Biodiversity and the Law.

• Author: Blaustein, Richard J.

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

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

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

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

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