The Applicability of Nuisance Law to Invasive Plants: Can Common Law Liability Inspire Government Action?
By Justin Pidot
INTRODUCTION
There is a compensation in the distribution of plants, birds, and animals by the God of nature. Man's attempt to change and interfere often leads to serious results.
- Rep. John Lacey (R-Ind)
Long before pollution and endangered species gained their primacy in American environmental law, scientists and politicians recognized the danger of invasive non-indigenous species (“NIS”). Indeed, in 1900, almost seventy years before the enactment of most major environmental statutes, Congress passed the Lacey Act to protect native wildlife from encroachment by imported species. Years later, in President Carter's first statement on environmental policy, he issued a sweeping executive order to “restrict the introduction of exotic species into [federal lands, and] . . . encourage the States, local governments, and private citizens to prevent the introduction of exotic species into natural ecosystems of the United States.” President Clinton issued an updated executive order, creating the National Invasive Species Council (“NISC”), which promulgated a National Invasive Species Management Plan in 2001. Also during the Clinton Administration, Congress passed the Alien Species Prevention and Enforcement Act, its successor, the National Invasive Species Act, and the Plant Protection Act. In addition, numerous spending bills, organic statutes, and related environmental and non-environmental laws provide tools to the twenty-one government agencies within ten cabinet-level departments that have authority relating to the control of invasive NIS.
On its face, that seems like a lot of law. Yet commentators, and even the government itself, see current management and containment efforts as largely inadequate. In part this is because no federal statute or regulation comprehensively addresses the invasive NIS problem, especially in the terrestrial context. While some vectors of invasive NIS introduction and propagation defy constraint--it is hard to imagine the government agency that could effectively stop wind-borne pollen-- legislation and regulation can create barriers to the spread of invasive NIS, especially those introduced intentionally for horticultural or aesthetic purposes.
While all of this law has moldered on library shelves, the invasive species problem has become more acute. Population expansion, increasingly rapid movements of people and goods, and pervasive environmental alterations have increased the rate at which new species are brought into the United States, as well as the likelihood that they will gain purchase in naturally occurring ecosystems. Increasing trade with Russia and China, both of which have a diversity of climates that mirror our own, enhance the United States' future danger. Our many trading partners, finding opportunity in the American hunger for the novel, have flooded United States marketplaces with many varieties of foreign species: new flowers for the yard and new pets for the home, as well as commercial medicinal and food crops. Between 1992 and 2002 alone, the number of wildlife species imported into the United States jumped from 200,000 to more than 352,000. Along with this mass migration has come a host of unintended stowaways, including the infamous virus that led to the Monkey Pox outbreak in 2003.
While outbreaks of human disease may make national headlines, this Note concerns primarily the less well-known impact of invasive NIS on conservation land. No bright line exists between land that has already been invaded and that which remains pristine: after centuries of agricultural development, inter-continental travel, and people trying to make their homes just a little more homey (for example, settlers introduced the starling out of a longing for the old country), few if any ecosystems in the United States are made up entirely of species that evolved within their confines. However, invasive NIS impose costs even on land with only vestiges of native flora and fauna; in 2002, the Department of Agriculture's Animal and Plant Health Inspection Service (“APHIS”) removed or dispersed 2.7 million starlings, primarily at dairies and feedlots--hardly pristine environments. This Note focuses on introduction, rather than management, and in particular on preventing the introduction of invasive NIS into lands with relatively intact native ecosystems and thus high conservation value (“HCV” land). HCV land is becoming increasingly rare, and where native ecosystems have not succumbed to development pressure, invasive NIS exact a heavy toll. Unsurprisingly, the threat of invasive NIS tracks closely the history and intensity of human use. A recent study of California native and invasive biodiversity identifies less developed and more remote areas as the bastions for native plants.
The task of identifying HCV land is only made more difficult by the fact that no comprehensive inventory exists of United States biodiversity, either native or invasive. Despite this profound uncertainty about what tracts of land are most at risk from invasive NIS, the economic data available indicates that the costs of failing to act are staggering. One recent study indicates that invasive NIS cause approximately $137 billion a year in economic damages--and this does not include any valuation of environmental, recreational, or aesthetic harms.
In the context of the daunting challenge of constraining and managing the encroaching hordes, this Note has a modest goal: exploring the possibility of one legal strategy (nuisance law) to prevent future introductions of invasive plants, and whether such a strategy might affect the legislative landscape. Invasive plants are a logical place to focus legislative efforts because they are the group most likely to be introduced intentionally, often by individuals, developers, and corporations trying to beautify their property.These wide-spread, intentional introductions create legal opportunities for those concerned with the integrity of ecosystems.
In Section II, I describe the extent of the invasive plant problem and its economic and biological costs and provide a sketch of existing federal law and its under-implementation. Section III takes a close look at public and private nuisance doctrine and concludes that the invasive plant problem can fit comfortably within the existing case law. This Note makes no pretensions that nuisance law provides a complete solution to the invasive NIS problem, but it may be the best way to protect HCV land.
Section IV identifies some of the cognitive and economic failures that have led to such poor performance by federal policy-makers, despite a century of lip-service to the goal of preventing the incursion of nonnative species. These failures are complex and difficult to overcome. However, Section IV identifies ways that successful (and possibly unsuccessful) nuisance suits can help generate comprehensive regulation.
