Environmental Law

We’ve all heard about it, but few of us really understand why this piece of legislation from the 1970s is so important—and why it may now require protection itself.

This Article reviews the authority of federal and state governments to manage wildlife on federal lands. It describes the most common assertions made by state governments regarding state powers over wildlife and then analyzes the relevant powers and limitations of the U.S. Constitution and federal land laws, regulations, and policies.

The Convention on International Trade in Endangered Species of Flora and Fauna (CITES) attempts to protect African elephants by banning nearly all international trade in ivory. Despite decades of strict regulation, poachers rapaciously kill thousands of elephants each year due to an economic phenomenon known as the tragedy of the commons. Although government regulation of an open-access resource is a recognized means of resolving a common’s dilemma, this approach fails when the resource’s stakeholders have little incentive to enforce or comply with such regulation. CITES has clung to Western perspectives of the elephant even though the primary consuming and producing states of ivory are in Africa and East Asia. The West sees the very consumption of ivory as archaic and inhumane. However, many in Africa and East Asia see those values as alien and imperialistic. These peoples have few incentives to follow centralized conservation policies embedded with cultural imperialism. CITES needs a radical new approach to save the African elephant. CITES should lift the international ban on the ivory trade and promote community and private property rights in African elephants to ensure the species' survival. This approach could simultaneously save the African elephant and satisfy the needs and desires of local peoples. This Article demonstrates that this approach is ethically justifiable from rights and utilitarian based systems of animal ethics.

For centuries, hybridization was a poorly understood evolutionary process thought to be a threat to endangered species. With the advent of genomic technologies, many of those prevailing views are starting to change. Hybridization has become recognized as a key evolutionary process vital for the formation and continued persistence of many species today. However, our current legal system of protection for endangered populations under the Endangered Species Act (ESA) fails to take many of the modern nuances of evolutionary biology into consideration. Despite calls for a defined, explicit “hybrid policy” since the early 1990’s, US Fish and Wildlife Service and the National Marine Fisheries Service have failed to remedy this problem, instead choosing to apply a case-by-case approach with no guidance or overarching policy. With the advent of these new technologies, many of the species we are currently protecting could technically be unsuitable for protection based on a rigid interpretation of the ESA. To continue to meet the goal of the ESA, a defined hybrid policy - such as the one presented here - must be adopted. Such a policy must take into consideration both the twin aims of protecting genetic lineages and protecting ecosystems, all while moving away from a rigid view of taxonomy. In a time of political uncertainty regarding the fate of the ESA and other key environmental litigation, adopting a policy that clarifies this source of legal murkiness, allowing all sides to come to the same table for discussion, is more vital than ever.

In this paper, I argue that genetic engineering can facilitate the recovery of biodiversity. Our actions have already permanently modified “natural” genomes, and many of our management strategies clearly impinge upon the “wildness” of these species. With this in mind, taking a more informed and active role in that modification, limiting the temporal scope of management, is important for the future of wildlife conservation. Additionally, even though the Coordinated Framework does a poor job regulating conservation engineering, the ESA could provide regulatory oversight for the creation and release of these organisms through the use of: (1) scientific recovery permits; (2) the Controlled Propagation regulations; (3) the 10(j) experimental population procedures; and (4) special 4(d) rules. I conclude by making recommendations to improve this oversight and suggest factors to guide the Services in using these technologies.

The lion (Panthera leo) is featuring ever more prominently on the agendas of international wildlife treaties like the Convention on International Trade in Endangered Species (CITES) and the Convention on the Conservation of Migratory Species of Wild Animals (CMS). Lion range and numbers have declined markedly over the last two decades. In this review we assess the present role of international wildlife treaties with a view to improving their combined contribution to the conservation and sustainable use of lions. Our analysis identifies a substantial body of relevant international wildlife law and, moreover, a significant potential for enhancing the contribution to lion conservation of these global and regional treaties. The time is right to invest in such improvements, and our review renders a range of general and treaty-specific recommendations for doing so, including making full use of the Ramsar Wetlands Convention, World Heritage Convention and transboundary conservation area (TFCA) treaties for lion conservation. The CMS holds particular potential in this regard and our analysis provides strong support for listing the lion in its Appendices.

The Endangered Species Act (ESA) is a polarizing statute that imposes seemingly uncompromising mandates. But this Article demonstrates that the ESA actually provides rich opportunities for collaborative governance. In exploring this underappreciated success story, we document how conservation collaboration adapts otherwise strict, generic prohibitions to the recovery needs of individual species on the brink of extinction. We identify conditions under which collaboration arises.
This Article examines the nearly two hundred ESA protective regulations that tailor federal restrictions to the ecological and social circumstances of particular extinction threats. Our original empirical study explores how the rules manifest collaborative governance, as well as the extent to which they promote imperiled species recovery. We focus on provisions in which parties agree to constrain activities in exchange for limited statutory liability. Almost three-quarters of protective regulations substitute practice-based limitations for difficult-to-detect, proximate-effect prohibitions.