Peter S. Alagona
University of California Press, 2022
For much of last year and early 2024, an owl named Flaco captured the attention of New York City residents. Flaco, who hatched in captivity in North Carolina, had been living in the Central Park Zoo for more than a decade, but he escaped in February 2023 after his enclosure was vandalized. He managed to survive the transition from captivity to the wild for a year, but in February of this year he collided with a building on the Upper West Side and died from the injuries. A necropsy indicated that Flaco was suffering from pigeon herpesvirus, which stemmed from eating feral pigeons, and exposure to rodenticides, and that these conditions may have undermined his ability to avoid the collision.
Flaco’s escape to the urban wild—and the human fascination with it—was on my mind as I read Peter Alagona’s captivating book, The Accidental Ecosystem. Alagona charts the increase in urban wildlife in the United States over the last several decades. This increase has taken numerous forms, but some are not that different from Flaco’s story. For example, in August 1992, as the residents of Miami’s suburbs surveyed the substantial damage caused by Hurricane Andrew, they also witnessed a surreal scene: hundreds of wild animals that had been in the city’s zoo as well as research labs, breeding facilities, and roadside attractions, were now wandering the streets. This menagerie included exotic birds, macaques, rare deer, and baboons, but “these charismatic fugitives, though photographic and newsworthy, were only a tiny fraction of the estimated five thousand captive animals that Andrew unleashed.”
Throughout the book, Alagona uses this type of vignette as the springboard for a deep dive into a topic. The Hurricane Andrew story serves as the opening scene for a chapter that explores the exotic pet trade, the display of exotic animals, and what happens when those animals escape or are set free; it is aptly titled “Catch and Release.” Alagona’s prose is breezy yet informative as he describes how “facilities that keep captive animals tend to attract wild ones” in part because they “produce sounds and smells that waft across cities, beckoning curious creatures.” He also discusses wildlife rehabilitation centers, where the goal is not to keep animals but to treat and then release them. Alagona points out that these facilities “straddle the blurry line” between animal welfare groups, which often support care of individuals animals, and conservation groups, which view veterinary care as an ineffective method to protect species. After plumbing these depths, Alagona returns to the theme of animals and natural disasters that opened the chapter; he recounts the 2018 Woolsey fire near Los Angeles, which forced the evacuation of the California Wildlife Center. However, as with Hurricane Andrew, “the area’s wildlife fared better than its people.”
Alagona uses the same structure for a few other chapters in the book, including “Home to Roost,” which was one of my favorites. The chapter opens and closes with two different views of bald eagles. First, Alagona describes a pair of eagles that established a nest near Pittsburgh in 2010 and soon became “avian rock stars.” A camera nest allowed residents to watch the eagles’ every move, including the time the eagles consumed a kitten in the nest. Alagona not only reports on the variety of reactions to the kitten incident, but also astutely notes that “surveillance devices tell us as much about the people watching them as they do about the animals being recorded.” Second, Alagona describes eagles in Unalaska, where the ratio of people to eagles is 7 to 1 and eagle-related injuries occur regularly. The birds have been dubbed “Dutch Harbor pigeons,” which is a reference to the nearby fishing port and the less favorable view of the eagles. In between these bookends, Alagona delves into intriguing history. Among other things, he discusses the emergence of the field of urban ecology, which “sprouted from the ashes of bombed- and burned-out cities” following World War II.
The laws surrounding wildlife also experienced a shift in the middle of the twentieth century. Alagona notes that in the early twentieth century, the legal system focused on wildlife management and limiting trade in wildlife and certain types of hunting. States passed hunting and fishing laws while Congress passed the Lacey Act in 1900, which prohibited trade of wildlife taken in violation of state laws. Congress also ratified the North Pacific Fur Seal Convention, which prohibited the pelagic harvesting of seals. The focus shifted from “hook and bullet” conservation to biological diversity in the 1970s, as shown by the enactment of the Marine Mammal Protection Act and the Endangered Species Act. This legal transition was driven in part by the recognition that wild animals were part of an ecosystem and thus that habitat protection was an important element to conservation.
Alagona covers a wide array of urban habitats and their inhabitants in The Accidental Ecosystem, from pumas in Los Angeles to bats in Austin and from coyotes in Chicago to sea lions in Seattle. Near the end of the book, he talks about visiting Shoreline Park in Santa Barbara with a friend. His friend discovers a common cup nest. But this bird nest was different than any Alagona had seen before—it was a “dazzling piece of contemporary architecture” that included brown wool, blue string, yarn of various colors, cigarette butts, straw sleeves, and tinsel, among other things. He writes that the nest “said more about urban ecosystems and wildlife than the book I’d been writing for the previous five years. Yes, this book.” This prose is another example of Alagona’s readable style, but it understates the value of this book. The Accidental Ecosystem is carefully researched, well-structured, replete with compelling case studies, and thought-provoking; in short, it is a dazzling piece of contemporary environmental writing.
