With a band of white terrorists occupying a federal USFWS building, it’s as good a time as ever to talk about what this tyrannical, overbearing, useless government appendage actually does. Besides managing hunting in our country to ensure continued abundance (something the Bundys would care about if they gave a shit about the land), the Fish and Wildlife Service enforces the Endangered Species Act.
On December 28th, 1973, President Nixon signed the Endangered Species Act (ESA) into law. The act serves as the enabling legislation for the Convention on International Trade in Endangered Species (CITES), the international treaty governing the global listing of endangered species and their trafficking. The act was preceded by 1966 and 1969 laws that gave the Department of the Interior authority and funds to purchase land for endangered species, but which were perceived as inadequate. The ESA was much more thorough and powerful, authorizing a broad range of actions. The intent of the law, as determined by the Supreme Court, was "to halt and reverse the trend toward species extinction, whatever the cost." (Emphasis mine.)
That phrasing is crucial, because the ESA has been one of the most significant, powerful, and controversial pieces of legislation ever passed. It’s one of those quintessentially bold American moves, where in a moment of crisis the nation passed a monumental piece of legislation, completely untried before, that would have profound reverberations for decades. It brings to my mind the Sherman Anti-Trust act and the Voting Rights Act—novel solutions to insidious problems, where government was given broad authority to pursue a specific end. These are not band-aid bills. These were comprehensive fixes to wicked problems. We haven’t had a bill like this in a long time.
A few things make the ESA significant and unique. First, despite significant political meddling by Congress in the years since, the law invested most of its authority in scientists. By entrusting enforcement to the US Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (NOAA), government bureaucracies staffed largely by professional scientists that persist between administrations, the workings of the act are largely free from Congress. These agencies do crucial work for the nation, from co-ordinating waterfowl hunting to aiding navigation, which protects the ESA from budget attacks. You can imagine what would have happened by now if the ESA was administered by a separate board or body, whose funding could be targeted or whose appointments could be blocked.
Second, the ESA allows listing of pretty much anything—be it a species, a subspecies, a unique race or even a distinct genetic lineage. This is another win for scientists, because the scientific consensus is that "species" don't really exist—the delineations between them are arbitrary. Subspecies and races may be incipient species, on their merry evolutionary way to becoming fully distinct, and where we choose to draw the line is up to us. One man’s species is another man’s subspecies. Best to protect anything that seems distinct and imperiled rather than squabbling over what does and doesn’t count as a species. This separates the act from almost any other piece of legislation because it protects not people, places, or things, but nebulous, ever-changing conceptual entities. We’ve enshrined the protection of an idea into our laws. We decided that it is not individual animals that need saving, but the collective whole to which they belong. It’s as if we had made it illegal to allow a language to die, or a cultural tradition to be abandoned.
Perhaps most importantly, the ESA declares that when a species is being considered for listing, economic factors cannot be considered. The law states that listing must be “based solely on the best scientific and commercial data available.” Think about the implications of that wording. The ESA has the potential to send huge development projects screeching to a halt because of the threat to something as seemingly insignificant as a small fish. No doubt this is why as early as 1978 Congress had modified the act. Economic considerations could now be taken into account when designating Critical Habitat for the species. Critical Habitat delineates the areas that must be protected. So, while the addition of a species to the list must be made without regard to economics, the designation of lands for protection does involve economic considerations.
What has the act accomplished? Since its inception, 28 species have been de-listed because they have recovered. This includes many charismatic species such as bald eagles, grizzly bears, gray wolves, sea otters, alligators, and whooping cranes. However, with over 2000 species on the list, this represents a success rate of roughly one percent. Then again, only 10 species have gone extinct, most of which were probably already extinct, and by some estimates the act has prevented the extinction of over 200 species. Most species on the list have seen their populations decline since listing. However, given that they were already on a downward trajectory that prompted their listing, and given that we have no control (an alternate America where the ESA never existed), it’s difficult to say whether the act has been effective. I’m tempted to believe that we would be in a much worse position had it not been enacted. Given the zeal with which people shoot wolves and black bears when able, I’m sure these species benefit from protection against take. One collateral benefit of the act has certainly been the preservation from development of some landscapes where endangered species live, such as the preservation of old-growth redwood forests as habitat for spotted owls.
Speaking of preservation from development, one of the frequently-heard accusations against the act is that is hinders economic development and growth. However, a recent study has found that in the past seven years, not a single project has been halted due to ESA concerns. The argument is now a straw man. One of the likely reasons that projects haven’t been halted is that there are now numerous work-arounds for developers. One of them is mitigation banking, whereby an area of habitat is allowed to be destroyed if an equal area of equivalent habitat is created elsewhere. This is frequently used as a way to develop wetlands, which are de facto protected habitats in the United States. Needless to say, new habitat is not equivalent to old habitat, in biodiversity or ecosystem services. Planting seedlings is not a substitute for cutting down old-growth forest. Additionally, new habitat might be many miles away from old habitat, and it’s laughable to believe any endangered species will just magically migrate away to the new habitat before development occurs. Plus, when you create new habitat, such as a new wetland, you aren’t creating it out of thin air—you’re converting whatever habitat was previously there into something else. It’s a chain reaction of habitat degradation.
An entire industry has developed around mitigation banking to provide the service to businesses who need to develop land. As a volunteer for the Nature Conservancy, I was involved in planting pines and clearing invasive shrubs (we also use prescribed fire) to turn former timber land into longleaf pine savannas. Flatland longleaf is poorly drained, resulting in wetland conditions. Companies that were destroying pristine delta freshwater wetlands south of New Orleans could pay us to create wet savannas north of the city, and it would be considered comparable habitat. In reality, the two are completely different ecosystems. And in any structure that allows some habitat to be destroyed in exchange for the protection of other habitat, the result is still a downward trend. All the land started as wild; protecting land doesn’t turn cities back into forests. It’s not the opposite of development. The metaphor of a ratchet is appropriate—the ratchet is always tightening by steps, moving in only one direction.
Its important to be realistic about what the act can and cannot accomplish. In an excellent article for further reading, a professor at Urbana-Champaign puts it thusly:
The ESA can help species threatened by direct human action such as hunting. But most species are in decline because of diffuse threats such as invasive species, large-scale land conversion and climate change, over which the act has little power. Efforts to use the ESA to protect the polar bear (Ursus maritimus) from melting sea ice cannot, for example, force an international agreement on greenhouse-gas emissions.
Proposed solutions include picking and choosing species for protection based partly on societal value, to keep the public engaged and focus limited resources on species perceived to be important; a focus on conserving whole ecosystems rather than individual species; incorporation of the IUCN’s Red List as the determinant of extinction risk, rather than the ESA’s own risk guidelines; and a greater focus on economic impacts, which can also identify potential winners in preservation (think eco-tourism).
Unfortunately, these changes will have to wait for a more receptive Congress. In the meantime, the main power of the ESA still lies in your hands and mine—the power of citizen involvement. Citizens propose new species for listing, and any citizen can bring a lawsuit alleging violation of the act. The biggest achievements in conservation have come when concerned citizens took enforcement of the act into their own hands by bringing issues to court. Endangered species cannot speak for themselves.