Endangered Species Act (ESA)

Date: Signed into law December 28, 1973

The Endangered Species Act has been successful in saving and increasing the populations of some endangered species and ecosystems. There is disagreement, however, as to how far the US government should go in its protection of species and their habitats.

Background

The first law to authorize federal government action to preserve wildlife was the Lacey Act of 1900. Using the federal power to regulate interstate commerce, the Lacey Act authorized federal enforcement of state wildlife regulatory laws and allowed the US Secretary of Agriculture to preserve and restore bird species. In 1920, the US Supreme Court used federal treaty-making authority to override state law and uphold the constitutionality of the Migratory Bird Treaty Act of 1918. The federal government further asserted its authority in the Migratory Bird Conservation Act of 1929 and the Fish and Wildlife Coordination Act of 1934.

In 1939, the management of wildlife was brought under the control of the Department of the Interior as a natural resource. In 1964, the department established the Committee on Rare and Endangered Wildlife Species, which published the "Red Book," the first government listing of fish and wildlife threatened by extinction. Public interest in protecting species from extinction increased during the 1960s, and the first comprehensive federal law in this regard was passed in 1966; the Endangered Species Preservation Act created broad policy without providing enforcement power. Federal agencies were to preserve, to the extent "practicable and consistent" with the primary purposes of the agencies, the habitats of native vertebrate species that the Department of the Interior declared in danger of extinction. The National Wildlife Refuge System was created to allow the department to buy and protect the habitats of endangered species.

In 1969, the Endangered Species Conservation Act extended the Lacey Act to cover interstate commerce in illegally taken reptiles, amphibians, and selected invertebrates. Commercial interests strongly influenced the final act. By 1970 Congress was reconsidering its position on endangered species. In a February 8, 1972, environmental message, President Richard Nixon stated that existing legislation did not provide the tools needed to save disappearing species and that legislation should be passed that would allow a species to be restored before it reached the critical stage. In 1972, the Marine Mammal Protection Act was passed to protect "depleted" marine populations as well as those threatened with extinction. The Endangered Species Act (ESA) itself was signed into law in 1973.

Provisions

The ESA expanded federal power into areas formerly under state authority. It lowered the endangerment threshold, thereby covering species in a large part of their range. Federal agencies could use their authority to protect listed species, and private citizens would be allowed to bring suit in court.

With environmental concerns high, there was little controversy over the law at the time the ESA was finalized. As the Supreme Court stated in Tennessee Valley Authority v. Hill (1978), when it upheld stopping construction of the Tellico Dam in order to protect a tiny fish called the snail darter, "the plain language of the Act, buttressed by its legislative history, clearly shows that Congress viewed the value of endangered species as 'incalculable.'" Eventually, however, critics began to suggest that in the environmental furor of the early 1970s, Congress passed the ESA without fully considering the economic effects of the law.

Under the ESA, species in need of protection may be listed by the Fish and Wildlife Service and the National Marine Fisheries Service as either "threatened" or "endangered." Section 7 requires that the activities of federal agencies—including those involved with federal land and resource management plans (LRMPs)—not jeopardize listed species or their habitats. Section 9 proved particularly contentious. One argument concerned whether modification of habitat on private lands consists of a "taking" of an endangered or threatened species that is punishable under law. This was the issue in Sweet Home Chapter for a Greater Oregon v. Babbitt (1992), in which the Court upheld the Fish and Wildlife Service's reading of the ESA.

Controversy and Proposed Changes

The 1978 amendments to the ESA required that designation of the "critical" habitat of a species accompany the listing of the species, and they permitted consideration of the economic impact of the listing. These changes almost stopped the listing of additional species. Amendments to Section 4 required the secretary of the interior to prepare "recovery plans" for all listed species in order to bring the population of a species to a healthy level.

Amendments in 1982 loosened the connection between the listing of a species and its critical habitat designation by requiring the concurrent listing of the habitat only to the "maximum extent prudent and determinable." A new approach was instituted to ease enforcement of the act. Called the habitat conservation plan (HCP), it allowed "incidental takes" of an endangered species as its habitat is being developed as long as there are plans to minimize the loss of the species and to offset potential future losses. An executive committee consisting of local governments, landowners, developers, and environmentalists directs an HCP, with the Fish and Wildlife Service supervising and approving the plan. Scientific guidelines are laid down by a biological advisory team, which creates population viability analyses (PVAs) to estimate the survival chances for a species.

The 1988 amendments added to the listing procedure by requiring that the Department of the Interior monitor the listing status of a candidate species. They stated that an invertebrate is not to be passed over for a mammal nor an obscure species for a well-known one, and they protected plants on private land. Public input into the recovery planning process was formalized.

