Around the world, nations share a common goal in the conservation of wildlife and biodiversity resources. Wildlife and biodiversity underpin the larger natural systems that humans rely upon. In its significant 2019 report, the United Nations (UN) Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services concluded that global biodiversity is declining at an alarming rate with as many as one million animal and plant species threatened with extinction by 2100 (representing nearly 40% of all species on earth). The drivers of global biodiversity loss include changes in land and sea use, exploitation, climate change, pollution, and invasive species.
In attempting to reverse the long-term trend of biodiversity loss, the United States and the European Union (EU) have developed some of the world’s most robust wildlife and biodiversity conservation law frameworks. Although different, the two frameworks share commonalities including primary management of wildlife and biodiversity at a local level with overarching federal or EU laws providing a uniform legal framework and important backstop to species and habitat conservation.
While there are many conservation success stories, including the recovery of European bison and griffon vultures in the EU and the grizzly bear and bald eagle in the United States, there is room for improvement in both the United States and EU wildlife and biodiversity legal frameworks, as evidenced by the persisting declines in biodiversity. In the United States, wild bird populations have declined by 30% over the past half century, a loss that equates to three billion breeding adult birds. Beyond birds, scientists at NatureServe estimate that a third of all U.S. species are at risk of extinction. The European Commission’s latest State of Nature report notes that only 15% of European habitats protected by EU laws have a good conservation status and that only 9% of habitats and 5% of species with an unfavorable status are showing positive improvement.
This article provides a comparison of the wildlife and biodiversity law regimes of the United States and the EU. Comparative analysis can help us reexamine our domestic legal approaches and even our core principles, leading to improvement and efficiencies. In this article, I have attempted to capture the general wildlife and biodiversity legal frameworks of the United States and the EU and provide insights into emerging policies aimed at improving wildlife and biodiversity outcomes, to promote insight and knowledge and inform the development of solutions to address continued conservation challenges.
After the American Revolution, the English Crown’s sovereign authority over wildlife passed to the states along with other inherited police powers, with the exception of rights reserved for the federal government by the Constitution. Thus, in the United States, states, through their wildlife management and conservation agencies, primarily manage wildlife. As sovereign governmental entities, Native American Tribes also have primary jurisdiction to manage wildlife within the boundaries of Tribal reservations, and often their treaties with the U.S. federal government contain rights to hunt or fish beyond their reservation boundaries.
States manage wildlife as a public trust resource, meaning the states have a conservation responsibility to manage wildlife resources for the public’s benefit. The result of the states’ duty to manage wildlife is an extensive authority over wild animals that includes the authority to establish a wide variety of laws and regulations, including hunting season allocations, poaching laws, and habitat conservation–related laws. U.S. courts have repeatedly held that landowners do not possess an inherent right to hunt wildlife on their private property; instead, hunting is considered a privilege granted and regulated by the state. Private landowners, however, have the right to exclude the public from their property and enforce trespass.
Because each state manages wildlife differently, it is difficult to provide generalities of U.S. state wildlife law. However, the North American Model of Wildlife Conservation provides broad principles from which to view the state wildlife law framework in the United States, although some state laws run contrary to the principles (game farming in Texas, for example). The major principles of the Model include (1) wildlife resources are a public trust; (2) markets for game, shorebirds, and songbirds are eliminated; (3) the allocation of wildlife is by law; (4) wildlife can be killed for a legitimate purpose only; (5) wildlife is considered an international resource; (6) science is the proper tool to discharge wildlife policy; and (7) democracy of hunting is standard.
Wildlife law has been described as “the great paradox of American land use policy” because, despite the idealization of wildlife, the U.S. legal system has not generally conceptualized wildlife as having use rights to habitat and the resources they need to survive.
Wildlife law has been described as “the great paradox of American land use policy” because, despite the idealization of wildlife, the U.S. legal system has not generally conceptualized wildlife as having use rights to habitat and the resources they need to survive (particularly on private lands). Charlie Facemire & Karen Bradshaw, Biodiversity Loss, Viewed Through the Lens of Mismatched Property Rights, 14 Int’l J. Commons 650, 653 (2020). The result of this failure to protect wildlife habitat has resulted in “biodiversity loss at a breath-taking rate.” Id.
To address the rate of biodiversity decline, the federal government has stepped into the states’ traditional realm of authority over wildlife to protect at-risk species and conserve wildlife and their habitat on federal public lands. The most notable U.S. federal wildlife laws include the Lacey Act, the Migratory Bird Treaty Act (MBTA), and the Endangered Species Act (ESA). Federal wildlife laws typically address wildlife issues that transcend state boundaries—the wildlife themselves or the interstate nature of the problem that gave rise to wildlife decline, which states alone cannot or will not address.
