Extinction or Bust: Improving Species Recovery Under the Endangered Species Act by Amending the Funding Allocation and Recovery Planning Processes

Abstract

The Endangered Species Act of 1973 (“ESA”) is among the most powerful environmental statutes passed in U.S. history and serves as a blueprint for government-sanctioned conservation efforts globally. At its core, the ESA seeks to protect listed plant and animal species by prohibiting actions that harm their chances of survival. While the ESA has generally succeeded in pursuing this goal as implemented, it has also led to a host of problems that undermine its effectiveness and generated widespread discontent among conflicting, disparate stakeholders, including environmentalists, industry groups, government agencies, and private landowners. Criticisms of the ESA generally focus on several issues including its procedural inconsistency and the perceived indiscriminate harshness of its land-use restrictions. However, the greatest shortcoming of the ESA underpins all these concerns: its failure to achieve its stated objective of widespread and efficient species recovery. As climate change, habitat destruction, and other major, anthropogenic threats to biodiversity continue to mount on a global scale, the need to preserve biodiversity for present and future generations, as well as the attendant ecological, economic, and cultural benefits, is greater than ever.
 This Comment contends that the ESA is a critical statute whose failure to achieve species recovery is not only its greatest weakness but also its greatest opportunity for reform. The Comment begins by exploring why the ESA has thus far failed to achieve widespread species recovery, in particular the issues of insufficient funding and the legal unenforceability of recovery plans. Next, this Comment argues that the ESA can achieve higher rates of species recovery through basic, common-sense changes to the present ESA. These measures include (1) establishing a recovery budgeting committee that analyzes the effectiveness of prescribed management actions and recommends allocation of funding based on a comprehensive framework and (2) amending the ESA to make adherence to management actions in recovery plans binding on the acting agency, with procedures for revising management actions in the face of new information. The Comment concludes by charging that in strengthening the ESA’s commitment to recovery, the Act may function more effectively while reconciling the interests of juxtaposed stakeholders.