Review: Balancing on the Brink of Extinction: The Endangered Species Act and Lessons for the Future, by Kathryn A. Kohm

The Regulation Charade

The Endangered Species Act (ESA), which is 30 years old this year, is no stranger to controversy. As one of the most important pieces of environmental legislation ever introduced in the US, it has been a battleground of conflicting interests almost since its inception. This year will be no different. Dr Sue Silver, Editor-in-Chief The aim of the ESA is to preserve the biological heritage of the US by protecting species in danger of extinction. To achieve this, it is also necessary to conserve the habitat in which the species is found, and to devise recovery plans to help restore viable population levels. When the act passed into law, President Nixon said, “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed”. Unfortunately, few people seem to have heard the muttered response, “Unless it happens to live on my land, or get in the way of my development plans”. Even supporters of the ESA recognize that it is by no means perfect. Getting a species listed as “protected” is a long, slow process, and because species are not included until they are in serious trouble, protected status often does not prevent them from disappearing. There are currently 986 species listed as endangered, with 276 more classed as threatened. Since 1973, only about 30 species have been removed from the list, and in seven cases this was because they became extinct (http://endangered.fws.gov). Furthermore, as Frontiers legal columnist Douglass Rohrman explains (p 107), the act has always been hampered by a lack of resources. However, the ESA's greatest weakness, according to some, is that it offers no incentive to private landowners to protect endangered species on their land, while at the same time preventing them from developing that land as they wish. There have been a number of attempts to “improve” the ESA, each calling for the same things – more consultations, more layers of bureaucracy, and more data collection before decisions are made. These demands for more data will simply result in species declining, often to the point of no return, while we study them. Now the ESA is about to come under renewed attack. Richard Pombo (R-CA), author of two previous bills to overhaul the ESA, has become Chair of the House Resources Committee. Pombo is a staunch supporter of private property rights and consequently is not a fan of the ESA, so these two subjects are likely to be at the top of his agenda. Pombo contends that, as a result of current ESA regulations, owners often destroy endangered species (or their habitat) for fear of losing control of their property. He wants to introduce a compensation package for landowners, to encourage them to host protected species, but also to lift restrictions on land use and destruction of habitat. However, since there is currently no evidence that the necessary funds exist to provide this compensation, landowners will gain while endangered species lose out. The scientific community, and even the lay public, recognize that the current rate of species extinctions, and the consequent loss of biodiversity, will have severe repercussions – if not for the current generation, then definitely for future ones. Whether one sees species extinctions purely in terms of lost ecosystem services, or from the moral perspective that we have a duty of care towards the living heritage we share the planet with, the end result is the same. Each attempt to improve the act forces scientists to argue against plans to further complicate and slow the listing process. If we truly wish to reduce extinction rates, changes to the legislation should aim to simplify procedures, speed up the listing process, and provide funding for the research necessary to begin turning the situation around. Perhaps in this particular instance Richard Pombo has a point. If funds could be made available to offer private landowners sufficient incentives to preserve endangered species on their property, then their elected representatives might find it easier to commit the necessary resources and design a more effective, proactive ESA.

In the forty-four years since President Nixon signed the Endangered Species Act (ESA), states have become increasingly frustrated by the lack of meaningful opportunities for involvement in the Act’s implementation. This frustration has led to a national discussion on ESA reform, a Republican priority supported by the bipartisan Western Governors’ Association and others. The frustration stems from being relegated to a post-listing back seat, despite state primacy in the management of imperiled species prior to a listing as threatened or endangered under the ESA. This frustration is well placed, as this is not the role Congress intended states to play when it passed the ESA in 1973. Instead, under the long-forgotten section 6(g)(2) of the ESA, Congress provided states with the authority to oversee the implementation of the ESA post-listing. This Article advocates for the utilization of this never-implemented authority to achieve non-legislative ESA reform. In reaching that conclusion, this Article provides a uniquely comprehensive review of the legislative and regulatory history of the ESA, providing a clear demonstration of Congress’s intent to create a cooperative federalism regime under the ESA and the regulatory agencies’ refusal to carry that intent forward.

