ENDANGERED SPECIES

ENDANGERED SPECIES. The environmental movement reached its peak with the enactment of the Endangered Species Act of 1973. As public concern over environmental degradation heightened, Congress passed the most sweeping piece of environmental legislation in American history. When President Richard M. Nixon signed the law on 28 December 1973, he enthusiastically proclaimed that nothing is more priceless and more worthy of preservation than the wildlife with which the country had been blessed. Intent on fulfilling Nixon's mandate, the authors of the Endangered Species Act (ESA) made an unmistakably strong statement on national species protection policy. The ESA provided for the protection of ecosystems, the conservation of endangered and threatened species, and the enforcement of all treaties related to wildlife preservation.

Pre-ESA Protection Efforts

Endangered species existed long before 1973, of course. The protection of individual species was an incremental process. Rooted in the tradition of colonial law, U.S. Supreme Court decisions through the nineteenth century ensured state jurisdictional control over that of landowners. By the 1870s, the federal government made it clear that it had an interest in wildlife issues. The establishment of the U.S. Fish Commission in 1871 and YELLOWSTONE NATIONAL PARK in 1872 increased the role of the federal government substantially. The tension between federal and state authority resulted in the Yellowstone Game Protection Act of 1894, which established Yellowstone as a de facto national wildlife refuge in order to protect bison.

In the first half of the twentieth century, the federal government increased its direct, national jurisdiction with such legislation as the Lacey Act (1900), the creation of the first official national wildlife refuge at Pelican Island (1903), the ratification of the Migratory Bird Treaty Act with Canada (1918), and the passage of the Bald Eagle Protection Act (1940). Yet, a comprehensive national policy on species preservation was not enacted until the 1960s. The professionalization of ecology and the dawning of the American environmental movement created the needed atmosphere for reform. Building on the political response to Rachel Carson's SILENT SPRING (1962), the Bureau of Sport Fisheries and Wildlife established the Committee on Rare and Endangered Wildlife Species in 1964. The committee of nine biologists published a prototypical list of wildlife in danger of extinction, entitled the "Redbook," listing sixty-three endangered species. Congress passed a more comprehensive Endangered Species Preservation Act in 1966, requiring all federal agencies to prohibit the taking of endangered species on national wildlife refuges and authorizing additional refuges for conservation. The follow-up Endangered Species Conservation Act of 1969 extended protection to invertebrates. It also expanded prohibitions on interstate commerce provided by the Lacey Act and called for the development of a list of globally endangered species by the secretary of the Interior. The directive to facilitate an international conservation effort resulted in the Convention on International Trade in Endangered Species of Wild Fauna and Flora in early 1973. This set the stage for the Endangered Species Act later that year.

Passage of ESA and Early Challenges

Despite a surge of environmental regulatory lawmaking in the early 1970s, including the CLEAN AIR ACT, Federal Water Pollution Control Act Amendments (CLEAN WATER ACT), Federal Environmental Pesticide Control Act, and Coastal Zone Management Act, debate continued regarding

federal and state regulatory authority and the types of species warranting protection. Representative John Dingell, who introduced the bill that became the Endangered Species Act, insisted that all flora and fauna be included. Section 29a of the ESA makes this clear by stating that all "species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." The issue of regulation resulted in greater compromise. Section 6, which directs the secretary of the Interior to foster cooperative agreements with states while allowing them substantial involvement in species management, also provides funds for state programs. In an effort to address these issues and others, including the geographical extent of prohibitions and the location of governmental responsibility, the House worked on fourteen different versions while the Senate worked on three. The bill ultimately passed both houses of Congress almost unanimously, setting a clear mandate (with only twelve dissenting votes in the House and one in the Senate). The subsequent history of ESA was much more highly contested.

