Who is the invader? alien species, property rights, and the police power

Social Philosophy and Policy

Volumn 26, Issue 2, 2009, Pages 26-52

  Sagoff, Mark ^a  

^a UNIVERSITY OF MARYLAND   (United States)

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[No Author keywords available]

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EID: 70349209121     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S0265052509090165     Document Type: Article

References (140)

1. To determine that a species is "injurious," USDA completes a review process including the following steps: petition or initiation of an evaluation; notice for information; proposed rule; economic analysis; and final rule. For a flow chart annotating this process, see http://www.fws.gov/ contaminants/ANS/pdf-files/InjuriousWildlifeEvaluationProcessFlow Chart.pdf.
2. A complete list can be found in the Federal Register at http://www.fws.gov/contaminants/ANS/pdf-files/50CF-16-10-05.pdf.
3. Noxious Weed Regulations, 7 C.F.R. 360.200 (2008). The Plant Protection Act became law in 2000 as part of the Agricultural Risk Protection Act.
4. Daniel Simberloff, "Impacts of Introduced Species in the United States," Consequences 2, no. 2 (1996).
5. See also J. L. Ruesink, I. M. Parker, M. J. Groom, and P. M. Kareiva, "Reducing the Risks of Nonindigenous Species Introductions: Guilty Unless Proven Innocent," BioScience 45 (1995): 465-77.
6. Environmental Law Institute (ELI), Invasive Species Control: A Comprehensive Model State Law (Washington, DC: Environmental Law Institute, 2004). See p. 7. In a study published in May 2007, ELI reviews statutes state-by-state and finds that no state has fully adopted the "clean list" approach, although the study praises Michigan, in particular, where the law "encourages action because it does not require listing by the agency as a prerequisite to control actions. Similarly, the automatic declaration of all pests and pest hosts as a public nuisance provides a solid base for both avoiding compensation for control actions and for requiring abatement." Environmental Law Institute and the Nature Conservancy, "Strat egies for Effective State Early Detection/Rapid Response Programs for Plant Pests and Pathogens," published online May 2007.
7. An electronic retrievable copy (PDF file) of this report may be obtained at no cost from the Environmental Law Institute Web site, www.eli.org; click on "ELI Publications," then search for the "Strategies for Effective State Early Detection" report. Quotation at p. 50.
8. Environmental Law Institute, Invasive Species Control, 33. "A person owning private lands, waters or wetlands, or a person occupying private lands, waters or wetlands, or a person responsible for the maintenance of public lands shall control or eradicate all unpermit-ted introductions, populations or infestations of prohibited, restricted or regulated invasive species on the land."
9. Meg Filbey, Christina Kennedy, Jessica Wilkinson, and Jennifer Balch, Halting the Inva sion: State Tools for Invasive Species Management (ELI Project No. 020101, 003108) (Washington, DC: Environmental Law Institute, August 2002), 8. Available online at http://www2.eli.org/research/invasives/pdfs/d12-06.pdf.
10. The list of weeds "it is illegal to propagate, sell, or transport" in the Commonwealth of Pennsylvania can be found at http://www.agriculture.state.pa.us/agriculture/lib/agriculture/ plantindustryfiles/NoxiousWeedControlList.pdf.
11. State of Pennsylvania, Department ofAgriculture, "Noxious Weed Law Summary" (last modified January 18, 2007), http://www.agriculture.state.pa. us/agriculture/lib/agriculture/ plantindustryfiles/NoxiousWeedLawSummary.pdf.
12. Title 25, Chapter 10, Nebraska Administrative Code-Noxious Weed Regulations, http://www.agr.state.ne.us/regulate/bpi/actbb.htm.
13. Nebraska Administrative Code-Noxious Weed Regulations, http://www.agr.state.ne.us/regulate/bpi/actbb.htm Ibid.
14. Press Release, Nebraska Department of Agriculture, August 7, 2007, http://www.agr.ne.gov/newsrel/august2007/phragmites.htm.
