In September, the California Supreme Court left in place a lower-court decision holding that bees are fish—at least for the purpose of protecting them under California’s endangered species law. Public-interest environmental lawyers, including the clinical students I teach at Stanford Law School, are accustomed to working in the shadows behind the clients and causes we serve. But this case, on which many of my students tirelessly worked, has stolen the spotlight. Celebrated in the environmental community, criticized by industry, dissected by legal scholars, and alternately lauded and ridiculed in social media posts, the decision that bumble bees and other terrestrial invertebrates may be listed as “threatened” or “endangered” under the California Endangered Species Act seems like a sea change in environmental law.
October 28, 2022
A California court decision—bees are fish—shines new light on the biodiversity crisis
Matthew J. Sanders
It is and it isn’t. Let’s start with how it isn’t, which means starting with the decision itself (-- Cal. Rptr. 3d --,2022 WL 437847 (May 31, 2022)). When California’s Third District Court of Appeal ruled in Almond Alliance v. California Fish & Game Commission in May of this year, the press and the public seized on the obvious, and admittedly amusing, storyline that “bees are fish,” often followed by various versions of “only in California . . . .” But the Almond Alliance decision doesn’t actually say that. In fact, it rejects that notion—that whether state law protects terrestrial invertebrates like bumble bees turns on common or even scientific understandings of “bees” or “fish.” The decision instead explains that whether the four species of California native bumble bees at issue in the case should be listed as “endangered” turns on what the law says. The California Endangered Species Act, passed in its current form in 1984, protects any native “bird, mammal, fish, amphibian, reptile, or plant” that is at risk of extinction. Cal. Fish & Game Code §§ 2062, 2067, 2068. And California law defines “fish” to mean “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” Id. § 45. Accordingly, the California Endangered Species Act protects “invertebrates” as “fish.”
I’ll be the first to admit that protecting “bees” as “fish” is not a legislature legislating at its finest. When the California Supreme Court declined to take the case, the chief justice and two associate justices took note of the “clear disconnect” between the Court of Appeal’s legal conclusion and “common knowledge.” Moreover, some legal scholars point out that the other kinds of animals protected under the definition of “fish” are often associated with aquatic environments. (There are good responses to these and other points, and the Supreme Court and Court of Appeal discuss many of them in their decisions.) In any event, the California Supreme Court thought the case was unworthy of review; the Court of Appeal employed long-settled legal doctrines to fairly interpret a single provision in a single law.
Where this case really matters is outside the law. We hear most often about global climate change, but that crisis overshadows and contributes to another one: plummeting biodiversity. A 2019 United Nations report (with a much shorter summary) estimates that one-quarter of the Earth’s animals and plants are threatened, with 13 percent of known species facing extinction. That rate is tens to hundreds of times higher than the average extinction rate over the past ten million years. According to the World Wildlife Fund, vertebrate populations have declined by nearly 70 percent since 1970. As for insects, which make up three-quarters of all the world’s living species, the estimates of their decline range from 10 to 90-plus percent depending on the species. The real figures may be much worse.
The crisis is local, too. A recent analysis of imperiled species in the United States, one of the few to include insects, yields a breathtaking map of the nation’s most at-risk biodiversity hotspots. In recent decades, the iconic monarch butterfly has declined by 70 percent in Mexico and 95 percent in California. In the case of North American bumble bees, 28 percent are faced with real risk of extinction. The four native bumble bee species at the center of the Almond Alliance case have each declined by 57 to 77 percent on average. One is listed as “endangered” under federal law, and three are recognized as “endangered” or “critically endangered” by the International Union for the Conservation of Nature.
The declines in these species, and in ones like them, matter: native bumble bees are often more nimble and efficient pollinators than commercial honeybees, and have the benefit of already living in (and being adapted to) local conditions. Pollinating insects are, in turn, the base of our food pyramid. According to the Center for Food Safety and the Xerces Society for Invertebrate Conservation, one in every three bites of food requires pollination, and more than 85 percent of flowering plants require pollination to reproduce. Yet our current systems of industrial agriculture, which rely heavily on pesticides and other harmful products and practices, kill many of our most powerful pollinators, especially when they are combined with widespread habitat destruction and climate change. The results are crashing insect populations and food insecurity, with the poorest human populations often experiencing the worst effects. Declines in pollinating insects like bumble bees, not to mention in insects generally, are an inescapable sign that we are living unsustainably and inequitably.
The Almond Alliance decision brings necessary, specific attention to this crisis and reminds us that we need every tool available at our disposal to stop and reverse it. Many of those tools, like the cooperative conservation measures that the Xerces Society is undertaking with some farmers, hold great promise. Besides pesticides, native bees and other insects are threatened by habitat loss and fragmentation, overgrazing, invasive species and pathogens, and climate change. Accordingly, programs that work to protect and restore habitat, reduce or eliminate pesticide use, and gather critical information about bumble bees and other insects will be essential. But to work these measures have to be innovative, implementable, and implemented.
In the meantime, and likely for the long term, we also need laws that can step in when other efforts aren’t working. Now, following the Almond Alliance decision, there is no doubt that California law can serve that purpose. (The federal Endangered Species Act also protects insects, but state laws like California’s can provide additional protections.) Expressly making imperiled terrestrial invertebrates eligible for protection under state endangered species laws will help provide this additional, necessary level of protection. State and local agencies will have to consider how approvals for development and other projects may affect the most vulnerable insects, and those undertaking activities that could jeopardize such insects will have to take measures to avoid driving them closer to extinction. Endangered species laws also often unlock resources aimed at helping failing species recover instead of just survive.
Many are understandably concerned about the consequences of formally listing insects for legal protection. Laws add process, and process adds cost. Endangered species laws also restrict what people can do in places where listed species are present. But Almond Alliance doesn’t portend a future in which every homeowner has to get a permit to mow their lawn. First, and most important, legal protections are available only for species that are at risk of disappearing forever. In California, a species must be (or be likely to become) in “serious danger” of extinction to warrant legal protection. Most species that meet this high threshold exist in vanishingly small areas and numbers—meaning there just aren’t that many of them. Second, collaborative, voluntary conservation measures to change existing practices can go a long way toward avoiding the need for regulation. Third, legal protections should and typically do kick in only where voluntary measures don’t materialize or aren’t sufficient. Finally, it takes less money than you might think to protect endangered species—just one percent of the value of the food Americans waste each year would provide sufficient funding to recover all of the species listed under the federal Endangered Species Act. And if federal and state wildlife agencies currently lack the resources or expertise to deal with insect declines, that’s a reason to do more, not less.
The costs of protecting imperiled insects like bumble bees are far lower than the costs of driving them to extinction. Insects are, as the biologist E. O. Wilson observed, “the little things that run the world.” Forty years ago, the California Legislature heeded this wisdom, recognizing that we need animals without backbones and that they need us. If it takes a few jokes about California, Bumblebee tuna, and Finding Beemo to spread that message, so be it. We ignore insects’ and other invertebrates’ fate at risk to our own.