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The Skinny on the Endangered Species Act: Why This Law Matters

“Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans.”

— President Richard Nixon upon signing the Endangered Species Act

The Endangered Species Act’s Critical Importance

From the Kemp’s ridley sea turtle to the black rhinoceros, the number of species threatened with extinction has dramatically increased. We are experiencing the worst spate of species die-offs since the loss of the dinosaurs 65 million years ago—except instead of a giant asteroid, this time the cause of mass species extinctions is us. Although species have always gone extinct, scientists now estimate that they are disappearing at a rate a thousand times greater than occurred for millions of years prior to the expansion of human civilization.1 Our growing human footprint, climate change and the spread of non-native species are all contributing to the loss of wildlife.

We should be concerned about species extinctions because our own health and survival are intricately linked to the natural biodiversity of the planet. Simply put, the more biodiversity there is, the more benefits humans derive. Species are the building blocks of the ecosystems that purify our air and water, moderate the climate and provide a myriad of other services that have nourished our society for eons. As such, there is a practical, moral, and even selfish reason for Americans to preserve species biodiversity. Fortunately, we have one of the strongest laws of any nation for doing just that: the Endangered Species Act.

Recognizing the inherent value in preserving species, the Endangered Species Act was borne out of cries for stronger wildlife protections amongst lawmakers and the public at large.2 Originally penned as the Endangered Species Preservation Act of 1966, this precursor to the law we have today gave native wildlife only limited protections. It, for example, did not provide any protections for species’ habitat. Inspired by the decline of the bald eagle and an oil spill off his coastal home in Santa Barbara, CA, President Richard Nixon called on Congress to pass comprehensive legislation that provided stronger protections for species. Passed on December 28, 1973 with nearly unanimous bipartisan support, the Endangered Species Act that we know today included protections for species’ habitat for the first time, and allowed for protections of plants in addition to animals. The result was a law that prioritizes saving imperiled wildlife threatened with extinction above economic interests and development.3 Congress made clear that endangered species should be afforded the “highest of priorities” at “whatever the cost,” because the cost of losing a species to extinction is incalculable.4

The Endangered Species Act has been incredibly successful at saving and recovering species particularly given that the population of the U.S. has grown from 212 million people in 1973 to 319 million people today with concurrent loss of wildlife habitat. The Act has been 99% effective at preventing the extinction of species under its protection and has put hundreds of species on the road to recovery.

One example of the Act’s success is the black-footed ferret. Once thought extinct by scientists, a single remaining population was discovered in Wyoming in 1981.5 The species was then listed under the Act, bred in captivity, and reintroduced into the wild. Today there are over 1,400 black-footed ferrets at eighteen different sites.6 Humpback whales are yet another example. Once critically endangered due to commercial whaling, they were listed as endangered in 1970 with only 1,200 remaining.7 As of 2013, their population reached over 20,000.8

After more than 40 years, the Endangered Species Act is still the best and possibly the last chance Americans have of securing a future for diverse native wildlife and the natural environments that they depend on. The Act does not just rescue species from the brink of extinction, but rather holds the very fabric of our relationship with nature together. It is imperative that future generations, and in particular young Americans, understand the importance of this law and continue to care about endangered species.

How the Endangered Species Act Works

The Endangered Species Act is implemented by two federal agencies. The U.S. Fish and Wildlife Service (FWS) within the Department of Interior is responsible for protecting terrestrial and freshwater plants and animals, and the National Marine Fisheries Service (NMFS) within the Department of Commerce is responsible for protecting marine species. The two agencies currently oversee protection of 2,244 threatened or endangered species, including 1,618 species found within the U.S.9

The Act’s central purpose is to recover species to the point where protections of the Act are no longer necessary.10 For species to receive protection and begin to recover, they must first be listed as threatened or endangered. The Act defines an endangered species as one that is at risk of extinction and a threatened species as one that is at risk of becoming endangered in the foreseeable future. A key difference in the Endangered Species Act compared to precursor laws is that species need not be endangered everywhere to receive protection, but rather in any “significant portion” of their range. Species are considered endangered when they are at risk from any of five factors:

  1. the present or threatened destruction, modification or curtailment of habitat or range,
  2. overutilization for commercial, recreational, scientific, or educational purposes,
  3. disease or predation,
  4. inadequacy of regulatory mechanisms, or
  5. other natural or manmade factors affecting its continued existence.11

A cornerstone of the Act is that it requires decisions about whether to list species as threatened or endangered to be based solely on the “best commercial and scientific data available.”12 Other factors, such as economic or political ones, may not be considered.

The Endangered Species Act provides strong protections for listed threatened and endangered species, including a prohibition on all persons from harming, harassing, or killing a species or its habitat.13 In the Pacific Northwest for instance, courts have barred private companies from logging to protect the Northern Spotted Owl.14 The Act does provide an exception to this prohibition. If a landowner develops a “habitat conservation plan,” they can be granted a permit to “take” endangered species provided the plan minimizes and mitigates any take that is expected to occur. In recent years, landowners across the country have developed such plans, and although not always perfect, this has resulted in tens of thousands of acres being set aside for species.

