Only 30: A Portrait of the Endangered Species Act as a Young Law

On 27 December 1973, President Richard Nixon publicly reduced his energy use by flying to California on a scheduled commercial airline flight. The following day, from his home in San Clemente, Nixon signed several pieces of legislation into law. One of these—a new manpower initiative—was front-page news in the 29 December New York Times. The others, listed only as bullet points at the end of the article, included an authorization for a Lyndon B. Johnson memorial tree grove, a bill enabling federal insurance for fire safety equipment in nursing homes, and a wildlife protection measure known as the Endangered Species Act (ESA) of 1973. Thirty years later and about 120 miles up the coast, a diverse group met for three days in Santa Barbara to review the consequences of that now-historic presidential signature. In the time since its enactment, the ESA has become perhaps the most divisive environmental policy issue in the country. The goal of the “ESA at Thirty: Lessons and Prospects” conference, hosted and cosponsored by the Donald Bren School of Environmental Science and Management, was to bring together prominent individuals from all sides of the ESA debate in an effort to defuse rhetoric and find common ground. Participants ranged from the person who has been credited with wielding more control over the ESA today than the government itself—Kieran Suckling, of the Center for Biological Diversity—to the Bush administration's own man in charge, Craig Manson, assistant secretary for fish, wildlife, and parks at the Department of the Interior. Industry leaders, activists, environmental attorneys, consultants, planners, academics, agency biologists, managers, and elected officials all were held in close quarters by an agenda that spilled across breakfast, lunch, and dinner. Much was said and, despite some sharp differences, the parties expressed considerable agreement both on the nature of the problems the ESA now faces and on the direction in which solutions must lie. Defenders of the act agreed that there is a pressing need to address some of its shortcomings and unintended consequences; ESA critics acknowledged both the validity of its purpose and the need for some government regulatory mechanism for protecting species. In the end, the success of the conference may have been simply in bringing greater clarity and legitimacy to a question that seemed present throughout: Can the seemingly contradictory imperatives of increased conservation effectiveness and reduced economic burden be reconciled in some widely acceptable kind of ESA reform? The ESA was once, to the extent that it was noticed at all, a very popular law. Its prodigious powers first gained widespread public attention when the Supreme Court ruled in favor of the snail darter in 1978, halting contruction of the Tennessee Valley Authority's Tellico Dam. Ever since—but particularly in the last 10 years—dissatisfaction with the act and its enforcement has grown, among both conservationists and regulated groups. Critics claim the ESA is taxonomically biased, insufficiently funded, and overwhelmed by litigation. It fails to provide adequate incentives or enforcement, and sometimes punishes good deeds. It is subject to conflicting political, legal, and regulatory mandates and is completely intractable as a conservation mechanism on private land. It impedes economic development and imposes costs and obligations unfairly. It maintains but seldom recovers species, and it does nothing to prevent species from becoming threatened in the first place. By legal standards, the ESA is still young, and its implications and imperfections are still being revealed and addressed. Underlying some of the recent contentiousness surrounding the act is an ongoing coming to terms with its most original and enduring ideas, a process still unfolding in a world that has changed greatly since 1973. The ESA drew upon a body of knowledge still new to science, and values just finding widespread societal articulation, to boldly address the phenomenon of species extinction not as a peripheral or aesthetic concern, but as a problem of deep biological and moral significance. Accordingly, it introduced a new and fundamental prohibition into the conduct of human affairs: to not jeopardize the continued existence of another species. It offered comprehensive legal protections to species—and even subspecies—found to have become perilously rare, and it specified that only biological criteria should be used to decide when and where these protections should apply. What seems most remarkable today is that the ESA's unqualified affirmation of the value of species survival, over and above monetary considerations, was approved by the US Senate 92 to 0 and received only 12 dissenting votes in the House. The basic notion that limits must be set on human activities to preserve the biological world has resonated strongly with the American public and has seldom been seriously challenged. “Save the humans” rhetoric notwithstanding, the argument that such limits should not exist is seldom raised in public debate. Contentiousness emerges from all the particulars that the imposition of limits entails, from issues of definition and interpretation, of jurisdiction and enforcement, of efficacy, and perhaps above all, of fairness. Those yes-voters in the Senate, many of them at least, did not foresee what was coming. Without a doubt, the ESA has done some good. The bald eagle and peregrine falcon are well-known success stories, and their value should not be overlooked. But of over 1300 species that have been listed since 1974, only 18 have been delisted on the grounds of recovery. Most of these were exceptions to the general rule of species endangerment, in that the principal threat they faced was not habitat loss. With numbers like that, it's easy to make the ESA look bad. Delisting, however, is not the only, and perhaps not the best, measure of success. Although the law does point to species recovery, it often has little power to reverse the factors that caused a species' decline. Few delistings may indeed point to the inadequacy of recovery planning efforts; environmentalists have long argued that greater funding for recovery programs is needed. Formal recovery plans developed under the ESA carry no added regulatory authority, however, and in many cases are never developed. The act's real strength lies less in its ability to promote species recovery than to prevent species extinction. In this regard it has, at least arguably, been effective. Relatively few listed species have gone extinct, and more are stable or increasing than not. By these and other measures, being on the list is good for species in trouble. But as several speakers pointed out, many listed species will probably always remain dependent on the protections that the ESA provides. The other controversy is over how