Frayed seams in the "patchwork quilt" of American federalism: an empirical analysis of invasive plant species regulation.

• Author: McCubbins, James S. Neal

1. INTRODUCTION A. Federal Laws B. State Laws II. AN EMPIRICAL ANALYSIS OF INVASIVE PLANT REGULATION A. Differentiating 'Noxious" and "Invasive Plants". 1. Fidelity 2. Latency 3. Interpreting the Results for Fidelity and Latency 4. Typologies of Invasive Species Regulation B. States, Structures, and Typologies 1. Nebraska 2. Kansas 3. Illinois 4. Indiana 5. California 6. Florida 7. New Hampshire 8. Connecticut 9. Massachusetts III. RECOMMENDATIONS AND CONCLUSION A. Ex Ante Solutions 1. Formalizing Invasive Species Councils within State Government 2. Regulatory Precision in Defining Invasive Species B. Ex Post Liability: Internalizing the Social Costs C. Concluding Thoughts I. INTRODUCTION

   Invasive species are not well managed in this country. Determining the true economic costs associated with invasive species is difficult; (3) yet, researchers have estimated that corrective expenditures and other lost revenues exceed $120 billion annually (4) and, unfortunately, most of these expenses are absorbed by the public. In most instances, necessary control measures are not in place prior to a species naturalizing in a given ecosystem. (5) Invasive species most often outcompete their native counterparts for resources within an ecosystem, (6) resulting in the need for remedial measures in order to preserve ecosystem stability for other flora and fauna (7) As some studies have shown, the cost of preventing invasive species from initially establishing a presence is far less than the cost of remedial measures. (8) However, despite "[a]n ounce of medicine [being] worth a pound of cure," (9) our empirical study provides strong evidence that most states within the United States fail to even consider "medicine," and instead undertake reactionary measures, resulting in significant underregulation of most invasive plants, while overregulating many plants that lack invasive characteristics.

   While the word "invasive" inherently holds a negative connotation, (10) many of these problematic species have been introduced to various regions under the auspices of "good intentions." (11) Consider, for example, the inrotduction of Asian carp (12) into the southern United States and their subsequent migration towards the Great Lakes region. As voracious algae eaters, scientists intentionally introduced Asian carp for the dual purpose of helping keep aquaculture and wastewater treatment facilities clean and as a means of providing fresh fish to fish markets. (13) Despite the benefits of these fresh-water fish, flooding allowed them to escape into the wild, where they currently threaten not only native ecosystems and fish populations, but also a multi-billion dollar fishing industry in the Great Lakes region. (14) Not to be outdone, plants have also played their part in exacerbating the invasive species challenge. Kudzu (Pueraria montana var. lobata), originally a native plant to China and Japan, had been promoted in the late 1800s as an ornamental species in the United States. (15) By the 1930s, the species was found to have excellent properties for erosion control, (16) and the government not only encouraged people to use it, but subsidized its propagation by providing more than 85 million seedlings and paying $19.75 for each hectare planted. (17) Proponents of kudzu during this period advocated its versatility as fodder for livestock, a hay crop, and for use in manufacturing starch, paper, and other cloth products. (18) Although the United States government eventually reversed its kudzu-promoting policies, the plant species was already well-established in the southeastern United States, (19) exhibiting its apt monikers of "Mile-a-Minute Vine" and "The Vine that Ate the South." (20) Much like Asian carp, kudzu has the ability to outgrow and outcompete native species. (21) In fact, in many instances the rapidly growing vine uses native vegetation and surrounding structures to secure vantage points for increased sunlight. (22) Despite its varied uses as forage for animals, food for human consumption, erosion control, and ornamentation, kudzu was nationally recognized as a weed by 1970. (23) The aggressively invasive species took nearly 100 years of naturalization, establishment, and promotion before it became identified as a harmful plant by the federal government (24)--action almost unrecognizable as responsive, much less preventive.

