Conservation Biology and Law: Only a Start
ERIC T. FREYFOGLE
College of Law, University of Illinois, 504 E. Pennsylvania Avenue, Champaign, IL 61820, U.S.A., email efreyfog@law.uiuc.edu
From the beginning conservation biology has been a
goal-driven enterprise, motivated by an urge to protect
all species. The guiding hope is that scientific information about biodiversity can find its way into land-use plans
and otherwise aid rare species. In modest ways this has
happened: overtly in endangered species acts (federal
and state) and erratically and incompletely in land-use
schemes crafted by land-owning agencies. But the overall assessment is not good. The law views conservation
biology as a specialty field of trivial importance. Only in
a few settings have its principles diverted the march of
free-market capitalism and modern liberalism. A start has
been made, but little more. Why is this so, and what can
be done about it?
For starters, it is important to note that conservation
biology displays the strengths and weaknesses of all science. It has compiled a body of knowledge on nature and
features tools for gaining more knowledge. Morality motivates the work, but the morality stands apart from the
science, as do the many prudential considerations that are
also relevant in deciding how we should live on the land.
Many steps are needed to move from the facts of science
to overall goals that guide our interactions with nature
(Freyfogle & Newton 2002). In deciding what kinds of
land uses are good, a long list of factors having to do with
human utility ( broadly defined), ethics, religious sentiments, and the limits on our knowledge and reason is
relevant (Freyfogle 2006). Conservation biology can inform the work of setting land-use goals. It can also help
formulate plans to achieve the chosen goals. But conservation biology standing alone does not tell us how we
ought to use nature.
Conservation biologists may assume that their field has
little influence today because it is immature and that its influence will grow as its body of knowledge grows and its
theories become sturdier. But there is little basis for this
belief. Conservation biology has little influence, not because it knows too little, but because its knowledge is not
considered useful. And this knowledge is not considered
useful because the people who count simply do not care
that much about biodiversity. Until they do, conservation
biology will remain on the policy-making fringe.
At the dawn of this discipline, David Ehrenfeld (1981)
issued an elegant plea for protecting rare species on moral
grounds. No other rationale, he urged, was broad enough
to sweep in all life forms. He was right, and we should not
forget it. But we should also realize that morality rarely
drives public policy, at least not alone. In the liberalism
that dominates modern culture—including the economic
libertarianism that is liberalism’s purest form—morality is
largely a matter that people embrace one by one (and, according to libertarians, may have little place in the roughand-tumble world of market competition). Current endangered species acts display a moral grounding. Perhaps
the same was true of the much-battered “diversity” regulations of the U.S. Forest Service. But species kept alive on
purely moral or aesthetic grounds inevitably are secondclass beings. Yes, they are nice to have; yes, we ought to
protect them. But when the clash comes between species
protection and economic growth—to say nothing of human health—rare species can and do lose out.
If conservation biology is going to make real inroads
in law, better arguments are needed to support it. The
case must be made that diverse life forms are essential for
sustaining the proper functioning of ecological communities. Humans are a part of these communities and depend
in the long term on them. An ecology-based argument
is required, one that links species protection to ecological functioning. One could phrase the argument in various ways. One now-popular approach uses the concept
of ecosystem services to highlight the benefits people
get from well-functioning ecosystems (Millenium Ecosystem Assessment 2003). Other approaches feature terms
such as ecological integrity (Pimentel et al. 2000) and the
somewhat older ecosystem health (Costanza et al. 1992).
Decades ago, Aldo Leopold weighed in with his own conservation vision centered on the concept of land health
(Newton 2006). The competing terms have strengths and
Paper submitted December 6, 2005; revised manuscript accepted February 16, 2006.
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C 2006 Society for Conservation Biology
DOI: 10.1111/j.1523-1739.2006.00433.x
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Conservation Biology and Law
weaknesses, which would take time to sort out. Terminology aside, some such goal must be put forward and gain
broad support if biodiversity is to thrive.
The current land-use scene features two principal ideologies. In the minority are conservation biologists and
others who support rare species simply because they exist and because future generations of people should get to
enjoy them. Clashing with that approach is the dominant
view, which sees nature as a collection of discrete parts
(natural resources), some of them valuable, most of them
not. We have yet to hear forcefully about the third approach, which needs to gain ascendancy—the approach
that views nature as an interconnected whole in which
the flourishing of the parts (humans included) depends
on the smooth functioning of the whole. Until the third
view gains influence, conservation biology will remain on
the fringe. Ehrenfeld is no doubt right: many species are
expendable in terms of ecosystem functioning. But the
moral claim that does cover all species is simply not sturdy
enough to carry the day. Yes, we should keep it and put
it to use. But it cannot provide the main line of attack.