This article presents a theoretical framework and empirical evidence on the relationship between regulatory uncertainty induced by the possible invasion of an endangered species—the red‐cockaded woodpecker (RCW)—and timber harvesting. The results indicate that landowners whose forests are close to a known or perceived RCW habitat have a high propensity to cut timber and use a clear‐cut method. These preemptive actions are apparently aimed at destroying potential RCW habitat so that the existing values of their property could be protected from the Endangered Species Act (ESA)–related land use limitations.

In recent years the federal agencies that administer the Endangered Species Act have increasingly relied on genetic data to decide which species and populations merit protection. Because the analysis of genetic data is highly technical and unfamiliar to the majority of those concerned with the Act, agency decisions are in danger of becoming less transparent, insulated by the language of genetics and the seeming surety of its associated statistics. In this paper, I attempt to provide a resource for lawyers and other non-biologists faced with understanding the genetics that underlie many modern claims under the Endangered Species Act. I do so by describing the types of data federal agencies routinely use and the analyses those data drive. I then scrutinize the agencies’ treatment of the primary data in two particular agency decisions under the Act, and conclude with suggestions to improve the accessibility of this kind of data, making public input more effective. As technical data inform an ever larger percentage of decisions about species protection, this paper provides basic information to improve citizens’ ability to understand and engage in the administration of the Endangered Species Act. The continued legitimacy of the agencies and the Act itself depend in part on such citizen engagement, and on the continued transparency of agency decisions.

December 2023 will mark the 50th anniversary of the passage of the 1973 Endangered Species Act of the United States. This landmark Act by the US Congress was made possible through strong bipartisan political cooperation on environment protection, capping off a string of progressive legislative victories that would set the tone for US environmental policy at local, state, and federal government levels for decades. Beyond its domestic significance, the 1973 Endangered Species Act had a clear and recognizable impact on global environmentalism by influencing and inspiring endangered species legislation in other nations as well as the 1992 Convention on Biological Diversity. At the time of its passage, the US Endangered Species Act (ESA) was far and away the most comprehensive piece of legislation ever enacted to halt and reverse rising rates of species extinction and biodiversity loss. Other nations emulated the ESA in past and present endangered species laws and regulations, even as late as 2019, leading to the eventual emergence of a set of global standard practices for species and habitat protections that endure to this day, practices with clear American roots. This study explores the degree to which the past and present endangered species laws of other English-speaking jurisdictions borrowed from or mimicked the US Endangered Species Act in purpose, style, form, and function. Further analysis is undertaken to reveal the extent to which Japan’s own endangered species protection statute is likely influenced by the US ESA. The ESA’s influence on global environmental norms and wildlife protection practices is first explored through the lens of international relations theory, in particular the ‘constructivist’ school of thought that helps explain recognized patterns in global environmental cooperation. The study demonstrates how the 1973 Endangered Species Act essentially became a template for other national and provincial governments to model and even mimic when these governments were designing and enacting their own endangered species management protection programs. Historically, the ESA’s passage and its emulation by other polities are indicative of the degree to which the United States has impacted and continues to greatly impact and influence global wildlife law and policy.

In an attempt reverse the trend toward species extinction, Congress enacted the Endangered Species Act (ESA) in 1973.3 The ESA declares it illegal harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any species.' The ESA's broad prohibition against almost any conduct-whether intentional or accidental-that interferes with the activities of an endangered species reflects Congress's considerable concern with species preservation. In its sole pronouncement on the social value of the ESA, the Supreme Court generously appraised Congress's commitment the preservation of endangered species. In Tennessee Valley Authority v Hill, the Court found that the ESA's structure and legislative history demonstrated conclusively that Congress intended to halt and reverse the trend toward species extinction, whatever the cost. Congress considered the goal of

The U.S. Endangered Species Act is often criticized as pitting people against species by conserving habitat at the cost of jobs. Critics of current conservation policies argue that the protection of species is stripping landowners of their property rights and putting people in industries tied to resource extraction out of jobs. While changes in employment are important measures of the public costs of endangered species protection, relatively little is known about the labor market impacts of listing a species under the Endangered Species Act. We examine changes in employment associated with the lesser prairie chicken, an imperiled bird that was listed as threatened in May 2014. Using monthly county-level employment data and variation in potential prairie chicken habitat, we apply a difference-in-differences strategy to measure the employment impacts of the listing decision. We find evidence that employment declined after the listing by about 1% in counties with habitat relative to non-habitat areas. We also find that the impact is proportional to habitat, so counties with the most prairie-chicken habitat experienced the largest impacts on employment.