   The Energy Policy Act of 2005 charted an initial technology-forcing course for annually increasing the amount of renewable fuels blended into American gasoline supplies--requiring 7.5 billion gallons by 2012. (25) As the industry made significant progress, and even exceeded the initial mandates, Congress readjusted the goal and expanded blending requirements under the Energy Independence and Security Act of 2007. (26) The revised Renewable Fuel Standard extended the program's annual increases through 2022 and set a lofty goal of 36 billion gallons by 2022. (27) As a result of these ever-increasing mandates, the biofuel industry is searching for, or in some cases attempting to genetically engineer, plant species capable of increased biomass production, with desirable traits such as rapid growth, the ability to outcompete local vegetation, prolific seed production, increased tolerance to a variety of soils and climatic conditions, a strong resistance to plant pests and diseases, and a lack of predators in the recipient ecosystem-traits shared by many common invasive plants. (28) Yet, current wide-spread invasions of animal and plant species, such as the Asian carp and kudzu, serve as glaring warnings of what an uninformed rush to proliferate invasive biofuel feedstocks might look like. Thus, we must ask whether our regularly system is properly prepared to meet federal biofuel mandates and address the potentially invasive nature of emerging biofuel feedstocks.

   To some degree, the United States' federalist system of government allows species invasion to occur due to states' differing interests and regulatory focuses. Traditionally recognized as being more capable of handling local issues, states have sovereign authority to enact laws for the health, benefit, and welfare of their citizens--a principle known as subsidiarity. (29) Under this principle, "where families, neighborhoods, churches, or community groups can effectively address a given problem, they should. Where they cannot, municipal or state governments should intervene. Only when the lower bodies prove ineffective should the federal government become involved." (30) Invasion ecology harmonizes with this premise--as there are many factors involved invasive plant species determination, such as soil composition, (31) climate conditions, (32) natural predators, (33) and others (34) --recognizing that an invasive plant may not be invasive in all conditions.

   The United States, due to its large landmass and wide geographical and topographical variation, has numerous climate zones and soil compositions. (35) In combination with climatic realities, geo-political boundaries assist in fixing several different ecological systems within state boundaries. (36) A recent study identified nearly 600 different ecological systems for the United States, (37) where more than one state possessed in excess of 100 unique ecological systems within its borders. (38) The rich diversity of these ecological systems results in many different habitats with unique traits. (39) These "ecoregions" (40) have several distinct ecological systems that share many of the species, communities, and environmental conditions contained within them. (41) Aggressive invasive plant species have the ability to adapt to many different ecoregions by generating monocultures through rampant propagation and by outcompeting native species. (42) However, not all invasive plant species are suited or adaptable to every ecosystem (43) and, to some extent, the ecological composition of the system acts as a natural defense against these invasive species. (44) Because of the broad variations of soil, climate, elevation, and other variables, an "invasive plant" in one region may not constitute a problem in another region of the same state. Thus, the principle of subsidiarity would suggest that the localities threatened by the invasive plant species should provide their best efforts to control local problem species before the state should assist (e.g., through local ordinances and preventive measures). (45) However, where a particular plant species poses a risk throughout the entire state and local efforts are ineffective, state legislation and enforcement would be necessary. Where a plant species poses a risk throughout the entire United States, federal regulations and cooperation should be forthcoming.

   The U.S. legal system, developed more than 250 years ago, initially began under the premise that sovereignty is split between several state governments and a national government. Under the U.S. Constitution, the citizens of the newly formed nation granted certain enumerated powers to the federal government, (46) while non-delegated powers remained with the states or the people. (47) Reserving plenary power, states had authority to create, enforce, and rule upon the legitimacy of laws through their own independent state constitutions and laws. (48) Yet, the power of each state could only reach so far, due to the supremacy of the Constitution and the need to create a cohesive, united people. (49) In the hundreds of years that have passed, the federalist system has undergone major changes. Two different political theories have had a heavy influence on the development of U.S. federalism: dual federalism (50) and cooperative federalism. (51) Dual federalism takes the approach that the state and federal governments are co-equal in authority, (52) that states hold plenary powers, and that the federal government is limited to those powers enumerated in the Constitution. (53) Alternatively, cooperative...