15. State of Pennsylvania, Rules and Regulations, Department of Agriculture, [7 PA. CODE CH. 110] "Noxious Weeds" [27 Pa.B. 1793]; available online at http://www.pabulletin.com/secure/data/vol27/27-15/549.html.
16. The belief that a non-native "generalist" or "weedy" species must "crowd out" native species adapted to particular environments, while a consequence of prevailing theory, has little empirical support. The difference between "generalist" and " specialist" species indicates poles of a spectrum; no one has shown that biologists would agree, if tested, where on the spectrum each of a random selection of species would lie. The empirical evidence does not generally show that "weedy" species crowd out "specialists"; that they do seems to be a consequence of definitions. (If species A crowds out species B, then A is to that extent "weedy.") Suppose purple loosestrife is "r-selected" or "weedy." Substantial evidence suggests that it does not crowd out but actually improves habitat for other species. (Loosestrife was initially introduced to support honeybee populations.) For studies that demonstrate the beneficial role ofloosestrife in the natural environment, see, for example, M. G. Anderson, "Interactions between Lythrum Salicaria and Native Organisms: A Critical Review," Environmental Management 19 (1995): 225-31;
17. M. A. Treberg and B. C. Husband, "Relationship between the Abundance of Lythrum salicaria (Purple Loosestrife) and Plant Species Richness along the Bar River, Canada," Wetlands 19 (1999): 118-25.
18. Two researchers have concluded that ecologists "traced the history of purple loosestrife and its control in North America and found little scientific evidence consistent with the hypothesis that [it] has deleterious effects. Loosestrife was initially assumed to be a problem without actually determining whether this was the case. [T]here is currently no scientific justification for the control of loosestrife." H. A. Hager and K. D. McCoy, "The Implications of Accepting Untested Hypotheses: A Review of the Effects of Purple Loosestrife (Lythrum salicaria) in North America," Biodiversity and Conservation 7 (1998): 1069-79.
19. For further confirmation, see E. J. Farnsworth and D. R. Ellis, "Is Purple Loosestrife (Lythrum salicaria) an Invasive Threat to Freshwater Wetlands? Conflicting Evidence from Several Ecological Metrics," Wetlands 21 (2001): 199-209;
20. J. A. Morrison, "Wetland Vegetation before and after Experimental Purple Loosestrife Removal," Wetlands 22, no. 1 (2002): 159-69;
21. M. B. Whitt, H. H. Prince, and R. R. Cox, Jr., "Avian Use of Purple Loosestrife Dominated Habitat Relative to Other Vegetation Types in a Lake Huron Wetland Complex," The Wilson Bulletin 111 (1999): 105-14.
22. For discussion, see Ellen Frankel Paul, Property Rights and Eminent Domain (New Brunswick, NJ: Transaction Books, 1987), esp. chapter 2, "The Genesis and Development of Eminent Domain and Police Powers," 71-184.
23. In the agricultural cases discussed here, it is assumed that a major agricultural industry in a state (e.g., apples or citrus) is affected with a "public interest," not simply a private one. This assumption, which is reasonable, distinguishes these cases from Kelo v. City of New London, 545 U.S. 469 (2005), where it seems at least as plausible to suppose that only a private interest (that of certain developers) was served. Resolutions, 2 Va. Fruit 159, 165 (1914) [18th VSHS (Jan. 1914)]. Sections 891 and 892 stipulate the proceeding to "determine the amount of damages" and the method by which apple growers will be taxed to pay that amount.
24. James M. Buchanan, "Politics, Property, and the Law: An Alternative Interpretation of Miller et al. v. Schoene," Journal of Law and Economics 15 (1972): 438-52; quotation at 447-48.
25. According to Buchanan (ibid., 443), "what is relevant is the necessary place of compensation in the trading process between the two parties." Buchanan follows Justice Stone in mistak enly believing that no scheme for compensation was enacted by the state.