well the ESA is working functionally, as an instrument of conservation policy and as a law affecting land use on public and private lands. Here there is greater agreement: The ESA is struggling. Many of its problems are ultimately the result of external pressures not foreseen at its inception: a turbulent and transforming global economy, growing ideological divisions and resource conflicts, a shrinking biological world, and a mushrooming vortex of species endangerment. Under this onslaught, themechanisms written into the ESA to protect species are breaking down, beginning with the listing process itself. It didn't take long after the ESA was enacted for a lengthy waiting list of candidate species to form. Since the late 1970s, the US Fish and Wildlife Service (FWS) has tried by various means to reduce this backlog, or to carry on despite it, though always under the basic constraint of inadequate funding to get the job done. Progress on listing actions has been uneven over time, sometimes sped up by lawsuits and sometimes slowed by policy shifts and budget cuts. Under the current administration, listing has proceeded at the slowest pace since the early 1980s. But over the entire history of the ESA, listings have averaged just over 40 species per year, and the development of recovery plans has not even kept up with listing. At that pace, critics point out, it would take over 150 years just to list all of the over 8000 “G1” and “G2” US species that NatureServe, a nonprofit conservation organization (see www.natureserve.org), currently recognizes as imperiled. Political, budgetary, and legal pressures also greatly influence how the act's protective mechanisms are applied. The strongest protections the ESA offers are its prohibitions on federal actions that may jeopardize a species or its habitat. It is these federal agency directives, contained in section 7 of the act, that stopped construction of Tellico Dam and slowed logging of national forests in the Pacific Northwest. Section 7 is implemented through a process of consultation between the FWS and the agency proposing to fund or carry out an action that may affect listed species. Through this process, agency biologists determine whether and to what degree a species or habitat may be jeopardized by a particular project (such as the construction of a new highway) or program (such as the management of reservoir releases by the Bureau of Reclamation or the issuance of grazing leases by the Bureau of Land Management). One of the ESA's unarguable achievements is to have institutionalized conservation considerations in federal agencies. Programs and policies are routinely developed with a view toward minimizing section 7 conflicts, and this constraint alone produces real—if hard to measure—conservation benefits. Most proposed actions are in fact approved by the FWS with little or no modification required. But even in these cases, for agencies and private parties awaiting approval, the time required for formal consultation can be frustrating and sometimes costly. And then there are the few cases in which a jeopardy finding blocks some action of significant economic or social magnitude—the cases that make headlines. Determinations that a project may have negative impacts are issued in formal “biological opinions,” in which the FWS presents the scientific case for its decision. Often it's a tough call: How will a rare species, about which scientific knowledge may be fairly limited, respond to some new form of disturbance? The science may seem less certain than the economic impacts, particularly to nonscientists affected by the ruling. In all of these respects, it should be emphasized, the law is working more or less as intended: Consultation is supposed to halt or at least slow actions that, based on the best information available, would put a species at risk of extinction. The difficulty is that the pace of consultation is slower, the scope is greater, and the stakes are higher than ever before. Not surprisingly, challenges to FWS decisions on whether to list a species, and to the findings and regulatory decisions that emerge from section 7 consultation, are the most common of the more than 450 legal cases that have been filed under the ESA since 1974. A growing trend in recent years has been lawsuits challenging the legitimacy of the science upon which the FWS based a particular decision. All of the litigation—both from environmental advocates and from the regulated community—has greatly reduced the ability of the FWS to set its own priorities regarding ESA implementation. Whether this is a good thing or not depends on whom you ask. For advocates like Suckling, lawsuits are the only way of forcing the FWS to do the things the law tells it to do, such as designate critical habitat for listed species (see box 1). But responding to lawsuits and court orders also makes more work for an agency already struggling to fulfill its other responsibilities. For the FWS, the one way of reducing its political and legal has been to a fairly to implementation. has the agency a basic of in its of the but it has not always in the of species agency to its to new or The risk then is that conservation reduced to with a speakers at the conference a kind of that in after a species is In recovery for it may be to or an set of these are In the listing as a kind of environmental in slow with few species being to from the waiting of some have for over a to the where they basic where recovery action may or may not be on their In most cases, the means a more and in the species may be by the time it makes it the of listed species, in are as that recovery programs on by listing in their Species with recovery programs do in fact to But a few species the of all recovery a the that the scope and comprehensive protections of the ESA are reduced in by a of decisions that out which listing and recovery actions are to be to which species. is by on agency But funding are to result in more of the their may be just the to programs and the FWS all the more to species based on to and then through the often and process of critical habitat and recovery may not be the most way to however, the in which ESA now is Contentiousness is the where need is the species or human are at Not surprisingly, the in where the ESA is to protect species on private lands. with habitat being the threat for most species, it is to private land that conservation must now of the is and of listed species use these lands. do of and, many of with good the ESA and the FWS with and The of that and of new incentives for conservation on both private and public one of the at the “ESA at Not all species, of can from the of habitat that may still be by human For such species in and protective prohibitions are but they have their are and often may they do little to recovery. management that to conservation and economic a one that recognizes and upon values with a public than