Evaluating agency use of “best available science” under the United States Endangered Species Act

In the United States, the Endangered Species Act (ESA) represents the federal government’s paramount effort to protect endangered species. In no uncertain terms, the ESA prohibits harming endangered species by both private and governmental actors. Moreover, the Supreme Court determined that the ESA prevents courts from exercising their usual discretion when such actors take actions that will foreseeably result in harm to endangered species. Put simply, the ESA prevents courts from allowing harm to come to endangered species even if that harm is necessary for an immense benefit to human beings. This broad protection has been effective in preventing ecological loss in the U.S. But because of the breadth of the statute, courts must sometimes resolve disputes where harm to an endangered species is necessary to protect human health and safety. In these cases, courts have severely narrowed the ESA’s protections. Furthermore, changes in human and animal migration caused by climate change will pit human health against the welfare of endangered species far more often. Without better guidance from Congress, courts will likely continue to erode the strength of the ESA. This Note proposes expanding the ESA’s exemption process in order to forestall foundational attacks on the statute. By addressing this issue now, Congress can preserve the ESA’s core protections against increasingly problematic precedent.

I. INTRODUCTION Biological diversity has become a controversial issue in Orange County, California. Recent Endangered Species Act (ESA) critical habitat designations covering some 85,000 acres in the county have been subject several court cases. (1) Questions about both the direct and indirect costs of preserving endangered species are being raised, yet there has been little attention the benefits of biodiversity. This study offers contingent valuation estimates of local residents' willingness pay for several controversial species. It also provides estimates of the aggregate benefits from species protection for future policy discussion. The critical habitat for the Arroyo toad, (2) the Riverside fairy shrimp, the California gnatcatcher, and the tidewater goby (originally designated in 2000) covered a large swath of coastal sage scrub and other grasslands, vernal pools, rivers, and streams of southern California. Some areas overlap those relevant some of the other endangered species in Orange County, such as the Southern California steelhead trout, the Santa Ana sucker, the southwestern willow flycatcher, least Bell's vireo, and the Pacific pocket mouse, among others. Environmental organizations state that habitat designations are necessary prevent fragmented species habitat, severed wildlife corridors, damaged watersheds, and further urban sprawl. But clear opposition the designations has arisen from some landowners, developers, and tollway planners. They suggest housing or road building projects--which require federal permits--may be halted because the land in question, although private, is now critical habitat. This could reduce the number of newly constructed units and raise the price of permitted building. Additional consultation costs could follow. Broader debates about the future of the ESA are also emerging. The ESA, first passed in 1973, has aimed address the market failure of the underpriced social benefits of endangered species. The Act allows staff of the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service list an animal or plant species as endangered or threatened. Critical habitat designations are supposed follow promptly after listing (yet rarely do). These targeted species enjoy strong protections through the ESA's section 9 that prohibits any taking of the species; section 7 also requires federal agencies (or private parties obtaining federal permits) ensure that any action they authorize, fund, or carry out will not jeopardize the existence of the species or adversely modify its critical habitat. The FWS aims eventually delist endangered species through the implementation of recovery plans and restoration efforts written by scientists knowledgeable about species history, status, and threats. Currently, traditional cost-benefit analyses of listing or habitat decisions do not occur. A 1978 amendment the ESA requires some economic analysis at the critical habitat stage; areas may be excluded if the benefits of exclusion outweigh the benefits of specifying the area as habitat, unless the failure designate leads species extinction. Direct costs of species recovery appear quite modest in many of the published recovery plans. The recovery plans are vague regarding expensive private land acquisition with much of the cost secure pools and other lands to be determined. But the indirect (opportunity) costs of housing and transportation development opportunities forgone on critical habitat areas remain the largest source of controversy in the West. Changing land use designations represent a transfer of present producer/consumer surplus future generations, and calculation difficulties usually preclude including these opportunity costs in policy making. (3) Despite the press coverage of the spotted owl and Klamath River debates, little attention has been paid the potential benefits of species preservation in southern California and other areas of the West affected by the recent habitat designations. …

On May 15, 2008, the U.S. Fish and Wildlife Service, an executive branch agency within the Department of Interior, issued a regulation listing the polar bear under the Endangered Species Act (ESA), a federal statute designed to prevent the extinction of imperiled plants and animals, due to global warming and the melting of the bear's sea-ice habitat. This highly publicized milestone firmly cemented the polar bear as the iconic example of the devastating impacts of global warming on the planet's biodiversity. While the polar bear is the most well-known species imperiled by global warming, and the first to be listed under the ESA solely due to this factor, it was not the first species protected under the statute in which global warming played a significant role. Two years earlier, on May 9, 2006, the National Marine Fisheries Service, declared two species of Caribbean coral Threatened under the ESA.