At the moment, environmental law in the United States
(and to varying degrees elsewhere) focuses almost entirely on the well-being of humans, on the air people
breathe, the water they drink, and the safety of their food.
Even natural areas are protected chiefly for people to enjoy. To the extent that environmental law has a paradigm,
it is based on risk (Farber 2000). Scientific uncertainty (as
our ignorance is typically labeled) is measured in terms of
our confidence in predicting various levels of risk. With
rare exception the risk that lawmakers talk about is the
risk of direct harm to identifiable living humans. Human
health, it seems, can be talked about and promoted with
no direct concern for the health and welfare of other life
forms.
The environmental laws now on the books are overdue
for revision. Instead of a risk-based approach, we need
an approach based on health. Risk talk is too focused
on people and makes little use of ecology. More to the
point, it makes almost no use of conservation biology.
And it will not use conservation biology until the shape of
the discussion changes. Conservation biologists can help
promote that change. The Ecological Society of America
has taken good steps in this direction (Palmer et al. 2005),
but far more must be done.
If we did shift to a health-based understanding of our
ecological predicament, how might that affect the law?
The effects, briefly, could be of three types. Ecological
health could alter the overall aims that the law is used to
achieve. Law is basically a tool, a human creation patched
together over time to help people do things and accomplish goals. When our goals shift, we need different laws
to achieve them. Lawmakers could also use ecology to refine existing laws so that they are more effective in achieving current goals. Some tools are better than others, and
ecology can help us refine our legal tools.
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Volume 20, No. 3, June 2006
Freyfogle
Third, we have the longer-term project of raising questions about existing laws and legal institutions that are
carryovers from a pre-ecological age. To see the world in
ecological terms is to see it in a whole new light, much
different from the dominant view of nature as a flow of
discrete resources (with the miraculous market always
able to find a substitute when one resource disappears).
Legal arrangements that made sense when we saw the
world one way may no longer make sense when we see
it another way. This work could be the most important of
all; conservation biologists ought to help with it.
Atop the list of legal arrangements that needs reassessing in light of ecology is the powerful institution of private property (Freyfogle 2003). The institution is far more
flexible than we realize. It can and has taken a variety
of shapes over time, even within the United States. At
present, our dominant legal ideas about ownership could
hardly clash more directly with the foundational principles of ecology, and they cry out for reconsideration. Also
in need of criticism are the artificial jurisdictional boundaries that we draw on the land, separating one city and
county from the next. Artificial legal boundaries make it
easy for governing bodies to ignore large-scale ecological processes. Both political jurisdictions and privateproperty boundaries exacerbate our current tragedies of
fragmentation.
These two legal institutions merely illustrate the ways
pre-ecological ideas about nature permeate our legal arrangements. For conservation biologists willing to wrangle in legal and policy arenas, this is the task for the
twenty-first century. We need to take a long, hard look
at all of our land-use ideas and understandings. Only if we
do so, making the appropriate, wide-ranging changes to
them, will conservation biology gain its rightful place in
American law.
Literature Cited
Costanza, R., B. Norton, and B. Haskell. 1992. Ecosystem health: new
goals for environmental management. Island Press, Washington, D.C.
Ehrenfeld, D. 1981. The arrogance of humanism. Oxford University
Press, New York.
Farber, D. A. 2000. Eco-pragmatism: making sensible decisions in an
uncertain world. University of Chicago Press, Chicago.
Freyfogle, E. T. 2003. The land we share: private property and the common good. Island Press, Washington, D.C.
Freyfogle, E. T. 2006. Why conservation is failing and how it can regain
ground. Yale University Press, New Haven, Connecticut.
Freyfogle, E. T., and J. L. Newton. 2002. Putting science in its place.
Conservation Biology 16:863–873.
Millennium Ecosystem Assessment. 2003. Ecosystems and human wellbeing: a framework for assessment. Island Press, Washington, D.C.
Newton, J. L. 2006. Aldo Leopold’s odyssey. Island Press, Washington,
D.C.
Palmer, M. A. et al. 2005. Ecological science and sustainability for the
21st century. Frontiers in Ecology and the Environment 3:4–11.
Pimentel, D., L. Westra, and R. Noss, editors. 2000. Ecological integrity:
integrating environment, conservation, and health. Island Press,
Washington, D.C.