The 1990s saw the development of a contentious debate on whether the ESA had been a success or failure. The crux of the disagreements was how to achieve a balance between human needs (especially economic concerns) and those of threatened or endangered species of plants and animals. Some scientists pointed out that the ESA may have saved a few species, but its policies may have resulted in the extinction of many more. Furthermore, attempts to preserve every species run counter to evolutionary laws. Libertarians insisted that administering the act often led to the violation of landowners' rights, even prompting some to destroy habitats and eliminate species to prevent government interference.

On the other hand, environmentalists have argued that the ESA has either stabilized or improved the numbers of listed endangered species, with only a small number of those protected under the law becoming extinct. Furthermore, administrative faults have been seen as the result of inadequate funding from Congress rather than any issues with the underlying principle of the ESA.

Congress began a heated debate on the reauthorization of the Endangered Species Act in 1992. In 1995, some members of Congress pushed for a repeal or a major overhaul of the ESA, and in April of that year, a congressional moratorium halted the listing of additional species. There were proposals to give the Department of the Interior the power to permit a listed species to become extinct and to remove mandatory protection for endangered species. In 1996, an Endangered Natural Heritage Act was proposed in order to cover loopholes in the ESA and to ensure that listed species recover. Its approach was to have federal agencies "prevent the need of listing species in the future" by conserving depleting species. Another suggestion was to protect ecosystems, or "biologically rich landscapes," rather than concentrating on individual species. A rider to a fiscal-year 1997 bill exempted certain flood control activities from review under the act. In the 1997 Bennett v. Spear decision, the Supreme Court upheld the right of citizens to sue the government for overenforcement of the ESA if enforcement results in harm to their business.

Two bills for possible amendments to the ESA were introduced in 1997, one in the House of Representatives, the other in the Senate. Both bills centered on the increasingly critical problem of habitat destruction. It had become clear to both scientists and politicians that all species are part of certain ecosystems, and when species decline, something is wrong with the ecosystem. Thus, the solution to declining numbers lies in fostering viable ecosystems. The Supreme Court had already upheld a Fish and Wildlife Service regulation that defined harm to an endangered species to include habitat destruction. Both bills also included incentives to encourage landowners to preserve species and habitats.

Twenty-First Century Developments

In 2001 the ESA was extended to include not only species in danger of extinction but also distinct populations in particular regions. For example, while certain species of salmon are not in danger of extinction in the Pacific Northwest, some salmon populations are in danger of vanishing from particular areas. These latter populations have been listed as threatened or endangered.

At the start of the twenty-first century, many members of the administration of President George W. Bush sided with those who believed that the ESA was inefficient and wasteful of taxpayer dollars and that the law was too onerous, especially for landowners. Certain administrators stopped adding endangered species and critical habitats to the list unless forced to do so by court order. Environmentalists interpreted these and other actions of the Bush administration as bureaucratic obstacles that resulted in reduced numbers of protected species and habitats. In 2003, members of the administration proposed removing the protection of foreign species, permitting hunters to kill, circuses to capture, and the pet industry to import animals that are endangered in other countries. As expected, environmentalists reacted negatively to this proposal.

In 2004, an amendment to a defense act exempted military lands from critical habitat designation if the secretary of defense deemed that protecting these habitats would weaken national security. In 2006, the ESA was further threatened by attempts to remove the protection of critical habitats from the law. Republicans, in particular, attacked the $1.6 billion ESA budget, claiming the agency cost much more than it was worth. By the summer of 2008, administrators had succeeded in delisting more than forty species previously designated as endangered, and more than twenty were down-listed from endangered to threatened. Furthermore, President Bush decided that federal officials were not required to consult with scientists when questions arose about whether logging or mining in a particular area might harm an endangered species. In fact, just before leaving office, Bush put into effect rules that gave federal agencies wide leverage in removing species from the endangered list without any checks and balances by the Fish and Wildlife Service or the National Oceanic and Atmospheric Administration (NOAA).

Soon after Barack Obama became US president in January 2009, he restored rules requiring agencies to consult with relevant government scientists to make sure that endangered species would continue to be protected. Congress then passed a bill to enable the Obama administration to overturn the "eleventh-hour" Bush regulations that had weakened the ESA. Obama insisted that his policy would be to find ways to strengthen the act, not weaken it. Yet, while the Obama administration was generally viewed as much more supportive of the ESA and other environmental legislation than its predecessor, some environmentalists felt it did not go far enough to support the law. For example, the administration drew controversy for making the process for citizens to petition for a species to be listed as endangered more difficult.

In the 2010s, many scientists and conservation groups complained of politics exerting undue influence on decisions of which species to cover and other matters of ESA administration. To mitigate the influence of politics, the Fish and Wildlife Services adopted new guidelines in 2016; among the changes was a commitment to consulting at least three independent scientific experts, who would be required to submit a full list of financial conflicts of interest when deciding whether to protect a species. As of that year, approximately 2,270 species were protected under the ESA.

