What is the Endangered Species Act, exactly?
Preservation of wildlife has long been seen as an important goal by the federal government. Starting with the Lacey Act of 1900, a bill that prohibits the sale, acquisition, or transfer of plants and animals collected illegally, the protection of species under threat has grown along with our knowledge of ecosystem functions. These eventually culminated into the most modern bill, the Endangered Species Act of 1973 (or ESA). The ESA recognizes that the vast variety of living things is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” The idea behind these laws is to give the United States Fish and Wildlife Service (FWS) the ability to identify plants and animals that are under threat of extinction (endangered), or under threat of becoming endangered, and to restrict actions that may harm these species.
Amendments to the ESA were made in 1978 and 1982, based on a Supreme Court case, Tennessee Valley Authority vs. Hill. In this case, an endangered fish, the snail darter, would likely have been driven to extinction by the construction of the Tellico dam on the Little Tennessee River. The case was decided 6-3 against the construction of the dam. The Court decided that the ESA’s language only allowed for the best available science to be used in deciding whether or not to list a species and that there were no exceptions in the law for economic impact. The amendments of 1978 created a committee that could create exceptions in ESA protections based on economic impact, or if no other reasonable alternatives exist. The 1982 amendments specify that the science is the only thing that can be considered when listing a species (no economic or other factors can be used), while also creating habitat conservation plans. In the meantime, the snail darter was eventually introduced to another river in the state, as Congress had passed law allowing the Tellico Dam construction.
What are the challenges in the approach of the ESA?
The Tellico Dam case showed that in using the ESA to protect species, the government has a difficult line to walk between conservation and human interest. On one hand, the protection of an endangered species is important to maintaining the health of the local ecosystem and the protection of biodiversity. On the other hand, these protections quite often can make development difficult, since the environmental studies, habitat conservation plans, and new development plans can introduce additional time and monetary costs.
One of the criticisms of the ESA is the low rate at which species are deemed to be “recovered” and removed from the “Threatened” or “Endangered” lists. To date only around 2% of species have been delisted (50 delisted, out of a total of 2,327 total listings) due to recovery, including the Bald Eagle, Yellowstone Grizzly Bear, and the American Alligator. Making the decision to delist a species is a difficult one that takes into account more factors than just population recovery; it must also consider if the species’ population will remain stable.
The FWS takes into account five major factors:
- Continued threats to critical habitats
- Threats of overuse of the species
- Diseases and predation
- Adequacy of local laws
- Other factors that might affect survival
Once the FWS decides to delist a species, it must create a new rule that reads “this species is now delisted,” due to the bureaucratic process of such regulatory agencies. This process requires multiple periods of public comment and consideration of evidence, all of which are points where this process can be slowed through multiple rounds of consideration or lawsuits. Despite all of these hurdles, the ESA has been extremely successful at its primary goal of preventing extinctions: through the efforts of FWS, state and local agencies, over 99% of all species on the endangered species list are still in existence.
Another major issue with the ESA is that it can often be too late to save a species. The federal government moves slowly by design. Addition of a new species to either the “Threatened” or “Endangered” lists requires a formal rule to be made (the same process as delisting a species), which can take months, if not years. In the case of the Rusty Patched Bumble Bee (one of Wisconsin’s very own), the process began with a petition in 2013, but the bee was not added to the endangered list until March of 2017. By this point, the bee had lost 87 percent of its original habitat, and around 88 percent of its population. Despite these limitations, the ESA remains a powerful tool for the protection of endangered life.
But…. It’s just a fish!
A single species might not seem like much of a big deal if it goes extinct, and it is something that happens in nature quite often. However, extinction deprives us the chance to study that organism, and to understand the evolutionary path that led to its survival strategy. We lose the ability to learn from these species, along with ways we could borrow from them, such as in the development of medicines. We lose biodiversity, and with it, some of the potential to protect our food supply from diseases, both current and emerging. Currently, the majority of the world’s food needs are covered by just 12 plant species, and 5 animal species. Aside from biodiversity, some of these species have played important roles in our food supply in other ways. Here in Wisconsin, some of our state’s most prized agricultural products: cherries, plums, and cranberries, are pollinated by the rusty-patched bumble bee. Even in agriculture, our plants and animals are tied into the larger ecosystem. The loss of a species serves as an indicator of the health of our environment. With higher extinction rates, it suggests that other parts of the ecosystem are also at risk. One of the main tools of the ESA, habitat conservation plans, aim to reverse some of this damage by working to prevent the worst kinds of damage.
How might the ESA change under the current administration?
Currently, three bills have been introduced this congressional session to modify the ESA; two in the Senate, one in the House. Senate Bill 375, introduced by Sen. John Cornryn (R-TX), would change the rules for citizen lawsuits under the ESA, requiring the publishing of a suit online and mediation with other affected groups such as landowners or companies. It would also cap reimbursement of court costs under these suits. Senate Bill 376, also by Senator Cornryn, would require all data used to make an endangered species determination, whether public or commercial, be published online. Both bills have been in committee since February. House Resolution 717, from Rep. Pete Olson (R-TX) would change the ESA to allow endangered species petitions to be considered in any order, not just the order received. It would also allow the Department of the Interior (the parent administration of the Fish and Wildlife Service), to reject a new endangered species listing based on economic costs. This bill has also been in committee since January.
In addition to legislative efforts to modify the ESA, the Trump administration has nominated Susan Combs of Texas to the position of Assistant Secretary of Policy, Management, and Budget within the Department of the Interior. A vocal critic of the ESA, Ms. Combs has been critical of the rate at which species have been removed from the list, as well as critical of new additions to the endangered list.
In June, the Western Governors Association, representing the western half of the United States, put out a resolution calling for an overhaul of the ESA. Specifically, their plan calls for the FWS to consider listing petitions out of order, requiring the FWS to take into account state-run conservation plans when deciding to list a species, and creating rules for quickly delisting or downlisting species. Notably, Gov. Jerry Brown of California has refused to take part in the resolution, commenting “California does not support Congressional action on the Endangered Species Act…”
Right now, the ESA and the protections it provides are not under active threat. However, changes to the law are likely to be proposed soon, as the current administration looks to enact a vision of much more limited federal regulation. It is important that as science advocates, we keep in mind that the ESA was never intended to be a first-line of defense against manmade extinction, but rather a tool of last-resort, for when either conservation fails, or when conservation plans were never made. We must work to ensure that any proposed changes to the ESA or the rules behind the Fish and Wildlife Service regarding endangered species, keep in line with the original intent of the ESA: that living things are a treasure of our state and our nation, and that the best available science be used to ensure that human action does not cause their extinction. We must keep on the lookout for policies that put the science in a secondary role, and make our voices heard by our representatives.
Written by John Uhrig for the Milwaukee Area Science Advocates