The Lacey Act was passed in 1900 under the authority of the Commerce Clause to address the problem of game law violators who crossed state lines to avoid state enforcement. 16 U.S.C. §§ 3371–78. The Lacey Act transformed certain violations of state wildlife laws into federal criminal offences, enabling the federal government to assist states in the enforcement of their game laws across state lines. The Lacey Act has been expanded over time and now allows federal wildlife officers and federal prosecutors to enforce a much wider array of wildlife laws, including federal laws, tribal laws, and international treaties.
Congress passed the MBTA in 1918 under the authority of the Treaty Clause. Id. §§ 703–12. The Act sought to address the rapidly declining bird populations due to unregulated feather and sport hunting at the time. Based on an initial treaty with Great Britain, acting on behalf of Canada in 1916, the MBTA imposes limits on hunting and other takings of listed migratory bird species. Later treaties were signed with Mexico (1936), Japan (1972), and the Union of Soviet Socialists Republics (1976).
In 1973, Congress passed the ESA under the authority of the Commerce Clause to address the decline and potential for extinction of various species of fish, wildlife, and plants in the U.S. Id. §§ 1531–44. The goal of the ESA is “to conserve threatened and endangered species and the ecosystems on which they depend.” Id. § 1531(b). Through a comprehensive approach, in recognition of the multiple and diverse causes of species endangerment, the ESA includes prohibitions against the taking of endangered species (and often threatened species too), restrictions on commerce in wildlife and plants, requirements for habitat protection, and procedures for interagency coordination. Federal agencies, including those that manage federal public land, are required to ensure their actions do not jeopardize the continued existence of a listed species or result in the destruction or adverse modification of a species’ critical habitat.
The U.S. Supreme Court addressed the potency of the ESA just five years after its passage in the case of TVA v. Hill, 435 U.S. 153 (1978). In that case, the Supreme Court upheld the purpose of the ESA as a means to conserve endangered and threatened species and their habitats despite economic impacts, and ordered an injunction against the completion of a federally funded dam that was predicted to impact the ESA-listed snail darter fish.
During the Middle Ages in Europe, after the fall of the Roman Empire, monarchs held a monopoly on all wildlife and wildlife hunting. Hunting was a privilege that was enjoyed by the king and queen and their wealthy friends and family (although there was variation across Europe). Generally, common citizens lacked access to hunting and game meat, resulting in conflict that often led to poaching as a means of inflicting revenge on the ruling class. As monarchies were abolished, or their powers restrained, wildlife management authority transferred from the various kings and queens to government entities. In modern Europe, wildlife is managed by each member state, with the EU’s Birds Directive and Habitats Directive forming the cornerstone of the continent’s wildlife and biodiversity legal framework. Council Directive (EEC) 79/409 of 2 April 1979 on the Conservation of Wild Birds (Birds Directive); Council Directive (EEC) 92/43 of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora, [1997] OJ L305/42 (Habitats Directive).
Among the 27 member states of the EU, there is a large diversity in landscapes, flora and fauna, histories and culture, and political systems and economic drivers. As a result, it is hard to make broad generalizations about “European wildlife law” because each member state manages wildlife based on its unique setting, traditions, and cultural values. This section attempts to capture common principles of wildlife law among the European member states before discussing the EU Birds Directive and Habitats Directive.
In Europe, landowners generally have a larger role in wildlife management than in the U.S., including a legal right to hunt and often a right to the game harvested on their private property. For example, in Scandinavia, once wildlife are legally harvested, the meat is considered the property of the landowner. In Germany, landowners must own a larger tract of land or pool their property with other landowners to form a “revier” of sufficient size in order to hunt on their property. For landowners, the right to hunt can be an important part of their income as land is often leased to hunters. Smaller private landholdings are often organized into a larger hunting area and managed collectively. A landowner’s right to hunt is contrasted with the conservation policies in many Western European countries whose policies favor greater public access to the countryside. In Austria for example, the public enjoys a right to walk on private and state land in the forests and mountainous areas (called the Wegefreiheit).
Landowners, or the hunters who lease private land, are often asked to manage game populations. Planning, harvesting, distribution of game meat, and reporting to the authorities are often components of the landowner or hunting lessee’s responsibility. For example, in Spain, landowners must submit a five-year management plan that includes population estimates and intended hunting quotas to ensure resource sustainability. Some larger private estates employ professional hunters, who are responsible for maintaining populations of game. In Europe, game meat is considered a commercial commodity that can be sold on the open market. Farming of wildlife, particularly ungulates, is also allowed in many European countries. Winter supplemental feeding of wildlife is common and sometimes required by law, as is the case in Poland under its federal Hunting Law. In the Netherlands, however, the Flora and Fauna Act prohibits supplemental feeding under a philosophy of leaving things as natural as possible.
