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Biodiversity Conservation in the United States: A Case Study in Incompleteness and Indirection

May 2002

Citation: ELR 10529

Author: A. Dan Tarlock

What is the United States' obligation to conserve biodiversity? What is the relationship between biodiversity conservation and sustainable development? At both international and national levels, biodiversity conservation has recently emerged as a construct to unify a number of disparate, older environment objectives such as wildlife conservation, the preservation of endangered species,1 and the dedication of land for heritage purposes such as parks, nature reserves, wildlife refuges and other similar categories into a single overarching legal category. At the same time, the paradigm of sustainable development has emerged as the ur standard for the integration of economic development and environmental protection in both developed and developing countries.2 In brief, sustainable development seeks to encourage resource exploitation and consumption practices that are consistent with long-term environmental protection objectives. Sustainable biodiversity conservation practices include preserving representative examples of biodiversity for future generations, using undeveloped biodiversity as a valuable resource for nonintrusive bioprospecting or ecotourism and exploiting and using land and natural resources in more environmentally sensitive ways.

Since the Rio Summit (the Conference on Environment and Development) in 1992, many biodiversity conservation initiatives have been initiated in the United States by all levels of government and private parties. But, they are often ad hoc efforts to solve a single example of past environmental degradation, such as the restoration of sheet flows to the Everglades, or efforts to avoid a worst-case Endangered Species Act (ESA)3 enforcement scenario. Biodiversity conservation is often seen as a secondary byproduct rather than the primary objective of these activities. At the present time, U.S. law only imposes a duty on public and private parties to prevent the extinction of a limited number of protected endangered or threatened species4; there is no general public or private duty to conserve biodiversity qua biodiversity. Federal agencies generally have the discretion to conserve biodiversity, although this authority can generally be traded off against more traditional exploitation objectives and is often contested. In the past 10 years, the U.S. government has tried to manage large blocks of public lands on an ecosystem basis and has participated in collaborative stakeholder ecosystem basis restoration experiments. These efforts are extremely fragile because they lack a firm legal foundation, they can be modified in response to changed political conditions, and no clear performance standards exist to measure their success should they endure.

[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in that book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

The author is a Professor of Law at Chicago-Kent College of Law. He received his A.B. 1962, LL.B. 1965 from Stanford University.

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