Concurrent with listing of species, the Act requires identification and protection of critical habitat, which is defined as areas essential to the conservation of species. Critical habitat provides the only means to protect places where species have been eliminated but that are important to their recovery. This is important because many if not most endangered species have been driven from all but tiny fractions of their historic ranges. It also alerts land owners and managers to the fact that they have important habitat for endangered species. Accordingly, at least one study has found that species with critical habitat are more than twice as likely to improve as those without critical habitat.

The Act also prohibits federal agencies from jeopardizing the continued existence of species or modifying their critical habitat in actions that they fund, permit, or carry out.15 In addition to covering federal projects like large dams, these prohibitions often extend to developments on private lands because developments that modify waters of the United States must obtain a permit from the Army Corps of Engineers. Federal agencies ensure they are not jeopardizing species or destroying their habitat by consulting with FWS and NMFS. The consultation process results in a tremendous amount of conservation for species resulting in both federal agencies and large developers setting aside land or otherwise putting resources into mitigating the impacts of their actions on endangered species.

Finally, the Endangered Species Act requires development of a recovery plan and also allows individual states to receive federal grants to to carry out recovery actions. Species recovery plans are typically developed by expert scientists from Universities and state and federal agencies, and provide a roadmap for recovery, including describing the species’ habitat needs, identifying actions needed to recover species, and setting recovery goals.

Citizen Involvement is Key

The Act’s citizen suit provision also allows citizens, including watchdog groups, to file a lawsuit against a federal agency in Federal court for its failure to fulfill one of the Act’s mandates.16 For example, one may litigate against the government when it fails to abide by statutory deadlines or ignores the best available science in deciding not to list a species. Because a majority of lawsuits have sought to place a species on the endangered species list and designate critical habitat for those already on the list, citizen enforcement has been one of the major factors aiding in the recovery of species.17

Keeping the Endangered Species Act Strong

Thanks to the comprehensive protections the Endangered Species Act provides to imperiled species and the opportunities it provides for concerned citizens to get involved in its enforcement and implementation, the Act has been nothing short of a tremendous success. It is no wonder why a recent poll indicated that 90 percent of American voters overwhelmingly support the ESA.18 Unfortunately, political interference and industry interests have increased, seeking to weaken the Act in the name of their own economic profits.

It is now imperative for young Americans, including college students, to continue the enthusiasm and support for this critical law. College-aged conservationists can employ the Act in various ways. Those who are scientifically-inclined may undergo a literature review on a species they desire to see protected and submit their own listing petition. Additionally, one may simply read the federal register for proposed listings, delistings, or draft recovery plans to submit public comments in support of the conservation of a species, or submit an “op-ed” to a local or national newspaper highlighting a particular species. Alternatively, those who thrive on human interaction will be pleased to discover that calling one’s Congressional representative or meeting with the office in their capacity as a constituent to express their support for the Act goes a surprisingly long way.

Ultimately, wildlife is inextricably tied to our nation’s heritage and human spirit. By helping to preserve the Endangered Species Act, we also preserve ourselves.

Jamie Pang is a staff member of the Center for Biological Diversity.

  1. Christine Dell’Amore, Species Extinction 1000 Times Faster than Humans?, National Geographic (May 30, 2014).
  2. U.S. Fish & Wildlife, A History of the Endangered Species Act of 1973.
  3. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978).
  4. Id.
  5. U.S. Fish & Wildlife, Black-Footed Ferret 5 Year Review (Aug. 13, 2014).
  6. Id.
  7. Final ESA Listing Rule, 75 Fed. Reg. 8305.
  8. NOAA Fisheries, 2013 Stock Assessment Report Humpback Whale.
  9. Center for Biological Diversity, Endangered Species Database (2015).
  10. Meaning that once it is deemed fully recovered by the best available science, the species will be delisted by the agency in charge of its recovery.
  11. Section 4(a); 16 U.S.C. § 1533(a).
  12. Section 4(b); U.S.C. § 1533(b).
  13. ESA Section 9; 16 U.S.C. § 1538.
  14. See Seattle Audubon Society v. Sutherland, No. 06-1608, WL 2220256 (W.D. Wash. 2007).
  15. ESA Section 7; 16 U.S.C. § 1536.
  16. ESA Section 110; 16 U.S.C. § 1540.
  17. P. Parenteau, An empirical assessment of the impact of critical habitat litigation on the administration of the Endangered Species Act. Vermont Law School Faculty Papers. Paper 1 (2005).
  18. Tulchin Research, Poll Finds Overwhelming, Broad-Based Support for the Endangered Species Act Among Voters Nationwide (July 6, 2015).

Source: www.thewildernist.org

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