In 1979, to address wildlife and biodiversity declines, European countries came together to sign the Council of Europe’s Convention on the Conservation of European Wildlife Habitats, known as the Bern Convention. The Bern Convention is an international treaty that promotes cooperation between signatory countries to conserve wild flora and fauna and their natural habitats and to protect endangered migratory species.
As the EU evolved from an economic union to a supranational political organization spanning many policy areas, including the environment, it became increasingly engaged in the conservation of wildlife and biodiversity. Most European environmental legislation is in the form of Directives, which allow member states flexibility in the way that these laws are incorporated into national law (known as transposition). Within the EU, the Birds Directive and the Habitats Directive provide an overarching framework for wildlife protection, setting uniform standards that are often higher than individual national mechanisms.
The Birds Directive, adopted in 1979, is the EU’s oldest piece of nature legislation. It was passed in response to the Bern Convention. The Birds Directive protects all species of birds naturally occurring in a wild state in the EU by banning the deliberate disturbance, killing, capture, or trade in wild birds; taking of eggs; and the destruction of their nests. Member states are responsible for implementing the Birds Directive and must submit reports on bird populations as well as on derogations that they may apply to the Directive’s obligations. Sustainable hunting of Annex II species is allowed under guidance provided by the EU Commission. The Birds Directive also emphasizes habitat protection for endangered and migratory birds, resulting in the creation of a network of Special Protected Areas (SPAs). Once a Member State designates a site as a SPA, it must protect the site from damaging activities and take necessary conservation measures to maintain or restore the habitats to an optimal condition.
As the main instrument of biodiversity protection policy of the EU, the Habitats Directive goes beyond the Birds Directive to protect an additional 1,000 species and 200 habitat types.
The European Parliament adopted the Habitats Directive in 1992. It was built around a network of protected habitats and protected listed threatened species. Annex I and Annex II to the Habitats Directive list the types of habitats and the animal and plant species whose conservation requires the designation of Special Areas of Conservation (SACs), which are to be managed per the ecological needs of the species. The Directive also requires the strict protection of animal and plant species listed in Annex IV. The Annex IV species are those particularly threatened throughout their entire natural range within the EU, both within and outside SACs. Finally, Annex V lists species that are not threatened and whose exploitation may be subject to management measures.
As the main instrument of biodiversity protection policy of the EU, the Habitats Directive goes beyond the Birds Directive to protect an additional 1,000 species and 200 habitat types. As an EU directive, the Habitats Directive sets out goals that all EU member countries must achieve. It is up to the individual member states to incorporate the principles of the Directive into the national law. As the main instrument of biodiversity protection policy of the EU, the Habitats Directive goes beyond the Birds Directive to protect an additional 1,000 species and 200 habitat types. Overall, it aims to promote the maintenance of biodiversity while considering economic, social, cultural, and regional requirements.
Both the United States and the EU are striving to meet the UN Convention on Biological Diversity’s recommended target of conserving 30% of their lands and waters by 2030, known as the 30×30 initiative.
The SPAs of the Birds Directive, along with the SACs of the Habitats Directive, make up Natura 2000. Natura 2000 is the EU’s centerpiece for environmental efforts and serves as its core network of habitat protection for rare and threatened species and unique habitats. The network protects more than 1,000 species and over 200 habitat types. It is the world’s largest coordinated effort of ecologically protected areas totaling 18% of the EU’s land area and around 11% of its seas. Another 8% of land and 3% of seas are protected under national programs. The EU’s Natura 2000 network is estimated to provide annual ecosystem services valued at around €200–300 billion per year. See European Comm’n, The Birds Directive: 40 Years Conserving Our Shared Natural Heritage 35 (2019).
Because most Natura 2000 sites are already under some form of active land use (farmland makes up 40% of all sites), the EU directives leave it up to each member state to decide how to best manage individual sites in consultation with local stakeholders. The aim is to find ways to operate Natura 2000 sites in a way that safeguards valuable species and habitats alongside socioeconomic activities. Through the Habitat Directive’s permitting procedures, projects planned within Natura sites that may have a significant effect on habitat and species are reviewed during planning stages so that alternative courses of action or mitigation measures can be introduced to remove threats.
The requirements of the Birds Directive and Habitats Directive have been rigorously enforced by the EU Commission and the Court of Justice of the European Union, which have invalidated numerous attempts by member states to derogate from their conservation obligations.