26. Miller v. Schoene, 276 U.S. 272 (1928).
27. William A. Fischel, "The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene," Review of Law and Economics 3, no. 2 (2007): 133-95; quotation at 134.
28. William A. Fischel, "The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene," Review of Law and Economics 3, no. 2 (2007): Ibid., 173.
29. The state also paid for cutting the trees, stacking the wood, and cleaning the area. For details, see Bowman v. Virginia State Entomologist, 128 Va. 351 (November 18, 1920).
30. Miller, 276 U.S. 272, 273. In Miller v. State Entomologist (146 Va. 175; 135 S.E. 813; 1926 Va.), the Virginia Supreme Court rejected several other reasons Dr. Casper Miller alleged as invalidating the law on constitutional grounds, among which were the vagueness or indefi-niteness of one of its uses of the term "locality" and the possibility that it empowered citizens (the farmers who complained about his trees) to make law.
31. Miller, 276 U.S. at 278.
32. Id. at 279.
33. Id. The Virginia Supreme Court had written, "The statute, so far as it relates to dam ages, is not clear, and we are to gather the intention of the legislature as best we can from a consideration of it as a whole." Miller v. State Entomologist, 146 Va. 175, 192 (1926).
34. The Virginia court construed compensation under the law to consist primarily in the state paying the costs of cutting, stacking the wood, and cleaning the area. "No doubt the legislature deemed such outlays as proper damages and expenses to be paid to the owner, if the circuit court deemed them proper" (id. at 193-94).
35. Miller, 276 U.S. at 278.
36. Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: University of Chicago Press, 1940), section 534, p. 565.
37. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985), 114.
38. Fischel, "The Law and Economics of Cedar-Apple Rust," 172. It is part of the brillianceof Fischel?s analysis that he shows in terms of the details of the enactment of the law and its subsequent enforcement that the moral hazard problem defeated the otherwise constitu tionally required payment.
39. The Virginia Cedar Rust Law, 1914 Va. Acts, p. 49 et seq., explicitly creates a fund paid for by taxes on apple growers to compensate the owners of especially valuable cedar trees. The relevant sections of the statute (sections 7 and 8) are reprinted in the Syllabus in Bowman v. Virginia State Entomologist, 128 Va. 351; 105 S.E. 141; 1920 Va.
40. The doctrine of average reciprocity of advantage was first stated by Justice Oliver Wendell Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
41. Corneal v. State Plant Board, 95 So. 2d 1, 6-7 (Fla. 1957).
42. Haire v. Florida Department of Agriculture and Consumer Services, 870 So. 2d 774, 782 (Fla.2004).
43. See Haire, 870 So. 2d 774 at 781, 783; and Miller, 276 U.S. at 279-80.
44. Bowditch v. Boston, 101 U.S. 16, 18 (1880).
45. See Haire, 870 So. 2d 774 at 785.
46. Lucas required that "South Carolina . do more than proffer the legislature?s declara tion that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim such as sic utere tuo ut alienum non laedas." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031 (1992).
47. Fischel, "The Law and Economics of Cedar-Apple Rust," 146.
48. Fischel cites Robert C. Ellickson, "Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls," University of Chicago Law Review 40 (1973): 730.
49. For a collection of papers to this effect, see B. N. McKnight, ed., Biological Pollution: The Control and Impact of Invasive Exotic Species (Indianapolis: Indiana Academy of Sciences, 1993).
50. Don C. Schmitz and Daniel Simberloff, "Biological Invasions: A Growing Threat," Issues in Science and Technology Online, Summer 1997, http://findarticles.com/p/articles/mi-qa3622/is-199707/ai-n8780169.
51. Daniel Simberloff, "The Biology of Invasions," in Daniel Simberloff, Don C. Schmitz, and Tom C. Brown, eds., Strangers in Paradise: Impact and Management of Non-Indigenous Species in Florida (Washington, DC, and Covelo, CA: Island Press, 1997), 3-17; quotation at 9.