One of the first major challenges to the ESA came with the TVA v. Hill battle over the Tellico Dam. From its inception, the Tellico Dam project of the Tennessee Valley Authority (TVA) faced major challenges. In the early 1970s, a lawsuit charging the violation of the 1969 National Environmental Policy Act (NEPA) and an inadequate environmental impact statement delayed construction. Resuming construction in 1973, the project halted again in 1977 when a lawsuit charged Tellico with violating the Endangered Species Act. The discovery of a small fish, the snail darter, in the portion of the Little Tennessee River yet to be swallowed up by the dam, created what later became a textbook case in environmental ethics. U.S. Attorney General Griffin Bell, who argued the TVA case himself, compared the three-inch fish to the social and economic welfare of countless people. The Supreme Court response was unequivocal. With the law upheld, the project stopped in its tracks. When the ESA subsequently came up for reauthorization in 1978, a plan to provide a mechanism for dispute resolution, in cases like Tellico, resulted in the creation of the first major change in ESA. The Endangered Species Committee, dubbed the "God Squad," was given the power to decide when economic and societal interests outweighed the biological consequences. Ironically, after the committee rejected the exemption for Tellico, populations of snail darters were found in neighboring Tennessee creeks. This discovery came after the authorization for Tellico's completion squeaked through in an amendment to the 1979 Energy and Water Development Appropriations Act.

While the "God Squad" had refused the exemption for Tellico, the committee opened the door for mitigation plans by considering "alternative habitats" for endangered species. An exemption granted in 1979 to the Grayrocks Dam and Reservoir in Wyoming, which threatened whooping crane habitat downstream, became the precursor to the Habitat Conservation Plan (HCP). A 1982 amendment to ESA created HCPs as an effort to resolve alleged unequal treatment in federal and private sectors. HCPs allowed for the incidental taking of endangered species by private property owners in exchange for the creation of a plan to offset losses through separate conservation efforts. By 1990, the U.S. Fish and Wildlife Service (FWS) had formally approved seven HCPs, with twenty more under way.

Struggles between Competing Interests in the 1990s

The final extended reauthorization of ESA in 1988 allotted appropriations for five years. Amendments provided funding for state cooperative programs, encouraged the use of emergency powers to list backlogged species candidates, and strengthened the protection of endangered plants. Since 1993, however, Congress has authorized funds only in one-year increments, while bills to weaken ESA have been regularly introduced. The apparent ambivalence with respect to reauthorization reflected divisions between protagonists and antagonists for a strengthened ESA. Conservation organizations such as the World Wildlife Fund and the Nature Conservancy, along with activist oriented organizations such as the Sierra Club and the National Wildlife Federation, grew in strength and numbers during the 1990s, while demanding an expanded ESA. Meanwhile, private property advocates represented by the loose-knit but widespread "wise use" movement led efforts to stop ESA intrusion into the lives of private landowners. The National Endangered Species Act Reform Coalition was particularly effective at getting legislation introduced to modify ESA.

The widely publicized controversy over the northern spotted owl epitomized the struggle of competing interests. The U.S. Forest Service and the Bureau of Land Management advocated protection of this Pacific Northwest subspecies as early as 1977. Yet, the FWS listed the owl as threatened thirteen years later, in 1990, after years of recommendations for habitat preservation by scientific and environmental coalitions. The "God Squad" met for the third time in fourteen years, in 1993, to discuss the northern spotted owl. Amidst emotional media coverage of the plight of loggers and their families, thirteen out of forty-four tracts of land were opened up, as environmental regulations like ESA took the blame for contributing to economic hardship. While environmentalists used the spotted owl as a surrogate for old growth forests, the timber industry criticized the use of the owl to protect old growth trees. A resolution ultimately took the intervention of President Bill Clinton. The president organized a "Forest Summit" in 1993 to develop the Pacific Northwest Plan, which included a substantial reduction in timber harvesting, an ecosystem-based management plan for 25 million acres of federal land, and an economic plan for displaced loggers and their families.

The Pacific Northwest Plan signaled a shift in federal endangered species policy. In 1995 the National Research Council report on the ESA argued that an ecosystem-based approach to managing natural resources must maintain biological diversity before individual species are in dire trouble. The Clinton administration's Interagency Ecosystem Management Task Force echoed this proactive approach in their 1995 report, which called for a collaboratively developed vision of desired future conditions that integrated ecological, economic, and social factors.

The shift toward an ecosystem approach follows historical changes in the primary cause of species endangerment from overharvesting to habitat destruction to ecosystem-wide degradation. The history of ESA demonstrates that competing economic goals, political priorities, and ethical arguments have also made solutions more elusive.

ENDANGERED SPECIES

Pre-ESA Protection Efforts

Passage of ESA and Early Challenges

Struggles between Competing Interests in the 1990s

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