California | When the bumblebee is considered a fish

In California, some bumblebees are part of the fish world. At least that is the opinion of a golden state appeals court, due to the vagueness of an endangered species protection law.

Mathieu Perreault
The Press

Environmental organizations requested as early as 2018 the inclusion of four species of bumblebees on the list of endangered species. In 2020, a court ruled that was impossible, since California’s endangered species law does not include insects – only birds, reptiles, mammals and fish.

the snail

A new judgment considers that bumblebees can be included in the category of fish. In the 1980s, a land snail (Monadenia setosa) had been protected by its inclusion in the category of fishes, already extended to marine invertebrates.

If a land mollusk can be considered a fish, an insect can also be, reasoned the Court of Appeals for the Third District of California.

bumblebees

Of the four newly protected species in California (Bombus suckleyi, Bombus franklini, Bombus occidentalis and Bombus crotchii), two live in Canada and are also considered threatened there. The most fragile is the western bumblebee (Bombus occidentalis), whose range is only a few hundred kilometres. He was last seen in Oregon in 2006.

Food companies that challenged the protection of these four bumblebees have announced that they will appeal the case to the Supreme Court of California. “We will certainly use this precedent to protect other insects, in particular the monarch butterfly,” says Deborah Seiler, from the environmental NGO Xerces.

Textualists and intentionalists

The judgment is an example of a broader legal debate in the United States, according to Lawrence Solum, a constitutional expert at the University of Virginia. “We have spoken a lot about the originalists or textualists of the Supreme Court, who refuse any interpretation of the Constitution beyond the words which are there, explains Mr.^e solum. The debate between the textualists and the intentionalists, who consider that the Constitution is “living” and that one must exegesis of the intentions of its authors, is at the heart of the clash over Roe v. wade [consacrant le droit à l’avortement]. But it also plays out at the state level. »

“At the national level, it had its peak in the 1950s and 1960s. For 40 years, textualist interpretation has become more and more essential at the national level and in the States”, maintains Lawrence Solum.

change the law

Changing the Constitution is difficult, which makes interpreting the intentions of its framers crucial. But in California, Democrats control Congress and can quite easily introduce or strengthen environmental laws.

Wouldn’t it be easier to add insects to the law protecting endangered species? “Intentionalists would rather say that if you want to limit the scope of a law, you have to do it specifically,” replies Ms.^e solum.

Dams and fisheries in Quebec

In Canada, it is not necessary to classify bumblebees as fish to protect them, according to Anne-Sophie Doré, of the Quebec Center for Environmental Law. She thinks a parallel would be the use of federal fisheries law to protect lake species that are not commercially fished.

M^e Dore spoke to The Press of a recent judgment on a Fisheries and Oceans Canada lawsuit against the Quebec government, which modified a dam on Lac Polette, on the North Shore, and caused a drop in the level of the lake.

“That said, when we repair a dam on a lake, we must necessarily notify Fisheries and Oceans in addition to the provincial Department of the Environment. »

Benoît Pelletier, a constitutional expert from the University of Ottawa, also believes that the case of Lac Polette seems to mean increased federal intervention in environmental issues, as we can see in the case of woodland caribou. Before, “for dams, Fisheries and Oceans counted on the fact that the provincial authorities would protect the environment”.