESOURCES L.J. 561 (2001), is a good case study of this process at work. The ESA played a major role in downsizing the Animas La-Plata project, which is a proposed municipal supply and Indian irrigation project in southwestern Colorado, to protect listed endangered fish. PETER D. NICHOLS ET AL., WATER AND GROWTH IN COLORADO: A REVIEW OF LEGAL AND POLICY ISSUES 97 (2001).

82. J.B. Ruhl, State and Local Government Liability: Vicarious Liability Under the ESA, NAT. RESOURCES & ENV'T, Fall 2001, at 70; J.B. Ruhl, The Endangered Species Act and Private Property: A Matter of Timing and Location, 8 CORNELL J.L. & PUB. POL'Y 37 (1998).

83. WILSON, supra note 32, at 261. The California floristic reserve is the only U.S. site among the 15 listed by Wilson. Id. at 262-63.

84. See William J. Snape III et al., Protecting Ecosystems Under the Endangered Species Act: The Sonoran Desert Example, 41 WASHBURN L.J. 1440 (2001).

85. The Southern California HCP was one of many ambitious efforts by the Clinton Administration to use ecosystem management as a framework for dispute resolution. For a critical but balanced look at this effort, see Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869 (1997).

86. Calif. Legislature, 1991-1992 Regular Session, AB 2172, codified at CAL. FISH & GAME CODE § 2800 et seq. (1992). The statute authorizes any person or governmental agency to prepare a NCCP pursuant to an agreement with, and guidelines written by, the California Department of Fish and Game. CAL. FISH & GAME CODE §§ 2820, 2810, 2815. Each such plan is to promote "protection and perpetuation of natural wildlife diversity while allowing compatible and appropriate development and growth." Id. § 2805. Once the department approves an NCCP, it may authorize developments that might otherwise be found to have an adverse impact on listed or candidate species if they are consistent with the NCCP. Id. §§ 2081, 2825(c), 2835.

87. The metaphor is borrowed from Justice Holmes' opinion in Missouri v. Holland, 252 U.S. 416 (1920).

88. John Kostyack, NWF v. Babbitt: Victory for Smart Growth and Imperiled Wildlife, 31 ELR 10712 (June 2001).

89. 58 Fed. Reg. 16742, 16758 (Apr. 1, 1993).

90. The arguments in favor of the broader approach is summarized in Christopher Cole, Species Conservation in the United States: The Ultimate Failure of the Endangered Species Act and Other Land Use Laws, 72 B.U. L. REV. 343, 350-54 (1992).

91. See John Kostyack, Reshaping Habitat Conservation Plans for Species Recovery: An Introduction to a Series of Articles on Habitat Conservation Plans, 27 ENVTL. L. 755 (1997). The state of scientific knowledge of the effectiveness of HCPs is surveyed in Elaine K. Harding et al., The Scientific Foundations of Habitat Conservation Plans: A Quantitative Assessment, 15 CONSERVATION BIOLOGY 488 (2000).

92. See National Wildlife Fed'n v. Babbitt, 128 F. Supp 127 (E.D. Cal. 2000), for a case invalidating an insufficiently protective HCP. The decision is an excellent examination of the legal issues raised by federal reliance on local conservation strategies to fulfill ESA mandates and the need to assess carefully the protection assumptions in individual HCPs, since there is an inevitable tendency to paper over conservation risks.

93. Convention on Biodiversity, supra note 7.

94. E.g., Natural Resources Defense Council v. Morton, 388 F. Supp. 829, 5 ELR 20327 (D.D.C. 1974), aff'd per curiam, 527 F.2d 1386 (D.C. Cir. 1976), cert. denied, 427 U.S. 913 (1976) (NEPA requires the preparation of site-specific environmental impact statements at geographic level to be determined on a case-by-case basis); Sierra Club v. United States, 23 F. Supp. 2d 1132 (N.D. Cal. 1998) (the National Park Service failed to consider the cumulative impacts of construction of a new visitors' lodge in Yosemite National Park).

95. For an insightful, quasi-revisionist analysis of the evolution of public domain policy, see Leigh Ray Mond & Sally K. Fairfax, Fragmentation of Public Domain Law and Policy: An Alternative tothe Retention Thesis, 39 NAT. RESOURCES J. 649 (1999).