52. Daniel Simberloff, Ingrid M. Parker, and Phyllis N. Windle, "Introduced Species, Policy, Management, and Future Research Needs," Frontiers in Ecology and the Environment 3, no. 1 (February 2005): 12-20; quotation at 14.
53. See also Daniel Simberloff, "Non-Native Species Do Threaten the Natural Environment," Journal of Agricultural and Environmental Ethics 18 (2005): 595-607.
54. Daniel Simberloff, D. C. Schmitz, and T. C. Brown, "Why Should We Care and What Should We Do?" in Simberloff, Schmitz, and Brown, eds., Strangers in Paradise, 359-67; quotation at 364. According to Simberloff, "many scientists argue that every species should be considered a potential threat to biodiversity and sustainability if it were to be intro duced. That implies that every species proposed for deliberate introduction, whether or not it appears superficially to be innocuous, necessitates some formal risk assessment."
55. Daniel Simberloff, "Nonindigenous Species-A Global Threat to Biodiversity and Stability," in Peter H. Raven and T. Williams, eds., Nature and Human Society: The Quest for a Sustainable World (Washington, DC: National Research Council, 1997), 329.
56. The theory that species coevolve to form ecosystems-fragile communities of highlyspecialized interrelated organisms-produced the metaphors of conservation biology that analogized ecological communities to delicate machines. Paul Ehrlich analogized species to "rivets" holding up the wing on an airplane. See Paul Ehrlich and Anne Ehrlich, Extinction: Causes and Consequences of the Extinction of Species (New York: Random House, 1981). Writing in the same a priori tradition, Simon Levin updated the metaphor to that of a computer. According to Levin, ecosystems constitute "complex adaptive systems assembled from sets of available components as one would assemble a new computer system."
57. Simon A. Levin, Fragile Dominion: Complexity and the Commons (Reading, MA: Perseus Books, 1999), 101.
58. Paul R. Ehrlich and Peter H. Raven, "Butterflies and Plants: A Study in Conservation," Evolution 18 (1964): 586-608; quotation at 605.
59. Levin, Fragile Dominion, 104.
60. This is the "niche assembly perspective" extensively examined in S. P. Hubbell, The Unified Neutral Theory of Biodiversity and Biogeography (Princeton, NJ: Princeton University Press, 2001).
61. Daniel Simberloff and Betsy Von Holle, "Positive Interactions of Nonindigenous Spe cies: Invasional Meltdown?" Biological Invasions 1, no. 1 (1999): 21-32.
62. David W. Ehrenfeld, "Adulusian Bog Hounds," Orion (Autumn 1999): 9-11.
63. Raven and Williams, eds., Nature and Human Society, 325.
64. Schmitz and Simberloff, "Biological Invasions."
65. For discussion, see, for example, K. Thompson, J. G. Hodgson, and T. C. G. Rich, "Native and Alien Invasive Plants: More of the Same?" Ecogeography 18 (1995): 390-402; (Pubitemid 2624647)
66. B. J. Goodwin, A. J. McAllister, and L. Fahrig, "Predicting Invasiveness of Plant Species Based on Biological Information," Conservation Biology 13 (1999): 422-26; and M. Williamson, Biological Invasions (London: Chapman and Hall, 1996).
67. In 1985, Dan Janzen, an empirical biologist, observed that species that do not share an evolutionary history may nevertheless fit together into normal ecosystems. D. H. Janzen, "On Ecological Fitting," Oikos 45 (1985): 308-10.
68. For an example of a lush rainforest eco system composed entirely of introduced species, see D. M. Wilkinson, "The Parable of Green Mountain: Ascension Island, Ecosystem Construction, and Ecological Fitting," Journal of Biogeography 31 (2004): 1-4.
