Conservation, Regulation…and Uncertainty - PART ONE
By Russell JuelgMarch 4, 2010
Whenever land is slated for development in the Pinelands, one of the most significant and contentious issues is liable to be the protection of officially listed threatened and endangered (T&E) species. In the course of trying to achieve this, determining the presence or absence of T&E species is one of the first—and only one of many—questions to be addressed.
Normally, on a piece of vegetated land, it is only possible for a person to be certain that specific populations of T&E plants are present. It is virtually impossible to be certain that any and all potential T&E plant populations are absent. This situation generates a problem for the Pinelands Commission, and the Commission has yet to address this problem in a consistent fashion.
The New Jersey Pinelands Comprehensive Management Plan (CMP), clearly mandates the protection measures for T&E plants with the provision: “No development shall be carried out by any person unless it is designed to avoid irreversible adverse impacts on the survival of any local populations of those plants designated by the Department of Environmental Protection as endangered plant species pursuant to N.J.A.C 7:5C-5.1 as well as the following plants, which are hereby found and declared to be threatened or endangered plants of the Pinelands…” (A list of Fifty-four species follows).
While a proper analysis of this provision requires careful definition of all the terms, one thing is absolutely clear. Until we know whether or not any of these species is present on a proposed development site, we cannot proceed to determine whether the proposed plan complies with the rule.
Notice, the provision does not say, “A development may be carried out unless someone proves that it will cause irreversible adverse impacts….” It says, “No development shall be carried …unless it is designed to avoid irreversible adverse impacts ….”
There are several basic scenarios that justifiably can materialize within this framework, but all of them begin with the primary question, “Are there any T&E plant populations on or near the site?” When the answer to this question is “yes” the logically required follow-up question must be, “Has the development been designed in such a way as to avoid irreversible impacts to the population?” If the answer to this question is clearly “yes,” the development may go forward. If the answer is clearly “no,” the development may not go forward.
Of course the issue in both cases turns to the clarity that is needed with respect to evaluating the anticipated impacts of the proposed development. But this problem is generated only if one or more T&E plant populations are acknowledged to be on site. What if the answer to our primary question is not “yes”?
Under most circumstances the only reasonable answer to the primary question, other than “yes,” is “We don’t know.”
The reason for this is twofold, the first logical, the second practical. Logically, a lack of evidence for the presence of T&E species on a site can never lead to the conclusion that such species are in fact not there. This would be a case of argumentum ad ignorantiam. Whether one has searched a little or a lot, carelessly or competently, it would be a simple fallacy to claim that the absence of evidence for the presence of T&E plant populations on a given piece of land proves that such populations are absent.
From a practical perspective, several contingencies make it virtually impossible to know that any and all of the T&E species that may possibly occur on the site are indeed absent. For example, there are some very cryptic species that do not reveal themselves (or they remain virtually unidentifiable) except at certain times of the year or under certain specific conditions. There is also the question of the competency and integrity of the person doing the field research. And then there is the problem of simple human error. Even the most competent botanist can miss things.
So, one might argue that, strictly speaking, it is impossible to comply with the terms of the regulation. We can never be 100% sure that a site is free of any and all T&E plants that may possibly be there. And, without that surety, we cannot logically proceed to the next step of claiming that the proposed development is designed to avoid the impacts referred to in the rule.
The inevitable result is that the Pinelands Commission has no recourse but to implement the rule in a modified fashion. The Commission implements the rule as if it were written, “No development shall be carried out by any person unless, in the judgment of the staff, there is a low probability of T&E plant populations occurring on the proposed development site, and, with respect to any T&E plant populations that do happen to be discovered, it is designed to avoid irreversible adverse impacts on their survival.”
It may very well be that the Commission has no reasonable alternative but to implement the rule this way. But it opens another whole can of worms. How does the Commission define the expression “low probability”?