Aquatic Invasive Species in the Coastal West: An Analysis of State Regulation within a Federal Framework
Nadol, Viki, Environmental Law
An invasive species is a normative species(1) introduced, whether accidentally or intentionally, into a new ecosystem.(2) An aquatic invasive species (AIS), as defined by the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA),(3) is a nonnative species that threatens the diversity or plenitude of native marine species, threatens the ecological stability of infested waters, or threatens the ability of infested waters to support agricultural, aquacultural, commercial, or recreational activities.(4) The West Coast of the United States is an area where AIS have taken hold and run roughshod over native plants and animals, invading habitat and aggressively competing for limited food supplies.(5) In fact, in some westcoast waters, AIS completely dominate existing ecosystems. For example, San Francisco Bay currently has over 234 AIS, constituting by weight up to 99% of its total marine life(6) and causing the extinction of many native species.(7) In addition to environmental losses, AIS cause significant economic losses throughout the United States and the coastal West. One conservative estimate places cumulative national economic losses due to AIS at over $1.2 billion,(8) while another places average annual losses alone at about $122 billion.(9)
To combat mounting environmental and economic losses, Congress enacted several pieces of legislation to regulate invasive species generally and AIS specifically. These statutes include the Lacey Act(10) and NANPCA. Most recently and significantly, Congress enacted the National Invasive Species Act (NISA),(11) which amended NANPCA. For three significant reasons, none of these laws adequately regulate AIS.(12) First, the current legislation is a product of a limited legislative agenda in which Congress sought regulation of AIS to curb impacts only on agricultural interests, rather than on the environment as a whole.(13) Second, the federal scheme regulating AIS rests largely on voluntary compliance.(14) Finally, the federal scheme addresses only one AIS introduction vector,(15) that of ballast water discharge,(16) and ultimately falls to consider other known introduction vectors.
Because current federal law does not comprehensively address AIS, state regulation must be considered as an alternative means of AIS management.(17) Arguably, states are better able to regulate AIS introduction and establishment than federal agencies for several reasons. To begin, the great diversity of AIS would be easier to monitor at the local level.(18) Also, the variety of introduction vectors would be simpler to manage at the state level.(19) Finally, states have firsthand knowledge of what is actually happening in their waters with respect to prevention of AIS introduction and eradication of already established AIS. On the other hand, there are obstacles to state regulation of AIS, such as Commerce Clause objections, federal preemption arguments, and implementation inconsistencies.(20) Consequently, state law regulation of AIS would be best accomplished with specific federal guidance and empowerment.
The purpose of this Article is to explore state law as a means of regulating AIS within a larger federal law framework. Because western coastal states provide an interesting sampling of AIS problems and statutory responses to those problems, this Article uses the state laws of California, Oregon, Washington, and Alaska as a basis for studying the relationship between state and federal law. Part II examines the introduction, establishment, and impact of AIS in the marine environments of the coastal West. Part III presents a two-fold analysis: 1) It assesses the effectiveness of current federal law in regulating AIS and highlights deficiencies in the federal scheme, and 2) it discusses the constitutional limitations on state AIS regulation, specifically examining constraints imposed by the Commerce and Supremacy Clauses. Part IV analyzes the shortcomings of existing AIS laws in California, Oregon, Washington, and Alaska and discusses the general need for more uniform state AIS regulation. …