To address the continuing loss of wildlife and biodiversity, both the United States and the EU are developing and implementing innovative conservation strategies. This section provides a summary of those efforts.
To reverse the trend of habitat loss and biodiversity decline, both the United States and the EU are striving to meet the UN Convention on Biological Diversity’s recommended target of conserving 30% of their lands and waters by 2030, known as the 30×30 initiative. In the United States, the 30×30 goal was adopted by President Biden in a 2021 Executive Order that directed his administration to take steps to achieve the goal. Exec. Order No. 14008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619 (Jan. 27, 2021). Currently, 12% of land and 26% of marine territory have some level of protection. Efforts to achieve 30×30 in the United States will likely include the conservation of federal lands and private property via conservation easements, which often entitle private landowners to federal tax incentives. Currently in the United States, conservation easements have conserved 61 million acres of private land. Land Trust Alliance, Gaining Ground, Areas Protected in the United States (2022).
In Europe, the European Commission’s Biodiversity Strategy for 2030 includes a goal to expand protected areas to 30% of the EU’s land and sea, putting a third of those areas under strict protection. Achieving the EU’s 30×30 goal will require that member states collectively protect 4% of their land and 19% of their seas. The EU Biodiversity Strategy for 2030 further calls for the creation of ecological corridors between protected sites to allow species migration and climate adaptation pathways.
Habitat degradation and loss due to intensive agricultural activities and urbanization represent leading pressures on wildlife and biodiversity in the United States and the EU. Both entities are looking at creative strategies to improve conservation outcomes on private land, particularly on working agricultural lands. In the EU, several countries are experimenting with results-based conservation schemes within the EU Common Agriculture Policy that provide incentive payments to farms and landowners for delivering specific environmental results or outcomes. The results-based conservation schemes differ from traditional payments that are management based, and offer greater flexibility to deliver environmentally desired outcomes or results. The proposed EU Natural Restoration Law is a comprehensive law that includes €100 billion for EU member states and overarching restoration objectives of the EU’s land and seas, with binding restoration targets for specific habitats and species. In the U.S., Congress funded the U.S. Department of Agriculture (USDA) nearly $20 billion under the 2022 Inflation Reduction Act to expand a variety of its agricultural conservation efforts, including its conservation easement program. The USDA has also recently begun implementing a pilot project in the Greater Yellowstone Ecosystem to explore opportunities for innovative conservation of private land for the benefit of migratory big game populations.
Inadequate funding for the implementation and enforcement of existing conservation laws exacerbates the loss of wildlife and biodiversity. In the United States, only 5% of plants and animals listed under the ESA receive adequate conservation funding, with most funding going to high-profile species. Bruce A. Stein et al., Nat’l Wildlife Fed’n, Reversing America’s Wildlife Crisis: Securing the Future of Our Fish and Wildlife 8 (2008). Funding is needed for species conservation to avoid the need to use the emergency room approach of listing the species as at risk and triggering stringent government interventions, which have only mixed results at best. In the United States, the bipartisan-supported Recovering America’s Wildlife Act would provide much-needed funding to state agencies and Native American Tribes to implement their plans to protect wildlife, particularly nongame species. In Europe, the Biodiversity Strategy for 2030 proposal to unlock at least €20 billion a year for nature and to ensure that a significant portion of the committed 30% of the EU budget dedicated to climate action is invested in biodiversity and nature-based solutions would also help to ensure adequate funding for wildlife and biodiversity conservation in the EU.
The United States and the EU have developed some of the world’s most robust wildlife and biodiversity conservation laws, and while different, have achieved some conservation success. Yet despite their robust legal frameworks, neither the United States nor the EU is winning the war on biodiversity loss. Wildlife and biodiversity remain under significant pressure, and the impacts of climate change will be an ultimate test of the wildlife conservation frameworks in the United States and the EU.
There is still much more work to do. However, emerging policies like the 30×30 efforts and increased funding commitments provide opportunities to halt and even reverse the trend of biodiversity loss in both the United States and the EU. As both entities look to develop additional strategies and tools to address wildlife and biodiversity declines, there are opportunities to learn from each other. For example, the United States could take note of the EU’s strategy under the Birds Directive and Habitats Directive to create conservation areas to protect species and habitats in areas where there is existing active land use. And the EU could take note of the higher rates of use of incentive-based private conservation tools like conservation easements in the United States.
Ultimately, both the United States and the EU stand to benefit significantly from increased wildlife and biodiversity protection, with benefits ranging from the preservation of the cultural heritage of wildlife to the conservation of the natural systems that produce invaluable ecosystem services that underpin a healthy human environment.