96. See Robert L. Fischman, Stumbling to Johannesburg: The United States' Haphazard Progress Toward Sustainable Forestry Law, 32 ELR 10291 (Mar. 2002).

97. See GEORGE C. COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW ch. 6 (1990).

98. Id. § 8.27.

99. E.g., National Parks & Conservation Ass'n v. Stanton, 54 F. Supp. 2d 7 (D.D.C. 1999); Natural Resources Defense Council v. Hodel, 618 F. Supp. 848, 16 ELR 20096 (E.D. Cal. 1985).

100. Oregon Natural Desert Ass'n v. Singleton, 47 F. Supp. 2d 1182 (D. Or. 1998) (management of Wild and Scenic River Corridor).

101. See, e.g., United States v. State, 23 P.3d 117 (Idaho 2001). In denying federal reserved rights for a wildlife refuge on an island in the Snake River, the court noted that were the Court to recognize a right it

would have to find that the water intended to be stored and regulated by colossal federal projects for the past 98 years would now be subordinated to the need to preserve water for the islands. The historical context of the designation rebuts the position of the United States. Reclamation was the primary concern of the developments in the Snake River.

23 P.3d at 128.

102. 120 S. Ct. 1815, 30 ELR 20566 (2000).

103. PHILLIP FOSS, THE POLITICS OF GRASS (1960); DEBRA DONAHUE, THE WESTERN RANGELAND REVISITED: REMOVING LIVESTOCK FROM PUBLIC LANDS TO CONSERVE NATIVE BIODIVERSITY (1999).

104. 43 U.S.C. §§ 315-315r. For a discussion of current public range law, see Joseph M. Feller, Back to the Present: The Supreme Court Refuses to Move Public Range Law Backward, but Will the BLM Move Public Range Management Forward?, 31 ELR 10021 (Jan. 2001).

105. 120 S. Ct. at 1815, 30 ELR at 20566.

106. The concept of scale is crucial to modern large-scale ecology, but the concept is an extremely complex one. For example, ecologists focus as much on ecological processes as on particular landscapes. There are two primary reasons for this. First, the concept of an ecosystem is an arbitrary boundary definition that belies the openness of complex systems. Second, ecosystems change over time as plants and animals adjust to different conditions. Patch dynamics posits that the natural world is a mosaic of individual habitat patches which change over time. See Fred Bosselman, What Law Makers Can Learn From Large-Scale Ecology, 17 FLA. ST. U. J. LAND USE & ENVTL. L. (forthcoming 2002).

107. This assumption appears in Wilderness Act jurisprudence. See Sierra Club v. Lyng, 662 F. Supp. 40, 18 ELR 20064 (D.D.C. 1987) (the Forest Service has affirmative duty to demonstrate that wilderness pest control program which required the destruction of trees was necessary to prevent spread of pest outside the wilderness area).

108. Jonathan S. Adams, Biodiversity: Our Precious Heritage, in PRECIOUS HERITAGE: THE STATUS OF BIODIVERSITY IN THE UNITED STATES 17 (Bruce A. Stein et al. eds., 2000).

109. Gregory H. Aplet, On the Nature of Wilderness: Exploring What Wilderness Really Protects, 76 DENV. U. L. REV. 347, 355 (1999).

110. See THE GREATER YELLOWSTONE ECOSYSTEM: REDEFINING AMERICA'S WILDERNESS HERITAGE (Robert B. Keiter & Mark S. Boyce eds., 1991).

111. PUBLIC LAND LAW REVIEW COMM'N, ONE-THIRD OF THE NATION'S LAND: A REPORT TO THE PRESIDENT AND TO CONGRESS (1970).

112. FINAL REPORT OF THE NATIONAL WATER COMM'N, WATER POLICIES FOR THE FUTURE (1973).

113. Peter M. Morrisette, Conservation Easements and the Public Good: Preserving the Environment on Private Lands, 41 NAT. RESOURCES J. 373 (2001).

114. See Barton H. Thompson Jr., The Endangered Species Act: A Case Study in Takings and Incentives, 49 STAN. L. REV. 305 (1997).

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