Volume 2000    Issue 4

The Virtues of “Command and Control” Regulation: Barring Exotic Species from Aquatic Ecosystems

Sandra B. Zellmer^*

The Clean Water Act asserts the ambitious goal of eliminating water pollution and protecting the chemical, physical, and biological integrity of U.S. waters. Yet the EPA, in enforcing the Act, currently exempts from regulation a significant source of pollution in U.S. waters: ballast-water discharges from commercial shipping vessels. Ballast water from commercial vessels is a primary vector for the introduction of exotic plant and animal species into U.S. waters. The invasion of these species poses an increasing threat to native biodiversity; the invaders prey directly on native fish and wildlife, compete for food and habitat, and introduce disease and parasites into commercial waterways. Given the severe economic and ecological consequences associated with exotic species, the lack of regulatory mandates is a critical omission in U.S. environmental law.

Ongoing debates on environmental regulation focus on the appropriate form for pollution restrictions. Specifically, the debates center on whether the use of economic tools, such as subsidies or taxation, or regulation under technology-based permit regimes is more effective in reducing pollution levels. In this article, Professor Zellmer suggests that regulation of ballast-water discharges under the Clean Water Act (CWA) would significantly reduce exotic invasions in U.S. aquatic ecosystems and is preferable to economic approaches. The article argues that the current regulatory exemption for ballast-water discharges is inconsistent with the plain language of the CWA. It outlines the advantages of a regulatory program and addresses the practical implications of implementing the CWA permit system in the context of ballast-water discharges.

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* Associate Professor, University of Toledo College of Law. LL.M., George Washington National Law Center; J.D., University of South Dakota; B.S., Morningside College.

The author would like to thank the International Joint Commission for the invitation to speak at its exotic species workshop. In addition, thanks go to Professors Zygmunt Plater and Oliver Houck for their input, and to Professor Susan Martyn, Dorn Carlson of the U.S. EPA, and Brent Foster for commenting on previous drafts. The assistance of Carolyn Salzmann, J.D. candidate, University of Toledo College of Law, in the preparation of this article is also acknowledged with gratitude. This article was written with the support of a University of Toledo research grant. An earlier version of this article, entitled Enjoy the Donut: A Regulatory Response to the White Paper on Preventing Invasions by Exotic Species, is published in 2 Tol. J. Great Lakes’ L., Sci. & Pol’y 207 (2000).