Gloria Dickie
W.W. Norton & Company, 2023
The opening scene of the movie Paddington shows the cloud-draped mountains of South America, as an explorer describes his journey to “Darkest Peru.” He encounters a rare type of bear, and years later, one of those bears makes his way to London and wins over the hearts of those who take him in. We learn in Gloria Dickie’s enthralling book, Eight Bears, that the original manuscript of the book that inspired the movie had Paddington hailing from “Darkest Africa.” But the author’s literary agent informed him that there were no bears in Africa. The author’s research for a new country of origin included a visit to the London Zoo, where he saw polar bears and grizzly hears. Neither fit the bill. Then, on a trip to the Westminster Public Library, he learned about the spectacled bear, which is a rare and little-known bear that calls the cloud forests of the Andes home and is one of the eight bears profiled in Dickie’s book.
This story highlights two key themes from Eight Bears. The first is ecological and centers on the perils faced by bears. The eight remaining species of bears are found on only four continents and threats to their survival include “climate change, population growth, and habitat loss.” Dickie notes that at the conclusion of her “odyssey from cloud forest to sea ice,” only three of the eight species “seemed destined to prosper beyond the end of this century”: polar bears, brown (grizzly) bears, and black bears. In this way, the future “reads like a fairy tale—The Three Bears.” This literary allusion ties into the second theme, which is cultural. Humans have a unique and paradoxical relationship with bears. Bears are predators and conflicts between the two species have increased over the last several hundred years. And yet humans have long revered bears, which may stem from our view of biological similarity with these “occasional bipeds.” Indeed, Dickie writes that she “was often struck by the leniency and grace extended toward the bears I encountered, particularly when compared with other predators.” This bond is reinforced by stories about Paddington and The Three Bears.
Before discussing the three bears with the greatest chance of success in the next century, Dickie examines the other five species: spectacled, sloth, panda, moon, and sun bears. The chapter on moon and sun bears is heart-wrenching because it focuses on how both species have been farmed for their bile. By way of background, bile has been used for medicinal purposes for centuries, but as Dickie explains, unlike other types of animal parts, “which have no proven benefits to human health, medicinal scientists have found that ursodeoxycholic acid—the active molecule found in bile—can reduce inflammation and lower cholesterol.” The molecule is particularly prevalent in animals that hibernate given the cell death that occurs during this dormant period and moon bear bile contains the highest level of ursodeoxycholic acid among all bear species. It turns out that not all bears hibernate, including sun bears, who inhabit the forests of Southeast Asia, and the moon bears in the southern portion of their range, but those people harvesting bile pay no attention to this distinction and extract it from both bear species.
Bile was traditionally harvested from bears by hunting and killing them, but several decades ago, there was a shift toward farming the bears to allow for ongoing extraction. Dickie details the process developed for harvesting the bile while the bears remain alive, and it can be difficult to read given the pain it causes the bears and the long-term effects of captivity. She notes that roughly 20,000 bears are believed to be on bile farms in Asia, but the book focuses on reporting she conducted in Vietnam. In 2005, Vietnam responded to pressure from animal welfare groups and banned bear farming for bile and began cracking down on cross-border trade. A loophole was created for existing farms that allowed the practice to continue, but in 2017, the Vietnamese Administration of Forestry committed to moving all captive bears to sanctuaries. Dickie profiles one of those sanctuaries, writing that the “forested oasis gave me whiplash from the conditions I’d witnessed in the infamous bear village” of Phung Thuong. She concludes that there are “glimmers of hope, rising over the horizon like the sun and moon, and casting their light into the darkest places.”
Whereas bile farmers capture bears for exploitation, those working in the Polar Bear Alert Program in Churchill, Manitoba, capture the “ice walkers” to minimize bear attacks on the people living on the shore of Hudson Bay. These attacks have increased as the sea ice season has shortened and the bears’ time on land has lengthened. Churchill’s Polar Bear Holding Facility, known colloquially as the “jail,” is “located in an old military aircraft hangar out on the tundra.” Some of the jail cells are air-conditioned to help the bears handle rising temperatures, which is ironic given that energy consumption for luxuries like air conditioning has driven the very climate change that threatens the polar bears. Like the moon and sun bears that have been moved to rescue centers, these jailed polar bears are released—they are tranquilized and transported to the “bay’s incoming ice edge” in advance of it freezing. Both forms of release offer some relief to the immediate problem, but both scenarios beg the question of whether these options are too little, too late.
Dickie’s book is a tour de force that seamlessly stitches together journalistic reporting with scientific material. Doubtless each of these eight bears would warrant its own book, yet Dickie’s prose strikes a balance between site-specific examples and overarching concepts. The book also serves as an interesting counterpoint to Alagona’s The Accidental Ecosystem because Dickie locates many of the stories at the wildland-urban interface. As with modern cities, this interface “presents all sorts of challenges to people and critters alike.”
Giovanni Antonelli, Michael Gerrard, Sara Colangelo, Giancarlo Montedoro, Maurizio Santise, Luc Lavrysen, Maria Vittoria Ferroni, eds.
