The legal and policy framework for mitigating invasive species risk in the bioenergy context

Background/Question/Methods

Invasive plant species are not well controlled in this country. The US system of federalism tends to favor, implicitly, the principle of subsidiarity in which the federal government, via the Federal Plant Protection Act, should only take action to regulate those species that are of national importance. As ecological concerns associated with most invasive plants do not have national implications, the principle of subsidiarity would suggest that a lower, more competent entity should address those species with regional/local impacts. Accordingly, in a cooperative federalist system, the battle against invasive plant species depends upon the active participation of both state and federal governments. This is of particular concern in the bioenergy context as increased demand for bioenergy feedstocks to meet federal and state renewable energy mandates will require deployment of novel plant resources in a variety of potentially sensitive ecosystems, giving rise to increased concerns of invasiveness. To assess the effectiveness of the current multi-jurisdictional system we analyzed the listing of federal and state noxious weeds with applicable invasive species lists developed by invasive plant councils (IPCs). We also analyzed the regulatory structures for states with higher correlations between noxious weed lists and IPC-generated lists.

Results/Conclusions

Our research found that while more than 650 plant species are regulated to some degree within the US, state-level noxious weeds lists only included, on average, 19.6 percent of species considered to be invasive by corresponding state IPCs. Moreover, we found that the current regulatory processes of most states largely neglect an opportunity to be proactive in the fight against invasive species, focusing instead on many species that are not considered invasive in unmanaged systems (e.g., agricultural weeds). Despite a long history of knowledge of the impact of invasive species, our historical review of state statutes and regulations directed toward invasive plant species indicates that state action is largely reactionary and accompanied with stagnant regulatory systems. Accordingly, we recommend a two part revision to existing legal frameworks to mitigate invasive species risk: establishment of a stronger role by IPCs within state regulatory frameworks and creation of a negligence-based liability regime for entities failing to utilize commercial best practices to test for invasiveness (i.e., weed risk assessment and, if warranted, field trials) prior to intentional introduction of novel plant products.