#2017-373 Federal agencies involved in oil spill response in the U.S. are required to comply with several environmental compliance laws. Where a Federal agency is operating in a way that may affect endangered species in the area, Section 7 of the Endangered Species Act (ESA) requires the agency to “consult” with the two Federal agencies responsible for protecting those species and habitats – the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (USFWS). Following the Deepwater Horizon oil spill, nonprofit organizations filed several lawsuits against the U.S. Coast Guard (USCG) and the Environmental Protection Agency (EPA) (the “Action Agencies”) for failure to comply with the ESA during oil spill contingency planning. In one case, a settlement required the Action Agencies to consult with the NMFS and USFWS (together, called the “Services”) on the plan to use oil spill dispersants in California waters. Perhaps responding to these developments, several Regional Response Teams across the country initiated or made plans to review the status of their ESA Section 7 consultations. These efforts have varied in cost, scope, composition of agency representatives involved, and success in completing a consultation for a variety of reasons. There have been numerous challenges for USCG and EPA in meeting the ESA Section 7 consultation requirements for oil spill planning. First, the most recent framework for cooperation between the Action Agencies and the Services regarding consulting on oil spill planning and response activities is contained in an Interagency Memorandum of Agreement (MOA) signed in 2001. Although the agreement is still valid, some parts have been identified as outdated or in need of clarification. Secondly, there are no direct funding mechanisms or dedicated personnel assigned to the Action Agencies to work on pre-spill ESA Section 7 consultations. Third, recommendations and consultation outcomes can vary between Service agencies as well as internally within each Service agency due to a high level of regional autonomy. In 2015, the National Response Team (NRT) formed a new, interagency subcommittee to improve the Federal Action Agencies’ ability to comply with environmental laws such as the ESA with respect to oil spill response and pre-spill planning. A workgroup of the NRT Subcommittee was formed to specifically address pre-spill ESA Section 7 consultation processes. The workgroup includes regional and national representatives from the Action Agencies and the Services. In addition to strengthening relationships and understanding among the participating agencies, the workgroup has identified gaps in the 2001 MOA and is in the process of developing tools and templates on how to conduct pre-spill ESA Section 7 consultations to help fill some of the existing gaps. The workgroup ultimately hopes to facilitate the development of updated, complete, efficient, and consistent ESA Section 7 consultations across the nation.

Red spruce forests, one of the most critically endangered ecosystems in the United Statesprovides critical habitat for several endemic species or subspecies of the Appalachian Mountains, including the Virginia northern flying squirrel. Once listed as threatened under the Endangered Species Act, the Virginia northern flying squirrel was delisted in 2013. Managers are currently focusing their efforts on projects that increase the extent and connectivity of the squirrel’s habitat through red spruce restoration. At present, there is a paucity of available data to assess the implications of the silvicultural activities associated with red spruce restoration on the movement and occupancy of the Virginia northern flying squirrel. In order to inform management activities, I measured home range, fine-scale habitat use, and estimated detection and occupancy for northern flying squirrels across a gradient of red spruce stands in the Monongahela National Forest. I concluded that home ranges for northern flying squirrels within this region are comprised primarily of red spruce and that northern flying squirrels were selecting larger diameter trees compared to the nearest available neighbor. Additionally, I found that microhabitat characteristics alone did not sufficiently predict northern flying squirrel occupancy and that acoustic methods for surveying northern flying squirrels will require further refinement. Future research efforts should focus on a combination of landscape-level and microhabitat covariates to best predict occupancy of this species across the landscape. Future red spruce management should be approached with caution regarding the potential impact on northern flying squirrel habitat in the short-term. I recommended using spatially-explicit modeling to assess the long-term effects of proposed red spruce restoration projects on northern flying squirrel population demographics, dispersal, and metapopulation connectivity prior to the implementation of silvicultural treatments.

Endangered species: The eye of the storm