to such an and some of new and the of the At least three exist to greater by in habitat conservation and The first is section of the act, which the of listed species or through modification of habitat. such prohibitions are they present a problem for The fact that a listed species can or and can even a for that in his land for in some may even be as no Since the to the ESA have a of new programs to or the conservation of section (see box The effectiveness of these has been limited, however, by the the FWS itself. a agreement or habitat conservation is as a and frustrating A habitat project that may result in some take of the species habitat is being can be for or years the of and is a process is only to the who for it only the of and risk about the The is a general of incentives to make conservation All the FWS can is of the of and on land though may not be for to to reduce grazing and on of their land. the FWS some new mechanisms for incentives to private habitat conservation But significant funding for these programs has been slow to and to some extent it has at the of funding for listing and recovery as a the at reducing on private and the programs incentives for habitat protection in for reduced have a most these programs may be an toward a more and to one that on between the federal and private Many however, the new programs only ESA protections of both legal and with little conservation in a more are than ever only for with the and to among a of a lengthy process, and with other for What all of this fails to is what many at the conference said is most of a of and between regulated and environmental One for is Often what most of all is simply a of what the are and what is of In as several speakers emphasized, regulated some that they are more than simply with that real conservation are being private is to said of the American Bureau the of and to species But the act to The is in an between the need for agency and on the one and the need for regulatory and of the nature of conservation science, on the The conference with what seemed to be agreement on a of that and make the ESA more effective. The trend toward conservation must but it must several present Programs need to be and in ESA should be and the science decisions should be more was agreement also that must take on a greater in since it is at and that most of the decisions affecting habitat are The question of how more be to under of the ESA will be an ongoing subject of debate. A few programs exist that may provide a for greater of Species for federal and agencies on all issues in the and and conservation private Whether all this can be the of the ESA is a question that The need for widespread in habitat conservation may point to the need for a one toward species from becoming threatened than halting their toward extinction. an may not be on the present political but it may be where the current of ESA is the Endangered Species Act (ESA) has become a the is the issue of critical habitat. to the at the time of the US Fish and Wildlife Service (FWS) or the Service must designate of habitat for species and the agency that such would not the species. Whether critical habitat does in fact listed species is an as a kind of or critical habitat is a legal that only to federal agency actions under section 7 of the Its is to to the that federal actions not jeopardy to the species, the that actions not critical habitat such that to the species may The FWS has long held that, as a protective critical habitat is most often action that be on the grounds of of critical habitat is most one that would have been on the grounds of by the own of the critical habitat are Accordingly, since the the FWS has ruled that was not in the of cases it has on the other that critical habitat protections and that exceptions to the should be such as the Center for Biological have the FWS to a of cases in which been ruled at the time of listing. The the “ESA at conference that is indeed to protect that are for recovery even a species is also that federal agencies to be more and for when critical habitat is in place. A significant is that critical habitat an of economic have become the of a new of by the regulated in to recent by environmental groups. The question of how to the economic impacts of is a The that critical habitat offers little protection would seem to that on its would have little added economic The have this however, and in one for of impacts that may with other listing. the critical habitat controversy has spilled over into of the economic costs and of listing the ESA seemed to of the conference that critical habitat is the least of the critical habitat from the and no one would Fish and Wildlife Service has been to its out and economic with a recent of FWS that listed species with critical habitat are more than as as it to be and other conservation advocates that critical habitat was their in the which they would not a Since its in 1973, and with the Endangered Species Act (ESA) has a of new and programs to regulatory and promote conservation between the federal and private were the first significant to ESA to for habitat have become the act's means of between listed species and or land development on the of in which (such as habitat by must be by (such as an or greater of habitat or The by an may be a of a few are the most as in exist an of 40 of a ESA have the as to development may exist as of a or as between the US Fish and Wildlife Service (FWS) and private from in that their purpose is to conservation management on private by the threat of or should listed species or in with a more recent are in that they protect who their land in a to candidate species from should the species be were by a the FWS to issue take to in which listed species may be to of the and present under section of the ESA, the of adequate to ESA were under the administration's which the of already and management under such as the on the of some as species. Whether all of these provide a means of conservation on private or just a means of ESA is a of debate. they are being with a of new programs to fund conservation for listed and species. conservation planning for the California has of in a of may not provide adequate protections to species, the of US Fish and Wildlife Service and and species are currently listed as threatened or Although the of species in need of ESA protections to the of species listed per has since of of In the is the subject of the first habitat conservation and development and conservation in this conservation and US Fish and Wildlife and development threatened the last habitat of the now exist in several the Wildlife the first such for an and and the US Fish and Wildlife habitat for the was in and has environmental for on grazing in the of and New a by the of the original was set by court in is now under of the of habitat conservation are to protect species such as the and the US Fish and Wildlife