69. This point is generally conceded. See, for example, M. A. Davis and K. Thompson, "Invasion Terminology: Should Ecologists Define Their Terms Differently Than Others? No, Not If We Want to Be Any Help!" ESA Bulletin 82 (2001): 206: "In the United Kingdom, about equal numbers of native and alien plants are expanding their ranges, and an analysis of their traits shows that these two groups are effectively indistinguishable."
70. D. F. Sax, J. J. Stachowicz, J. H. Brown, et al., "Ecological and Evolutionary Insights from Species Invasions," Trends in Ecology and Evolution 22, no. 9 (July 2007): 465-71; quotation at 468.
71. For discussion, see Richard J. Hobbs, Salvatore Arico, James Aronson, et al., "Novel Ecosystems: Theoretical and Management Aspects of the New Ecological World Order," Global Ecology and Biogeography 15, no. 1 (2006).
72. P. M. Vitousek, L. L. Loope, and C. M. D?Antonio, "Biological Invasion as a Global Change," in Richard Somerville and Catherine Gautier, eds., Elements of Change (Aspen, CO: Aspen Global Change Institute): 216-27.
73. For discussion, see Kurt Jax, Clive G. Jones, and Steward T. A. Pickett, "The Self-Identity of Ecological Units," Oikos 82 (1998): 253-64.
74. The concept of the natural world as flux and ecosystems as ephemeral became prominent in the 1990s, when disturbance rather than per manence became the leading metaphor. In reviewing these developments, environmental his torian Donald Worster described the emerging view of nature as "a landscape of patches . a patchwork quilt of living things . responding to an unceasing barrage of perturbations. The stitches in that quilt never hold for long." Donald Worster, "The Ecology of Order and Chaos," in Char Miller and Hal Rothman, eds., Out of the Woods: Essays in Environmental His tory (Pittsburgh, PA: University of Pittsburgh Press, 1997), 10.
75. See also Donald Worster, Nature?s Economy (New York: Cambridge University Press, 1974, rev. ed. 1994).
76. Quoted in Emma Marris, "Invasive Species: Shoot to Kill," Nature 438 (November 17, 2005): 272-73.
77. For essays seeking to bolster this assumption, see Evan Weher and Paul Keddy, eds., Ecological Assembly Rules: Perspectives, Advances, Retreats (Cambridge: Cambridge University Press, 1999).
78. R. H. MacArthur, "Species-Packing and Competitive Equilibrium for Many Species," Theoretical Population Biology 1 (1970): 1-11;
79. R. H. MacArthur, Geographical Ecology: Patterns in the Distribution of Species (New York: Harper and Row, 1972).
80. James H. Brown and Dov F. Sax, "Do Biological Invasions Decrease Biodiversity?" Conservation Magazine 8, no. 2 (April 2007).
81. Simberloff, "Biology of Invasions," 3.
82. John J. Stachowicz and David Tilman, "Species Invasions and the Relationships between Species Diversity, Community Saturation, and Ecosystem Functioning," in Dov F. Sax, John J. Stachowicz, and Steven D. Gaines, eds., Species Invasions: Insights into Ecology, Evolution, and Biogeography (Sunderland, MA: Sinauer, 2005), 41-64; quotation at 41.
83. These authors state (ibid., 55): "If lower resource levels lead to more intense competition, and thence to greater competitive ability, it seems plausible that a region with more species would be both harder to invade and more likely to produce successful invaders." This a priori argument, which is representative of research in invasion biology, does not seem to match what is observed. According to Daniel Simberloff and Betsy Von Holle, the introduction of one exotic species often facilitates (rather than restricts) the introduction of others. "There is little evidence that interference among introduced species at levels currently observed signifi cantly impedes further invasions, and synergistic interactions among invaders may well lead to accelerated impacts on native ecosystems-an invasional ?meltdown? process." Simberloff and Von Holle, "Positive Interactions of Nonindigenous Species," 21.
84. Simberloff, "Biology of Invasions," 3-4.
85. The theory was developed initially in Robert MacArthur and E. O. Wilson, The Theory of Island Biogeography (Princeton, NJ: Princeton University Press, 1967).
