The Paradox of United States Alien Species Law

Abstract:     
United States law addressing non-indigenous species (NIS) presents a paradox. The best way to summarize U.S. non-indigenous species law is to say that at the federal level there is very little statutory law, and for important dimensions of the NIS problem, including identifying new NIS invasions, tracking the impact of known harmful invasive species, and responding to emerging threats, there is none. The law of the various U.S. states is even easier to summarize: with a few interesting exceptions, including NIS legislation in Hawaii and Minnesota, most U.S. states at best offer a weak echo of the general aspects of federal statutory law.

Oddly, the second best way to summarize U.S. non-indigenous species law is to say that there is a ton of it. This view would point to the many dozens of federal statutes that are relevant, or might be relevant, to NIS issues. It would point to the dozens of federal agencies and hundreds of state agencies that have responded to alien species issues under various kinds of legal authority, including general organic acts for the supervisory agency and annual appropriations bills. High on the list of evidence supporting the view that invasive species have a broad presence in U.S. law would be two presidential Executive Orders addressing NIS: a 1977 Executive Order issued by President Carter and a 1999 Executive Order issued by President Clinton.

One way to resolve the paradox is to shift the question from "What laws apply to NIS?" to "What legal authority should exist to deal with harmful NIS, and what purposes would a new or different set of NIS laws serve?" From the perspective of coherent law and policy, it is relatively easy to identify the gaps in U.S. federal and state law. The chapter concludes that NIS pose a sufficient threat to justify their separate recognition in positive law, including the structural, substantive, public, and funding issues that such legal identification would generate. At a minimum, as a matter of coherent law and policy, a single, organic NIS law should be articulated, and that model then used to assess gaps in actual current legal authority.

Keywords: environment, environmental policy, environmental law, natural resources, invasive species, nonindigenous species, harmful invasive species, alien species

Accepted Paper Series