Frayed Seams in the "Patchwork Quilt" of American Federalism: An Empirical Analysis of Invasive Plant Species Regulation
McCubbins, James S. Neal, Endres, A. Bryan, Quinn, Lauren, Barney, Jacob N., Environmental Law
I. INTRODUCTION A. Federal Laws B. State Laws II. AN EMPIRICAL ANALYSIS OF INVASIVE PLANT REGULATION A. Differentiating 'Noxious" and "Invasive Plants". 1. Fidelity 2. Latency 3. Interpreting the Results for Fidelity and Latency 4. Typologies of Invasive Species Regulation B. States, Structures, and Typologies 1. Nebraska 2. Kansas 3. Illinois 4. Indiana 5. California 6. Florida 7. New Hampshire 8. Connecticut 9. Massachusetts III. RECOMMENDATIONS AND CONCLUSION A. Ex Ante Solutions 1. Formalizing Invasive Species Councils within State Government 2. Regulatory Precision in Defining Invasive Species B. Ex Post Liability: Internalizing the Social Costs C. Concluding Thoughts
Invasive species are not well managed in this country. Determining the true economic costs associated with invasive species is difficult; (3) yet, researchers have estimated that corrective expenditures and other lost revenues exceed $120 billion annually (4) and, unfortunately, most of these expenses are absorbed by the public. In most instances, necessary control measures are not in place prior to a species naturalizing in a given ecosystem. (5) Invasive species most often outcompete their native counterparts for resources within an ecosystem, (6) resulting in the need for remedial measures in order to preserve ecosystem stability for other flora and fauna (7) As some studies have shown, the cost of preventing invasive species from initially establishing a presence is far less than the cost of remedial measures. (8) However, despite "[a]n ounce of medicine [being] worth a pound of cure," (9) our empirical study provides strong evidence that most states within the United States fail to even consider "medicine," and instead undertake reactionary measures, resulting in significant underregulation of most invasive plants, while overregulating many plants that lack invasive characteristics.
While the word "invasive" inherently holds a negative connotation, (10) many of these problematic species have been introduced to various regions under the auspices of "good intentions." (11) Consider, for example, the inrotduction of Asian carp (12) into the southern United States and their subsequent migration towards the Great Lakes region. As voracious algae eaters, scientists intentionally introduced Asian carp for the dual purpose of helping keep aquaculture and wastewater treatment facilities clean and as a means of providing fresh fish to fish markets. (13) Despite the benefits of these fresh-water fish, flooding allowed them to escape into the wild, where they currently threaten not only native ecosystems and fish populations, but also a multi-billion dollar fishing industry in the Great Lakes region. (14) Not to be outdone, plants have also played their part in exacerbating the invasive species challenge. Kudzu (Pueraria montana var. lobata), originally a native plant to China and Japan, had been promoted in the late 1800s as an ornamental species in the United States. (15) By the 1930s, the species was found to have excellent properties for erosion control, (16) and the government not only encouraged people to use it, but subsidized its propagation by providing more than 85 million seedlings and paying $19.75 for each hectare planted. (17) Proponents of kudzu during this period advocated its versatility as fodder for livestock, a hay crop, and for use in manufacturing starch, paper, and other cloth products. (18) Although the United States government eventually reversed its kudzu-promoting policies, the plant species was already well-established in the southeastern United States, (19) exhibiting its apt monikers of "Mile-a-Minute Vine" and "The Vine that Ate the South." (20) Much like Asian carp, kudzu has the ability to outgrow and outcompete native species. (21) In fact, in many instances the rapidly growing vine uses native vegetation and surrounding structures to secure vantage points for increased sunlight. …