Legal Tools That Provide Direct Protection for Elements of Biodiversity

• Author: Robert B. McKinstry Jr., James McElfish, Michael Jacobson, and Derald J. Hay
• Pages: 227-255

Chapter 18

Legal Tools That Provide Direct

Protection for Elements of

Biodiversity1

by Robert B. McKinstry Jr., James McElfish, Michael

Jacobson, and Derald J. Hay

I. Introduction: The Historical Development of Direct Protection of

Biodiversity

The most powerful tool available to states seeking to protect biodiversity is

to use their regulatory powers to protect elements of biodiversity directly.

The federal government and all 50 states have enacted a variety of laws to

protect wildlife, fish, threatened and endangered animals and plants, and

other elements of biodiversity. These laws have evolved in three waves,

starting with a series of laws emerging out of the Conservation Movement at

the turn of the 19th and 20th centuries.

In this first wave, the federal government and most states enacted hunting

and fishing laws to protect fish, game, and wildlife from overhunting that

had reduced many large species, such as the buffalo and even the white-

tailed deer, to a point where they would be considered endangered today.2

227

1. Some of the discussion in this chapter has been adapted from an analysis of

laws prepared by James McElfish, an analysis of methods for land protection

prepared by Robert B. McKinstry Jr., and Michael Jacobson, and an analysis of

best management practices and best stewardship practices prepared by

McKinstry, Emily B. Schwartz, and Curtis P. Wagner for the Pennsylvania

Biodiversity Partnership (PBP) and the Pennsylvania Department of Conser-

vation and Natural Resources (PDCNR) and is used by their permission. The

three articles are identified on the PBP website at http://www.pabiodiversity.

org and will be posted on the website in the future. The views expressed here

are solely those of the authors and should not be deemed to represent the views

of either the PBP or the PDCNR.

2. See, e.g.,William T. Hornaday, Our Vanishing Wild Life: Its Exter-

mination and Preservation (New York Zoological Society, William T.

Hornaday ed., 1913) (surveying status of species and state game laws).

During this time, federal and state fish and game agencies were created to

enforce and administer new fish and game laws that used the states’ regula-

tory powers and ownership rights in fish and wildlife to protect these spe-

cies directly. For example, the Pennsylvania Game Commission was cre-

ated in 1895.3This period also saw the development of laws addressing

weeds that, although aimed to protect agriculture, also addressed threats

from invasive species.

The second and most far-reaching wave of regulatory activity occurred

during the environmental decade of the 1970s, during which time the basic

structure of American environmental law emerged. Many of these laws ad-

dressed threats to biodiversity,such as air pollution, water pollution, and im-

proper waste disposal, and extended protection to biodiversity by command-

ments to establish emissions limitations that protected the environment, in-

cluding habitat and biota. This period also witnessed the expansion of laws

using regulatory powers to protect endangered species directly, through the

enactment of the Endangered Species Act (ESA),4as well as a variety of

laws directly protecting important habitats, such as the Coastal Zone Man-

agement Act5or §404 of the Clean Water Act (CWA), protecting wetlands.6

As a result of these two waves of environmental and natural resource legisla-

tion, five distinct types of regulatory laws emerged that protect biodiversity

directly: (1) fish and wildlife laws; (2) endangered species laws; (3) laws

protecting special habitats using a regulatory structure; (4) environmental

assessment laws, modeled on the National Environmental Policy Act

(NEPA)7but having substantive content; and (5) laws regulating particular

threats to health and the environment, such as the CWA,8that protect

biodiversity pursuant to a more general mandate to protect the environment.

The modern era has involved efforts to coordinate these strategies interna-

tionally with a view toward protecting multiple examples of habitat types,

characterized by the strategy contemplated by the United Nations Conven-

tion on Biological Diversity,9international environmental group strategies,

228

Biodiversity Conservation Handbook

3. See infra Chapter 31.

4. 16 U.S.C. §§1531-1544, ELR Stat. ESA §§2-18.

5. Id. §§1451-1465, ELR Stat. CZMA §§302-319.

6. 33 U.S.C. §1344.

7. 42 U.S.C. §§4321-4370f, ELR Stat. NEPA §§2-209.

8. 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607.

9. Convention on Biological Diversity of the United Nations Conference on the

Environment and Development, art. 6 (a), opened for signature June 5, 1992,

U.N. Doc. DPI/1307, reprinted in 31 I.L.M. 818 (1992), available at http://

www.biodiv.org/convention/articles.asp (last visited May 25, 2005). The

United States has signed, but remains one of the few nations of the world and

the only major nation which has not ratified the convention. (The others are