Springer, 2023
This collection explores efforts to have courts in the United States and the European Union address the ecological challenges facing people and critters. The essays cover a wide variety of timely topics, from environmental justice to the rights of nature, and offer a diverse series of case studies, from state courts in Vermont and Hawai’i to the Italian court system. As I navigated this multiplicity, it became apparent that there exists a threshold issue built into the titular phrase “environmental law before the courts.” Namely, there are substantial barriers to getting an issue or claim before the courts, which means that some issues and claims may not be adjudicated. And even when a litigant can pass through the courtroom doors, there are structural barriers in the legal systems.
The chapter by Michael Gerrard, Jonah Baskin, Jennifer Kim, and William Kovach examines some of the barriers created by judicial interpretation of the U.S. Constitution. To begin, no court has found that the Constitution creates a right to a healthful environment. Moreover, judicial interpretations of many constitutional clauses “inhibit rather than advance” environmental protection. Some of this jurisprudence—such as that involving standing—may not be new to environmental practitioners and scholars, but the chapter looks at other clauses that touch on emerging issues in environmental law. For example, the authors explore whether the First Amendment applies to greenwashing and securities disclosures. They also delve into the Supremacy Clause and the idea of preemption in the context of statutes such as the Atomic Energy Act. In the process, they touch on several recent cases, which is true of many of the essays in the book.
In a compelling chapter, Sara Colangelo and Abigail André argue that “the persistence of environmental injustice in the United States has been fueled by broader, more fundamental gaps and barriers in various legal regimes.” One set of barriers can be found in the citizen suit provisions in environmental statutes. These provisions establish avenues for citizen enforcement that can further environmental justice, but built-in hurdles cabin their efficacy. They write:
Limited remedy provisions . . . render plaintiffs only able to obtain injunctive relief; in some cases, penalties are also only paid to the U.S. Treasury. These limitations not only control the type of remedy available, but also the scope of harm considered: citizen suits generally cannot offset past, cumulative, recurring, or potential harm.
Thus, citizen suits may not be able to redress long-standing inequities. The authors also explore tort law, and in particular nuisance law. While torts allow for remedies that are retrospective, “they cannot be used to prevent future harm or improve environmental conditions.” Citizen suit provisions and tort principles highlight the intriguing temporal challenge of environmental law. As Erin Daly notes in the book’s foreword, “courts are used to remedying wrongs that happen in the here-and-now, but environmental harms evolve over time and remedying environmental harms can take years or decades—far beyond the temporal horizons of most court cases, or the patience of most judges.” Colangelo and André also discuss how nuisance law can be an imperfect tool given the “problems of complex causation, including background hazards present in the community, workplaces, and homes.” Despite the gaps and barriers, however, the authors also describe the promise that environmental litigation holds for tackling environmental injustice.
The promise of environmental litigation has been realized in the context of protected areas, as shown by Colin Reid’s cogent analysis of the Court of Justice of the European Union (CJEU) decisions relating to the EU’s Birds Directive and Habitat Directive. These directives “do not themselves apply directly within the Member States but require all the States to ensure that they have in place domestic laws that fulfil their requirements.” In the Poitevin Marshes case, for example, analyses of “ornithological significance” identified between 58,000 and 78,000 hectares as critical for bird conservation, yet France designated less than 27,000 hectares as a Special Protection Area. The CJEU found this to be inadequate. Reid acknowledges that this type of protection is imperfect and lacks “reliable rapid intervention,” but he concludes that the CJEU “ensures that the legislation is not just an empty promise, but a valuable tool for protecting nature across the EU.”
Matthias Keller, a judge in Germany, examines environmental litigation in that country’s courts and describes recent advances in the rights of young people focused on climate change and in the legal standing of nongovernmental organizations (NGOs). Keller opens his chapter with a lucid explanation of the history, structure, and style of the German judicial system. Against this backdrop, he explores the “groundbreaking” decision from 2021 that struck down parts of the Federal Climate Protection Act because, although it had established specific emission reduction targets that had to be met by 2030, it failed to provide specific targets for 2031 and beyond. Keller discusses NGO standing in the context of “Dieselgate.” In the wake of the defeat device litigation in the United States involving Volkswagen, the car company had to develop new software. In turn, that software was approved by the German Federal Motor Transport Authority, a decision challenged by the NGO Deutsche Umwelthilfe. The relevant statute allows public interest litigation for a certain set of administrative actions, but this type of product approval is not on the list. The German court addressing the challenge sought a preliminary reference from the CJEU, which held that Deutsche Umwelthilfe had standing based on the CJEU’s reading of the Aarhus Convention and the EU Charter of Fundamental Rights.
In the context of the Dieselgate decision, Keller writes that “it is exciting to see how a foundational question of the justice system, like NGO standing, suddenly emerges from a quite technical and unspectacular context.” I think this quote captures the essence of this collection, which is full of gems that emerge from courtrooms in the United States and the European Union.