86. It subsequently met with severe criticism. See, for example, S. C. Stearns, "Evolution of Life-History Traits-Critique of Theory and a Review of Data," Annual Review of Ecology and Systematics 8 (1977): 145-71.
87. For this definition, see M. Vellend, L. J. Harmon, J. L. Lockwood, M. M. Mayfield, A. R. Hughes, J. P. Wares, and D. F. Sax, "Effects of Exotic Species on Evolutionary Diversifica tion," Trends in Ecology and Evolution 22, no. 9 (2007): 481-88; quotation at 481.
88. Michael L. McKinney and Julie L. Lockwood, "Biotic Homogenization: A Few Winners Replacing Many Losers in the Next Mass Extinction," Trends in Ecology and Evolution 14, no. 11 (1999): 450-53.
89. "Thousands of species are doing quite well, thank you, in parts of the world where they did not evolve, a fact that alone provides the material for endless investigations. The editors and authors [of the book being reviewed] also note, summarizing earlier literature and contributing new information, that the general outcome of most invasions is to increase the overall pool of resident species." James T. Carlton, "Species Invasions: Insights into Ecology, Evolution, and Biogeography," BioScience 56, no. 8 (August 2006): 694-95 (reviewing Sax, Stachowicz, and Gaines, eds., Species Invasions).
90. For discussion, see Geerat J. Vermeij, "Invasion as Expectation: A Historical Fact of Life," in Sax, Stachowicz, and Gaines, eds., Species Invasions, 315-39; esp. 326-31.
91. Vermeij writes that "species play different roles in different places" (ibid., 329).
92. Ibid., 329.
93. Simberloff and Von Holle, "Positive Interactions of Nonindigenous Species," 22.
94. Vellend et al., "Effects of Exotic Species," 481.
95. This is "Allopatric speciation: the creation of new species via genetic divergence in geographically separated populations." Ibid.
96. "[H]ybridization between individuals from genetically divergent native populations may result in introduced populations having more genetic variation than native populations of the same species." Fred Allendorf and Laura Lunquist, "Introduction: Population Biology, Evolution, and Control of Invasive Species," Conservation Biology 17, no. 1 (2003): 24-30; quotation at 24-25.
97. J. A. Lau, "Evolutionary Responses of Native Plants to Novel Community Members," Evolution 60 (2006): 56-63.
98. Sax et al., "Ecological and Evolutionary Insights," 466.
99. H. A. Mooney and E. E. Cleland, "The Evolutionary Impact of Invasive Species," Proceedings of the National Academy of Sciences of the United States 98, no. 10 (2001): 5446.
100. S. Smith, G. Bell, and E. Bermingham, "Cross-Cordillera Exchange Mediated by the Panama Canal Increased the Species Richness of Local Freshwater Fish Assemblages," Pro ceedings of the Royal Society of London, Series B, Biological Sciences 271, no. 1551 (2004): 1889-96.
101. Sax et al., "Ecological and Evolutionary Insights," 467.
102. Andrew Cohen and James Carlton, "Accelerating Invasion Rate in a Highly Invaded Estuary," Science 279, no. 5350 (January 23, 1998): 555-58.
103. Andrew Cohen and James Carlton, Nonindigenous Aquatic Species in a United States Estuary: A Case Study of the Biological Invasions of the San Francisco Bay and Delta. A Report for the United States Fish and Wildlife Service (Washington, DC: The National Sea Grant College Program and the Connecticut Sea Grant Program, 1995), http://www.sgnis.org/publicat/ cc1.htm.
104. Vermeij, "Invasion as Expectation," 329.
105. "Much of the evidence that introduced species cause extinction does not come from studies of introduced plants, but from those of introduced animals, generally predators, and plant diseases. Many of these studies involve animals on islands and, in particular, species of birds that have gone extinct following the introduction of a predatory species, such as the brown tree snake, Boiga irregularis, on Guam." Judith H. Myers and Dawn Bazely, Ecology and Control of Introduced Plants (Cambridge: Cambridge University Press, 2003), 16.
