Executive Order 13112 on Invasive Species


February 3, 1999

By Tom McDonnell, Director of Natural Resources

American Sheep Industry Association

President Clinton's Executive Order on invasive species was signed today.

While noxious plant and animal species like Russian knapweed, leafy spurge, nutria and the gypsy moth are and should be of concern to agriculture and the American public, this executive order goes far beyond the control of noxious species.

As defined within the executive order, dogs, cats, wheat, barley, rice, and domesticated livestock could be considered invasive alien species.

Federal agencies under section 2 of the Executive Order are directed to 1) prevent the introduction of such species; 2) control populations of such species, and; 3) provide for restoration of native species and habitat conditions in ecosystems that have been invaded.

This executive order has major ramifications not only on agriculture within the United States, but also on the daily lives of every American.

The first paragraph of the executive order on invasive species directs federal agencies "to prevent the introduction of invasive species and provide for their control and to minimize the economic, ecological, and human health impacts that invasive species cause." The definitions under Section 1 are critical to understanding the far reaching scope of this statement.

To quote the executive order, "alien species means, with respect to a particular ecosystem, any species including its seeds, eggs, spores, or other biological material capable of propagating that species, that is not native to that ecosystem."

Because the executive order fails to define domesticated species, most agricultural crop and animal species would clearly fall within the definition of alien.

Domesticated pets, many houseplants, and Kentucky bluegrass used in most lawns and golf courses would also be defined as alien species under this executive order.

With the administration's preoccupation with indigenous people, some races of man may also be considered alien.

Genetically modified and hybrid species of plants can also be defined as "alien species" under this order because they contain "biological material capable of propagating that species, that is not native to that ecosystem".

The definitions of "invasive species", "introduction" and "ecosystem" are also key to understanding the scope of the order.

Invasive species "means an alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health."

Introduction means "the intentional or unintentional escape, release, dissemination, or placement of a species into an ecosystem as a result of human activity."

Ecosystem "means the complex of a community of organisms and its environment."

An ecosystem, therefore, can be as small as a mud puddle with microorganisms swimming in it, and as large as the entire earth.

Because the definition of ecosystem is so broad, environmental harm can occur when a sheep or cow drinks from a water trough and disrupts and damages the ecosystem within that trough.

Planting wheat, barley, fruits and vegetables can disrupt and harm the microorganisms within the soil ecosystem.

Planting crops also harms biodiversity by replacing a multitude of native plant species with a monoculture.

Vaccinating or giving humans and animals antibiotics for disease can cause harm to the community of organisms causing disease within the human body, also an ecosystem.

Forest succession cannot occur unless competition by the trees causes harm to the early successional ecosystems of grass and brush.

Bottom line -- in a world where all animal and plant species compete to some degree and there is survival of the fittest -- no human, plant or animal species can survive without causing harm to another ecosystem.

Note, however, that this executive order only addresses the ecosystem "harm" caused by alien species introduced by man, and not the ecosystem "harm" caused by native species.

Based on these definitions, all alien species are also invasive species, which the President directs federal agencies to study, monitor and control.

Also based on the breadth of the executive order's definitions and the demonstrated propensity of federal regulators to interpret regulatory language in its broadest sense, this executive order should give rise to great concern.

For example, Congress defined "navigable waters of the United States" to be waters where ships involved in interstate commerce traveled.

Federal agencies expanded the definition of navigable waters to mean waterways where shipping commerce occurred and their tributaries.

With the Migratory Bird Act, administered under the Commerce Clause, navigable waters of the United States was expanded to mean any waters utilized by migratory waterfowl.

The Environmental Protection Agency went so far as to argue before the federal courts that "navigable waters of the United States" included prairie potholes because a goose may glance at, and consider using, the water within the potholes.

If federal agencies can interpret "navigable water" so broadly it is not difficult to imagine how the definition of invasive species and the directive under Section 2(2) calling for the restoration of native species and habitat conditions could be interpreted.

The draft executive order on invasive species released in May 1998, raised questions whether this executive order was being used to implement Section 8(h) of the Convention of Biological Diversity -- a treaty that has not been ratified by the Senate.

It is interesting to note that the final draft of the executive order added the Secretary of State to the Invasive Species Council in Section 3.

It is unclear whether the State Department under Section 2(b)must approve the Invasive Species Management Plan, approve federal agencies working with international organizations, or both.

It is also interesting to note that recommendations for international cooperation in addressing invasive species are to be developed under Section 4(b).

Section 2(3) directs agencies not to authorize, fund, or carry out actions that they believe are likely to cause or promote the introduction or spread of invasive species in the United States unless the benefits of such actions clearly outweigh their potential harm caused by invasive species.

This directive has major ramifications on clean water, and wetlands permitting, grazing, timber, and mineral leases, and federal funding of animal and plant research within federal agencies such as APHIS and ARS or within universities. The ramifications of this section need to be fully investigated.

In closing, a full legal review of this executive order is still needed, as the full scope of this order is not covered within this memo. This review should be conducted by Congress, state and local government, health agencies, universities and industry.

It is absolutely essential that domesticated livestock and crop species be defined and humans and domesticated species be exempted from the definition of alien species.

It is also absolutely essential that the control and eradication of diseases, even if they are native, be exempted from this executive order. If the administration does not address these changes, Congress should revoke the order.