Biodiversity and the Law. - book reviews

Ecology, Jan, 1997 by Douglas A. Henderson

As noted conservationist Aldo Leopold concluded in A Sand County almanac, the first rule of intelligent tinkering is to save every cog and wheel. The current legal and political approach for managing biological diversity, however, violates that rule. Today, virtually every element of the natural environment is being lost: species decline, communities decline, habitats dwindle, and ecosystems disappear. The current framework for assuring a biological future, in short, does not work, and the prospects of life without diversity should trouble even the most positive idealists. As anyone beyond the third grade knows, a world without diversity is a world without life.

Snape makes sense of these difficult issues with a collection of first-rate articles and essays on biological diversity law and policy. Snape's effort, a result of a Defenders of Wildlife conference held in March 1994, is not a typical legal treatise with nth-order footnotes and elegant, but impractical legal theories. Nor is it simply a rehash of the primary U.S. environmental law devoted to the topic, the Endangered Species Act (ESA). It is, instead, a testimony of wisdom on diversity as an ecological and legal topic, offering historical background, sharp analysis, and useful documentation on a wide range of related issues.

Just what is "biodiversity," and how does the legal system and its players treat biodiversity? That is the subject of the first section of the book. At its most literal level, according to Snape, biodiversity represents the variability of all natural life forms; at a more sophisticated level, biodiversity is the sum of all genes, species, habitats, and natural processes that constitute the very essence of existence on earth. For some, biodiversity represents a tangled web of nefarious ideas with absolutely no legal relevance. As developed throughout the book, however, the key legal question is not whether biodiversity is worthy of government regulation, but whether government offers the appropriate skill and framework to ensure and protect biological diversity throughout the future.

In the book's Foreword, Oliver Houck calls the concept of "biological diversity" the new organizing principle for life on earth. While the concept deserves close scrutiny as an organizing precept, Houck sees three problems preventing biodiversity from becoming the key framework: first, the lack of precision on what constitutes biological diversity; second, the lack of public awareness on what diversity actually is, and, third, the lack of mechanisms for incorporating the idea into human institutions so that, over time, life on earth remains biologically diverse. The problem with biodiversity as a legal and social concept, Houck concludes, is that in a world rife with streetshootings, grinding inequality and ethnic wars of extermination, it is hard to get worked up over "ecosystems."

Following Houck's wise take on the current situation, the book's first of four parts reviews the scientific and policy foundations of biodiversity and the law. Here, Molly Beattie, Director of the U.S. Fish and Wildlife Service, reviews the U.S. government's view of biodiversity and ecosystem management, but provides no persuasive evidence that the government's acts will make any progress toward these goals. In this section, Donald Waller analyzes the biodiversity concept as a basis for conservation and natural resources management. Waller marshalls strong evidence the ESA, by concentrating on individual species, actually vilifies species and stimulates increased polarization over the ultimate value of diversity. The ESA also wrongly concentrates on the furry and feathery charismatic "megafauna," Waller maintains, while ignoring the inconspicuous and endangered species. But it is also here we learn that concerns for biological diversity include broader ecological processes and landscape concerns, contrary to what many first-time observers would suspect.

The second section covers the current legal framework for handling and sustaining biological diversity. Early on in this section, Jason Patlis provides a first-rate overview of the ESA, noting that while "ecosystem protection" was mentioned numerous times in the legislative history of the Act, the concept of diversity - above and beyond concern for species - was never transposed into judicial interpretation or regulatory respect. Also in this section, Lindell Marsh offers a case study on the San Bruno Habitat Conservation Plan, an attempt at ecosystem management and intelligent natural areas planning. For Marsh, the key elements of this ecosystem planning program's success - at least current success - were the facilitation process itself, common technical support, and committed stakeholder involvement.

In one of the more enduring contributions of the book, Todd Olson makes a fundamental point: even if laws protecting biodiversity could be strictly enforced, a policy that sets the environment and private property fundamentally at odds cannot endure for long. For Olson, the common enemy of conservationists and landowners is an economic system that fails to take into account the social value of diversity - and that creates incentives to destroy biodiversity. What is needed, Olson suggests, is a system that values diversity just as it values tennis shoes. As a solution, Olson proposes the "habitat transaction method," which develops and interrelates biodiversity measurement and economic value in a regional setting.