Harmful Non-Indigenous Species in the United States - Aquatic ...

202 Harmful Non-Indigenous Species in the United StatesBox 7-A—Mahine v. Taylor; A Key Constitutional DecisionThe Commerce Clause of the U.S. Constitution grants to Congress the power to regulate international andinterstate trade. This grant puts limits on, but does not eliminate, the power of States to ban imports of NIS. Thelimits were outlined by the U.S. Supreme Court in a 1986 ruling on the constitutionality of a Maine law thatprohibited importation into the State of “any live fish, including smelts, which are commonly used for bait fishingin inland waters.” The case of Maine v. Taylor upheld the law even though it clearly discriminated againstout-of-state bait fish dealers. The Supreme Court applied a two-part test for validity under the Commerce Clause:“the statute must serve a legitimate local purpose, and the purpose must be one that cannot be served as wellby available nondiscriminatory means.” The Supreme Court approved a Iower court’s findings that both parts ofthe test had been met:First, the lower court found that Maine “clearly has a legitimate and substantial purpose in prohibiting theimportation of live baitfish,” because “substantial uncertainties” surrounded the effect that baitfish parasites wouldhave on the State’s unique population of wild fish, and the consequences of introducing nonnative species weresimilarly unpredictable . . . . Second, the court concluded that less discriminatory means of protecting against thesethreats were currently unavailable, and that in particular, testing procedures for baitfish parasites had not yet beendevised.... “[T]he constitutional principles underlying the commerce clause cannot be read as requiring the Stateof Maine to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientificcommunity agrees on what disease organisms are or are not dangerous before it acts to avoid suchconsequences.”The Supreme Court has long upheld State quarantine Iaws that, notwithstanding the Commerce Clause, banimportation of pests of known significance. Importantly, the Maine v. Taylor ruling upholds ban based on threatswhose significance involved “substantial uncertainties.” This gives States leeway in drafting laws on NISimportation in the face of such uncertainties so long as they do not needlessly discriminate against out-of-Stateinterests.SOURCES: 12 Me. Rev. StatAnn. see. 7613; Mainev. Taylor, 477 US. 131 (19S6).which species are imported and/or released.Congressional incursions on this traditional Statecontrol over fish and wildlife have been limitedand controversial (16). In contrast, several majorFederal laws—such as the Federal Plant Pest Actand the Federal Noxious Weed Act—set nationalpolicy for weeds and other plant pests.Where Federal programs miss significant problems,States, in effect, determinethe success ofnationwide efforts to manage harmful NIS. Thereare important limits to the States’ capacities,however.The Constitution vests the power to regulateinternational and interstate commerce in Congress.3 Therefore, States cannot unnecessarilyrestrict such commerce. The key Supreme Courtcase is Maine v. Taylor (box 7-A). As a result ofthe Commerce Clause, States lack the power tostop the importation and release of a potentiallyinvasive NIS in a neighboring State.A few States, e.g., Hawaii and Alaska, havegeographical barriers against the interstate spreadof NIS. A small number of States, like California,have border inspection stations to interdict pestsin transit. Without these kinds of barriers, a Statecannot do much to slow the influx of Stateprohibitedplants or seeds that were acquiredlegally in another State or country (53). Nor cana State effectively stop mail-order sales of plantsor seeds it prohibits, as policing the mails is aFederal function.s U.S. Constitution Article I, section 8, clause 3.