There is a compensation in the distribution of plants, birds, and animals by the God of nature. Man's attempt to change and interfere often leads to serious results.
- Rep. John Lacey (R-Ind)
Long before pollution and endangered species gained their primacy in American environmental law, scientists and politicians recognized the danger of invasive non-indigenous species (“NIS”). Indeed, in 1900, almost seventy years before the enactment of most major environmental statutes, Congress passed the Lacey Act to protect native wildlife from encroachment by imported species. Years later, in President Carter's first statement on environmental policy, he issued a sweeping executive order to “restrict the introduction of exotic species into [federal lands, and] . . . encourage the States, local governments, and private citizens to prevent the introduction of exotic species into natural ecosystems of the United States.” President Clinton issued an updated executive order, creating the National Invasive Species Council (“NISC”), which promulgated a National Invasive Species Management Plan in 2001. Also during the Clinton Administration, Congress passed the Alien Species Prevention and Enforcement Act, its successor, the National Invasive Species Act, and the Plant Protection Act. In addition, numerous spending bills, organic statutes, and related environmental and non-environmental laws provide tools to the twenty-one government agencies within ten cabinet-level departments that have authority relating to the control of invasive NIS.
On its face, that seems like a lot of law. Yet commentators, and even the government itself, see current management and containment efforts as largely inadequate. In part this is because no federal statute or regulation comprehensively addresses the invasive NIS problem, especially in the terrestrial context. While some vectors of invasive NIS introduction and propagation defy constraint--it is hard to imagine the government agency that could effectively stop wind-borne pollen-- legislation and regulation can create barriers to the spread of invasive NIS, especially those introduced intentionally for horticultural or aesthetic purposes.
While all of this law has moldered on library shelves, the invasive species problem has become more acute. Population expansion, increasingly rapid movements of people and goods, and pervasive environmental alterations have increased the rate at which new species are brought into the United States, as well as the likelihood that they will gain purchase in naturally occurring ecosystems. Increasing trade with Russia and China, both of which have a diversity of climates that mirror our own, enhance the United States' future danger. Our many trading partners, finding opportunity in the American hunger for the novel, have flooded United States marketplaces with many varieties of foreign species: new flowers for the yard and new pets for the home, as well as commercial medicinal and food crops. Between 1992 and 2002 alone, the number of wildlife species imported into the United States jumped from 200,000 to more than 352,000. Along with this mass migration has come a host of unintended stowaways, including the infamous virus that led to the Monkey Pox outbreak in 2003.
While outbreaks of human disease may make national headlines, this Note concerns primarily the less well-known impact of invasive NIS on conservation land. No bright line exists between land that has already been invaded and that which remains pristine: after centuries of agricultural development, inter-continental travel, and people trying to make their homes just a little more homey (for example, settlers introduced the starling out of a longing for the old country), few if any ecosystems in the United States are made up entirely of species that evolved within their confines. However, invasive NIS impose costs even on land with only vestiges of native flora and fauna; in 2002, the Department of Agriculture's Animal and Plant Health Inspection Service (“APHIS”) removed or dispersed 2.7 million starlings, primarily at dairies and feedlots--hardly pristine environments. This Note focuses on introduction, rather than management, and in particular on preventing the introduction of invasive NIS into lands with relatively intact native ecosystems and thus high conservation value (“HCV” land). HCV land is becoming increasingly rare, and where native ecosystems have not succumbed to development pressure, invasive NIS exact a heavy toll. Unsurprisingly, the threat of invasive NIS tracks closely the history and intensity of human use. A recent study of California native and invasive biodiversity identifies less developed and more remote areas as the bastions for native plants.
The task of identifying HCV land is only made more difficult by the fact that no comprehensive inventory exists of United States biodiversity, either native or invasive. Despite this profound uncertainty about what tracts of land are most at risk from invasive NIS, the economic data available indicates that the costs of failing to act are staggering. One recent study indicates that invasive NIS cause approximately $137 billion a year in economic damages--and this does not include any valuation of environmental, recreational, or aesthetic harms.
In the context of the daunting challenge of constraining and managing the encroaching hordes, this Note has a modest goal: exploring the possibility of one legal strategy (nuisance law) to prevent future introductions of invasive plants, and whether such a strategy might affect the legislative landscape. Invasive plants are a logical place to focus legislative efforts because they are the group most likely to be introduced intentionally, often by individuals, developers, and corporations trying to beautify their property.These wide-spread, intentional introductions create legal opportunities for those concerned with the integrity of ecosystems.
In Section II, I describe the extent of the invasive plant problem and its economic and biological costs and provide a sketch of existing federal law and its under-implementation. Section III takes a close look at public and private nuisance doctrine and concludes that the invasive plant problem can fit comfortably within the existing case law. This Note makes no pretensions that nuisance law provides a complete solution to the invasive NIS problem, but it may be the best way to protect HCV land.
Section IV identifies some of the cognitive and economic failures that have led to such poor performance by federal policy-makers, despite a century of lip-service to the goal of preventing the incursion of nonnative species. These failures are complex and difficult to overcome. However, Section IV identifies ways that successful (and possibly unsuccessful) nuisance suits can help generate comprehensive regulation.