The 2016 election of Republican President Donald Trump was widely seen as a threat to the ESA, as the new administration sought to roll back environmental regulations in favor of economic growth. In August 2019, the Trump administration officially announced changes to the law, which included the removal of full protections for species listed as "threatened" rather than "endangered" and allowing the consideration of economic factors before listing species under the act. The revised rules also included language giving the government greater flexibility in assessing species' outlooks and the impact of factors such as climate change. The changes were touted by the administration as a much-needed modernization of the ESA, but environmentalists roundly criticized them as harmful to at-risk species. Several states quickly announced they would sue the Trump administration over the proposed changes.

The administration of President Joe Biden actively repealed the Trump-era regulations of the ESA, including rules limiting habitat protections for species of animals deemed threatened or endangered. The Biden administration also lifted restrictions on areas that could be considered critical habitat. The rules enacted during the Trump presidency were completely vacated by a federal court in July 2022. The Biden administration set a goal to completely rewrite the Trump-era ESA by 2024.

Bibliography

Baur, Donald C., and William Robert Irvin, eds. Endangered Species Act: Law, Policy, and Perspectives. Chicago: Section of Environment, Energy, and Resources, American Bar Association, 2002.

“Biden Administration Repeals Second Trump Rule Limiting Habitat Protections for Imperiled Species." Center for Biological Diversity, 20 July 2022, biologicaldiversity.org/w/news/press-releases/biden-administration-repeals-second-trump-rule-limiting-habitat-protections-for-imperiled-species-2022-07-20/. Accessed 7 Feb. 2023.

Burgess, Bonnie B. Fate of the Wild: The Endangered Species Act and the Future of Biodiversity. Athens: University of Georgia Press, 2001.

Czech, Brian, and Paul R. Krausman. The Endangered Species Act: History, Conservation Biology, and Public Policy. Baltimore: Johns Hopkins University Press, 2001.

Doyle, Michael. “Biden Admin Picks Up Pace on Endangered Species Act Rewrite. E&E News, 27 Oct. 2022, www.eenews.net/articles/biden-admin-picks-up-pace-on-endangered-species-act-rewrite/. Accessed 7 Feb. 2023.

"Endangered Species Act." US Fish & Wildlife Service, www.fws.gov/international/laws-treaties-agreements/us-conservation-laws/endangered-species-act.html. Accessed 9 Sept. 2019.

Foreman, Paul, ed. Endangered Species: Issues and Analyses. New York: Nova Science, 2002.

Friedman, Lisa. "US Significantly Weakens Endangered Species Act." The New York Times, 12 Aug. 2019,www.nytimes.com/2019/08/12/climate/endangered-species-act-changes.html. Accessed 9 Sept. 2019.

Goble, Dale D., J. Michael Scott, and Frank W. Davis, eds. The Endangered Species Act at Thirty: Renewing the Conservation Promise. Washington, D.C.: Island Press, 2006.

Goode, Erica. "A Shifting Approach to Saving Endangered Species." New York Times, 5 Oct. 2016, www.nytimes.com/2015/10/06/science/a-shifting-approach-to-saving-endangered-species.html. Accessed 7 Nov. 2016.

Kettman, Matt. "Why the Endangered Species Act Is Broken, and How to Fix It." Smithsonian Magazine, 15 May 2013, www.smithsonianmag.com/innovation/why-the-endangered-species-act-is-broken-and-how-to-fix-it-63482436.

Liebesman, Lawrence R., and Rafe Petersen. Endangered Species Deskbook. Washington, D.C.: Environmental Law Institute, 2003.

Mann, Charles C. Noah's Choice: The Future of Endangered Species. New York: Knopf, 1995.

Petersen, Shannon. Acting for Endangered Species: The Statutory Ark. Lawrence: University Press of Kansas, 2002.

Rohlf, Daniel J. The Endangered Species Act: A Guide to Its Protections and Implementation. Stanford, Calif.: Stanford Environmental Law Society, 1989.

Scott, J. Michael, Dale D. Goble, and Frank W. Davis, eds. Conserving Biodiversity in Human-Dominated Landscapes. Vol. 2 in The Endangered Species Act at Thirty. Washington, D.C.: Island Press, 2006.

Sullins, Tony A. ESA: Endangered Species Act. Chicago: American Bar Association, 2001.

Tobias, Jimmy. "The Endangered Species Act Gets Some New Scientific Armor." Pacific Standard, 19 Sept. 2016, psmag.com/the-endangered-species-act-gets-some-new-scientific-armor-faa8048bfc46. Accessed 7 Nov. 2016.

Vega, Evelyn T., ed. Endangered Species Act Update and Impact. New York: Nova Science, 2008.