106. The bird extinctions on Guam can hardly be said to have taken place in a "natural" area. The island was extensively bombed by the Allies during World War II. It was then extensively devel oped as a gargantuan shopping mall and recreation area for Japanese and other Asian consumers and tourists. For a study of the difficulty of finding a "natural area" on Guam, see Alan Burdick, Out of Eden: An Odyssey of Ecological Invasion (New York: Farrar, Straus, and Giroux, 2005).
107. Brown and Sax, "Do Biological Invasions Decrease Biodiversity?"
108. M. A. Davis, "Biotic Globalization: Does Competition from Introduced Species ThreatenBiodiversity?" BioScience 53 (2003): 481-89.
109. J. D. Fridley, J. J. Stachowicz, S. Naeem, et al., "The Invasion Paradox: Reconciling Pattern and Process in Species Invasions," Ecology 88 (2007): 3-17; quotation at 5-6.
110. Paul D. Kilburn, "Analysis of the Species-Area Relation," Ecology 47, no. 5 (1966): 831-43; quotation at 842.
111. For a description of this letter, see the National Invasive Species Council, National Management Plan, October 2001, Meeting the Invasive Species Challenge, p. 13; available online at http://www.invasivespeciesinfo.gov/docs/ council/mp.pdf. The text of the letter is available at http://aquat1.ifas.ufl. edu/schlet2.html.
112. Executive Order 13112, February 3, 1999, "Invasive Species," Federal Register: February 8, 1999 (volume 64, number 25); available online at http://www.invasivespeciesinfo.gov/laws/execorder.shtml.
113. The management plan NISC published in 2001 states its view that "damage to natural areas is increasing in priority" relative to agriculture. National Invasive Species Council, National Management Plan, Meeting the Invasive Species Challenge, October 2001; quotation at p. 19. Of the roughly thirty-five invasive plants for which the Council has completed profiles, only about three are listed by USDA as noxious weeds in agriculture. For discussion and citation, see Justin Pidot, "Note: The Applicability of Nuisance Law to Invasive Plants: Can Common Law Liability Inspire Government Action?" Virginia Environmental Law Journal 24 (2005): 183-230; see especially p. 195.
114. National Invasive Species Council (NISC), Invasive Species Definition Clarification and Guidance, White Paper submitted by the Definitions Subcommittee of the Invasive Species Advisory Committee (ISAC); approved by ISAC, April 27, 2006. Published online at http://www.invasivespeciesinfo.gov/ docs/council/isacdef.pdf. Quotation at p. 5.
115. David Ehrenfeld, "Why Put a Value on Biodiversity?" in Biodiversity, ed. E. O. Wilson (Washington, DC: National Academy Press, 1988), 212-16.
116. Paul Angermeier, "Does Biodiversity Include Artificial Diversity?" Conservation Biology 8, no. 2 (1994): 600-602.
117. Osvaldo E. Sala, F. Stuart Chapin III, Juan J. Armesto, et al., "Global Biodiversity Scenarios for the Year 2100," Science 287 (March 10, 2000): 1770-74.
118. Simberloff, "Non-Native Species Do Threaten the Natural Environment," 603.
119. National Invasive Species Council, National Management Plan, Meeting the Invasive Species Challenge, 10, 12.
120. Simberloff, "Non-Native Species Do Threaten the Natural Environment," 598-99.
121. Michael Soulé, "The Social Siege of Nature," in M. Soulé and G. Lease, eds., Reinventing Nature: Responses to Postmodern Deconstruction (Washington, DC: Island Press, 1995), 137-70; quotation at 143.
122. Peter M. Haas, "Introduction: Epistemic Communities and International Policy Coor dination," International Organisation 46, no. 1 (1992): 1-36; quotation at 3.
