Above All, Try Something: Two Small Steps Forward for Endangered Species

• Date: 01 August 2010

40 ELR 10812 ENVIRONMENTAL LAW REPORTER 8-2010

R E S P O N S E

Above All, Try Something:

Two Small Steps Forward

for Endangered Species*

by Richard P. Johnson

Rich Johnson has been an environmental and natural resource attorney with the U.S. Government Accountability Oce for over

15 years. He has worked on numerous GAO reports addressing the implementation of the Endangered Species Act and federal

land management laws. e views expressed herein are entirely those of the author and do not reect the views of the GAO.

In a recent essay,1 Katrina Wyman suggests four substan-

tial reforms aimed at improving implementation of the

Endangered Species Act (ESA)2 and furt hering species

recovery: (1) decoupling listing decisions from perma nent

species protection;3 (2) requiring the Fish & Wildlife Ser-

vice (FWS)4 to implement cost-eective species protection

measures;5 (3) prioritizing funding for biological hotspots;6

and (4) establishing additional protected areas.7 Although

Wyman does not specically frame it this way, t hese four

proposals amount to a grand legislative bargain: ESA critics

would get a regulatory mechanism that specically requires

the FWS to take costs into account, while environmental-

ists would get more funding for species recovery and more

land, both federal and nonfederal, on which development is

restricted or prohibited.

ese are bold proposals. Wyman correctly perceives that

the most likely way forward from the current sterile debates

over the E SA will involve some form of painful legislative

compromise. However, her proposals reach so fa r that they

stand little chance of immediate enactment. Two more mod-

* “It is common sense to take a method and try it. If it fails, admit it frankly and

try another. But above all, try something.” Franklin D. Roosevelt. Oglethorpe

University Commencement Address (May 22, 1932).

1. Katrina Miriam Wyman, 

, 40 ELR (E. L.  P’ A. R.) 10803 (Aug. 2010) (a longer

version of this Article was originally published at 17 N.Y.U. E. L.J. 490

(2008)).

2. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

3. Wyman, supra note 1, at 10804-05.

4. e U.S. Department of the Interior’s Fish and Wildlife Service and the U.S.

Department of Commerce’s National Marine Fisheries Service (NMFS) share

responsibility for implementing the ESA. Generally, the Fish and Wildlife

Service manages land and freshwater species, while NMFS manages marine

and anadromous species. Of the 1900 listed species, NMFS has jurisdiction

over just 68. Endangered Species Act (ESA), http://www.nmfs.noaa.gov/pr/

laws/esa/ (last visited Jan. 23, 2010). Although some of these species pres-

ent headline-grabbing public policy challenges, such as the sockeye salmon

(http://www.nwr.noaa.gov/ESA-Salmon-Listings/Salmon-Populations/Sock-

eye/SOSNR.cfm), for simplicity’s sake I conne my remarks (as Wyman did)

to the Fish and Wildlife Service.

5. Wyman, supra note 1, at 10805-07.

6. Id. at 10807-08.

7. Id. at 10808.

est ty pes of compromise focused on federal lands may oer

greater prospects for near-term progress.

I. One Giant Leap?

Everyone who checks into an emergency room checks out,

either with or without a pulse. e ESA’s emergency room is

dierent: most listed species simply do not leave.8 is out-

come is disappointing but not necessarily d isastrous.9 While

one of the ESA’s goals is species recovery,10 the ESA is hardly

the rst law to fall short of its own grandiose aspirations.11

“e reality is that the ESA has worked out as a pragmatic

compromise—few species actual ly recover but few slide into

extinction[.]”12 Successive Congresses have tolerated this

compromise; the ESA has been substantively amended just

once in the last 20 years.13

is long legislative reticence in the face of pungent con-

troversy suggests the odds are against f undamental changes

to the ESA. In addition, the grand bargain Wyman proposes

would require each side in the ESA debate to make large,

8. See, e.g., John Kostyack & Dan Rohlf, Conserving Endangered Species in an

38 E. L. R. N  A 10203, 10208

(2009).

9. Well, it is not disastrous yet.  note 17.

10. e ESA’s principal purpose is “to provide a means whereby the ecosystems

upon which endangered species and threatened species depend may be con-

served[.]” 16 U.S.C. §1531(b). e act denes “conserve” to mean “the use of

all methods and procedures which are necessary to bring any endangered spe-

cies or threatened species to the point at which the measures provided pursuant

to this chapter are no longer necessary.” 16 U.S.C. §1532(3).

11. For example, the Clean Water Act declares that “it is the national goal that the

discharge of pollutants into the navigable waters be eliminated by 1985.” 33

U.S.C. §1251(a)(1), ELR S. FWPCA §101(a)(1). Today this goal seems

comical, yet few have written o the Clean Water Act as a wholesale failure.

12. J.B. Ruhl,         , 41

T: ABA S  E, E,  R N-

 9 (Nov./Dec. 2008). See generally U.S. G A

O, E S: F  W S G F-

 R F  H-P S,  N  P-

 A I F D, GAO-05-211 (2005).

13. Pub. L. No. 108-136, Div. A, Title III, §318, 117 Stat. 1433 (2003) (limiting

the FWS’ authority to designate critical habitat on lands controlled by the U.S.

Department of Defense).

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