Legislation For The Birds
[Rachel's Introduction: "Little recognized was the fact that for the first time in N.J. environmental law, the Legislature embraced a true precautionary principle. The scientific standard in the law should serve as a model and precedent."]
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By Bill Wolfe
Today, governor Corzine signed legislation establishing a moratorium on the harvest of horseshoe crabs. The law is designed to protect the food supply of the red knot -- a migratory bird that stops to feed along the Delaware bayshore -- and hopefully prevent extinction of the species.

Little recognized was the fact that for the first time in NJ environmental law, the Legislature embraced a true precautionary principle. The scientific standard in the law should serve as a model and precedent. Driven by the steeply declining populations of the red knot, the new law shifts the scientific and legal burden from DEP to show that the species is harmed, to the fishing industry to show that any horseshoe crab harvest will not harm the recovery of the red knot and several other migratory birds. This is an important policy shift and thus far ignored aspect of what is otherwise a band aid on a dire situation.

The legislatively imposed moratorium was made necessary by the veto of a DEP imposed regulatory moratorium by the NJ Marine Fisheries Council. Outrageously, that Council is unique because it has the legal power to block and over-rule regulatory decisions by the DEP Commissioner. Commercial fishing interests dominate the Council. In this case, those commercial interests recklessly ignored the science and arrogantly jeopardized the extinction of this magnificent migratory bird that feeds on horseshoe crab eggs laid on Delaware Bayshore beaches. (Read all about the red knot here.)

Unfortunately, the legislative moratorium is a piecemeal solution that failed to resolve the underlying causes of a much larger set of problems that adversely affect the entire marine ecosystem. Although the legislation was critically important, the red knot moratorium is an illustration of what's wrong with the Marine Fisheries Council and what must be fixed to reform that Council.

We should not have to drive species to the brink of extinction before acting. And we should not allow the fate of species and entire ecosystems to be controlled by narrow special interests. Fisheries, wildlife, coastal, water, and natural resources of the State are publicly owned resources that are held in trust and managed by DEP - the "public trust doctrine" is incompatible with the current powers and composition of the NJ Marine Fisheries Council.

The causes and real problems result from: 1) the veto power; 2) the dominance of the Marine Fisheries Council by commercial fishing interests; and 3) the failure to subject the Council's management decisions to scientific and public interest standards.

Commercial interests on the Council have abused their authority and acted for selfish economic reasons in defiance science and the public interest. No other industry has the power to veto regulations by DEP - it is absurd to continue to allow this veto power to be exercised for narrow economic interests, for arbitrary reasons with no accountability to science or the public interest.

The Legislature needs to act to revoke the Council's veto power; broaden and balance the composition of the Council; and subject the Council to scientific and public interest standards. These legislative changes are required to assure that the Council is a scientifically sound resource management body that acts in the public interest.

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