Marc Miller

Emory Law School, Professor

Biological control involves intentional decisions about invasions.

Thesis

Because biological control concerns intentional introductions, usually by experts, if we cannot agree on sensible policies for biocontrols, it is unlikely we can develop sensible policy for less formal intentional introductions or accidental invasions.

Biological controls are invasions.
They are developed and intended to have the characteristics of the worst pests (and host shifts can happen). The weed control community is way out in front on asking good questions. The zeal of using alien agents to control native pests is frightening.

There is a lack of recognition that biocontrols are invasions

• There is a complete absence of legal literature on biological controls.
• Biological literature largely fails to recognize that biocontrols, like unwanted invaders, violate ecosystem integrity.
• Popular and technical press characterize biocontrol in only positive terms.

• Does the activity have substantial potential costs?
• Are those costs adequately considered by market forces?
• If not, are those costs adequately considered by current law, regulations, or professional practice?
• If not, can current laws and practices be amended, or is a new law necessary?

• Quarantine and inspection acts: plant pest act, noxious weed act
• Barrier and Exclusion Acts: Lacey Act (black list of injurious wildlife)
• Protective Acts: Endangered Species Act

• Focus on borders
• After the fact of identifying noxious species and endangered species
• Not oriented to central concerns like development of knowledge or responsiveness to invasions

• protection of sound biocontrol research and programs
• limitation of tort liability
• Echium 8-year delay in Australia, 2 current possible lawsuits in US
• focus for additional funding
• opportunity of biocontrol researchers to contribute to emerging models of environmental management (choices are conscious and specific)

• came early in President Carter's first year
• only federal provision with spirit of AGCI invasions session
• over 15 years ago
• quickly isolated, and soon forgotten
• its origins and some possible reasons for its limited impact were discussed
• are we ready for 11987 today?

Policy Goals for Biocontrol and Invasions Laws

• collect information for research, decision
• making, general policy, and education
• decide what is acceptable and what is not-what is "natural enough"
• reduce harmful introductions
• support biological diversity (in its multiple forms)
• respond to harmful introductions quickly
• develop rational control programs

• process acts: like Australia's peer review process
• information and data sources: (Coulson, 1992) for whom and for what purpose?
• substantive preferences
• funding and policies for (a) stages of invasions and (b) types of areas
• education

• black, white, gray, and rainbow lists: its possible to have a rainbow policy; white list as champion of commerce; preferences and presumptions; the "need to know more" category
• oppose use of alien organisms on native pests
• requirement of assessment of harmfulness of pest and alternative strategies

• wide use of model acts in other areas
• current benefits: coherent statement of problem and goal; rally support
• mid-term benefits: points of citation; gradual development of sound policy and support; use by states or other countries
• long-term benefits: ready when needed (when another zebra- mussel type problem arises)

• the fondness for discretion by experts and agencies and recognition in law of judgment and special cases
• lessons of the listing acts
• a Man For All Seasons: the law is an imperfect shield-but it can be a shield; the law is an imperfect sword-but it can be a sword.

• assumption (fallacy) of impact: entrenchment; laws as social tools, subject to social context; the same words at different times will have different effects
• the effects of novelty and decay
• ground up reform as a tool for evaluating current law
• ground up reform and incremental reform are not inconsistent

There is no requirement of an Environmental Impact Statement (EIS) for introducing an organism; it's at the discretion of the agency involved. When there is a proposal to eradicate an organism, on the other hand, it can require an Environmental Assessment (EA) or an EIS.

The Carter Executive Order doesn't apply to species movement within the US outside of their native range-only to species from outside the US coming in or natives going out. Executive orders are directives, not laws; and they don't expire.

How to deal with invasive species is a policy decision worthy of public notice and comment; it shouldn't happen in the basement of some agency.

Besides writing new legislation, another possibility is to get the Clinton Administration to implement the Carter Executive Order. Most people involved in this industry do not want regulation. How do we get the nursery and pet industries to see regulation as in their interest? One answer: as states set conflicting regulations, it might be in their interest to support federal legislation. We must build relationships with these industries, and bring them in early in the process. Liability issues are key for these industries (sales of plants on the noxious weed lists and potential liability for selling them). Predictability is important for them too; volatility makes them nervous. The political process will take years. What is the next step?

A draft five year plan
Statement of principle; model act; local database and experts; local media.

This is not a subtle concept. It should not be difficult to implement in policy. When the invader is clear (like kudzu, etc.), people are aware and they respond. When you're looking at changes in complex ecosystems, it's more difficult.

The above presentation by Marc Miller set the stage for the group's effort to draft a model law concerning harmful non-indigenous species. A copy of this draft law, currently under continuing development, is an appendix to the report for AGCI's Session III.

Policy strategies in pursuit of ecosystem integrity:

• policies aimed directly at integrity (i.e., purchase, protection to change status of land)
• policies aimed at factors which threaten or support integrity

Puzzles in developing such policies

• It's hard to define ecosystems
• It's hard to prioritize ecosystems: hard to choose
• It's hard to measure losses and gains

• areas of biological and cultural significance
• biological measures versus cutting up the country into grids

Possibilities

• system in absence of humans
• at fixed points in human development
• what is natural enough?
• what would a native park look like?
• restoration ecology?
• how to explain to non-biologists?
• baseline for integrity?