123. Peter M. Haas, Saving the Mediterranean-The Politics of International Environmental Co-operation (New York: Columbia University Press, 1990); Peter Haas, "Banning Chloro-fluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone," International Organizations 46, no. 1 (1992): 187-224.
124. See also Peter Haas, "Obtaining International Environmental Protection Through Epistemic Consensus," in Ian Rowlands and Malory Greene, eds., Global Environmental Change and International Relations (London: Macmillan, 1992);
125. Peter Haas, "Social Constructivism and the Evolution of Multilateral Governance," in Jeffrey Hart and Aseem Prakash, eds., Globalization and Governance (London: Routledge, 1999).
126. Haas, "Introduction: Epistemic Communities and International Policy Coordination," 3.
127. Simberloff, "Non-Native Species Do Harm the Natural Environment," 597. For a principal paper supporting this consensus,
128. D. S. Wilcove, D. Rothstein, J. Dubow, A. Phillips, and E. Losos, "Quantifying Threats to Imperiled Species in the United States," BioScience 48 (1988), 607-15.
129. For a critique of this paper, see Mark Sagoff, "Do Non-Native Species Threaten the Natural Environment?" Journal of Agricultural and Environmental Ethics 18 (2005): 215-36.
130. Thomas Lovejoy, "The Obligations of a Biologist," Conservation Biology 3, no. 4 (1989): 329-330; quotation at 330. Schmitz and Simberloff, "Biological Invasions."
131. See note 90 above. Simberloff accurately describes those who disagree with the con sensus within invasion biology as comprising primarily nonscientists and a few unrecon structed ecologists. Simberloff identifies "a number of authors from different cultural fields, who have joined with a few ecologists in a rearguard action to convince biologists and the lay public that the ecological threat from introduced species is overblown" (parenthetical citations omitted). Daniel Simberloff, "Invasional Meltdown Six Years Later: Important Phenomenon, Unfortunate Metaphor, or Both?" Ecology Letters 9, no. 8 (August 2006): 912-19; quotation at 915.
132. Public agencies have attempted to make the monitoring and control (these are differ ent things) of invasive species such as purple loosestrife and Eurasian water-milfoil condi tions for obtaining licenses or permits. For an appreciation of the intricacies involved, see, for example, Rhinelander Paper Co. v. FERC, 405 F.3d 1 (D.C. Cir. 2005) (upholding a ruling by the Federal Energy Regulatory Commission that required the petitioner, the operator of a hydroelectric dam, as a condition of continuing its operating license, to develop and implement a plan to monitor purple loosestrife and Eurasian water-milfoil at the project site).
133. B. N. McKnight, Biological Pollution: The Control and Impact of Invasive Exotic Species (Indianapolis: Indiana Academy of Science, 1993).
134. Haas, "Epistemic Communities and International Policy Coordination," 3.
135. H. L. Mencken, Mencken Chrestomathy: His Own Selection of His Choicest Writing (New York: Vintage, 1982), 29.
136. For an example of an attempt at applying the rule that makes property owners responsible for policing invasive species, see, for example, Richard Moore, "Invasives Rule Would Allow DNR to Enter Private Property; Legislative Council Seeks Constitutional Justification," Lakeland Times, November 21, 2008, http://www.lakelandtimes.com/main.asp? SectionID= 9&SubSectionID=9&ArticleID=8720.
137. As a result, environmental law has by now largely ceased to exist as a separate form of jurisprudence. See A. Dan Tarlock, "Is There a There There in Environmental Law?" Journal of Land Use and Environmental Law (Spring 2004): 214-52.
138. Tarlock explains: "Envi ronmental law, as now defined, is primarily a synthesis of pre-environmental era common law rules, principles from other areas of law, and post-environmental era statutes which are lightly influenced by the application of concepts derived from ecology and other areas of science, economics, and ethics" (ibid., 222).
139. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000).
140. See Paul Collier and Anke Hoeffler, Greed and Grievance in Civil War (Washington, DC: World Bank, 2000).