When Europeans first arrived in North America, they saw the continent's natural resources, including its wildlife, as inexhaustible. By the early 20th century, however, it was clear that even abundant resources could be rapidly depleted. The great herds of bison had been reduced to a few scattered remnants. The last passenger pigeon, a sad vestige of the flocks that once darkened the skies of North America, died in a zoo in 1914.
Because states proved unable to protect dwindling species on their own, federal legislation was enacted to reinforce state hunting laws, followed by federal restrictions on the hunting of migratory species. National Parks and National Wildlife Refuges provided havens for some dwindling species. By the 1960s several popular game species, such as deer and elk, had rebounded significantly, but other species, such as the gray wolf, bald eagle, and whooping crane, were continuing to decline.
The first federal endangered species legislation, passed in 1966 and substantially amended in 1969, gave the federal government explicit authority to acquire land for the conservation of species. It encouraged, but did not require, conservation efforts. By the early 1970s, it was clear that this legislation had not stemmed the tide of extinctions. The Nixon administration asked Congress to provide stronger tools for conservation, and in 1973 Congress responded by enacting the Endangered Species Act (ESA).
The ESA recognizes the esthetic, ecological, educational, historical, recreational, and scientific value provided by non-human species. It calls for the Fish and Wildlife Service and National Marine Fisheries Service to identify species that are: (1) "endangered" (currently in danger of extinction in all or a significant portion of their range) or (2) "threatened" (likely to become endangered in the foreseeable future). Those determinations must be made solely on the basis of the best available scientific information, without regard to the costs of conservation.
Listed species are protected against careless extermination. Federal agencies are required to consult with the Fish and Wildlife Service and NMFS to make sure that actions they take, authorize, or fund, are not likely to jeopardize the continued existence of listed species. Federal agencies also are supposed to develop programs for species conservation.
Private actors may not deliberately harm, capture, or traffic in endangered species. They also may not engage in actions that incidentally harm endangered species without a permit. Permit applicants must agree to reduce or compensate for the effect of their actions on listed species to the extent practicable, and they must establish that their actions will not jeopardize the continued existence of the species. Threatened species can be given less protection against harm by private actors than endangered species, but must be sufficiently protected to allow them to recover to the point where they no longer need protection. A deliberate choice can be made to take an action that will jeopardize the continued existence of a species, but that choice requires careful consideration. A cabinet-level committee (sometimes referred to as the "God Squad") must determine that (1) the proposed action is of national or regional importance and (2) there are no alternatives that would allow the action to go forward but would still conserve the species.
The Endangered Species Act has been controversial since it became apparent that conservation inevitably places some limits on development. Many listed species have habitat requirements that are not compatible with intensive land development, aggressive timber harvest, or drying up of streams.
What's At Stake?
Opponents of conservation describe the ESA as a failure because few species have been recovered sufficiently to be removed from the protected lists. It is wrong to use that as a measure of the ESA's effectiveness. Species typically are not listed until their populations have been greatly reduced. Not surprisingly, they often require a long time to rebound. Moreover, species cannot be considered recovered until they no longer need the protection of the law. For species vulnerable to habitat loss, that time may never come because no other state or federal law provides such broad protection against habitat destruction.
The ESA has protected species against extinction, which is its main goal. Only nine species have gone extinct while on the protected list. Three times as many are known to have disappeared while awaiting listing. Without the law's protection, scientists believe hundreds of listed species would have joined them.
Critics also contend that ESA implementation places the costs of conservation unfairly on landowners rather than taxpayers. Extremists, including prominent Congressional advocates of ESA "reform," argue that government should pay property owners the market value of any development they are required to forego. They claim that society at large receives the benefits of conservation, and should therefore bear its costs. This argument proceeds from the faulty premise that landowners have a right to develop their property to its fullest regardless of the effect on public resources.
Proponents of conservation point out that property ownership carries responsibilities as well as rights. Property owners have a responsibility not to interfere with public rights. Just as they may not use their property in a way that fouls the air and waters around them, property owners have a responsibility to leave some room for wildlife. The ESA makes limited demands on landowners, requiring only that they mitigate the harmful effects of their development to the extent practicable and that they refrain from jeopardizing the continued existence of listed species. Typically, that means setting aside a small proportion of land for preservation while the rest is developed.
Government continues to bear a major share of the costs of conserving endangered species. Federal conservation plans focus on federally-owned lands to the extent possible. Lands are acquired for National Wildlife Refuges to protect species. The federal government makes grants to states for endangered species protection, and to property owners for habitat restoration efforts.
Finally, critics complain that regulatory actions taken under the ESA are not supported by enough scientific evidence. The degree of scientific support for ESA actions has been a perennial issue. Environmentalists have long believed that not enough was being done to protect declining species in light of the scientific evidence. Developers, on the other hand, have long argued that unjustified protective actions are unnecessarily impeding economic progress. The problem is that typically little scientific data is available about the needs of listed species or the impact on those species of particular actions. The real issue, therefore, is what decisions should be made in the face of uncertain information. Views on that question depend upon the relative values assigned to conservation and development. In light of the strong, consistent public support for protecting endangered species and avoiding extinction, it seems clear that more targeted funding to improve our knowledge of endangered species is warranted.
The goal of the ESA, to prevent careless extinction due to human action, is sound. Extinction is irreversible. It robs current and future generations of all the benefits, known and unknown, of the species for all time. That sort of harm should not be caused unknowingly or for the benefit of a few people.
Decisions on the Table
Before passage of the ESA, species in the United States were exterminated, or nearly so, because we simply didn't notice the effect our actions were having on them. The ivory-billed woodpecker, whose rediscovery in 2005 caused much excitement, was pushed almost to extinction by the systematic harvest of the southern hardwood forests it inhabited. Other species were eliminated through the deliberate actions of a small number of people who knew what they were doing but simply didn't care. The last wild flocks of passenger pigeons, for example, were harvested by sport hunters.
The ESA has helped to make us conscious of the effects of our actions on other species. It is not true that the ESA puts the needs of other species above those of people. The ESA prohibits only actions that may cause extinction, the most extreme harm possible, and it provides an exception where human life is in danger. There may be circumstances under which other human needs are so important that they justify deliberate extinction, but those circumstances are rare. No individual should make a decision that determines the fate of an entire species. The ESA seeks to ensure that extinction is a careful societal choice, made in a highly visible setting.
CPR believes that landowners should bear their fair share of the costs their development imposes on society, including the costs of conservation measures their development makes necessary. Government, state and local as well as federal, should also share conservation costs. It is appropriate for government to fund restoration efforts, to provide technical assistance to landowners required to engage in conservation, and to devote publicly-owned lands to conservation purposes. More public money should be devoted to these efforts, but they should not be seen as a substitute for regulation.
Science has an important role to play in species conservation. Demands for more scientific support, however, must not be used as cover for anti-conservation goals. It is true that we often do not know as much as we would like to about declining species. Given the irreversibility of extinction, CPR believes that a cautious approach, which gives species the benefit of the doubt, is appropriate in the face of important data gaps. At the same time, CPR believes it is critical that efforts be made to fill those gaps where possible, and that regulatory decisions be regularly updated to reflect the latest knowledge.