Agriculture and the Endangered Species Act

• Author: William S. Eubanks II
• Pages: 185-206

Page 185

Chapter 11

Agriculture and the Endangered Species Act

Will iam S . E uba nks II

In many respects, the Endangered Species Act (ESA)1 is the federal environmental statute with the

strongest substantive and procedural mandates to protect the natural environment, particularly wildlife

species threatened with the risk of extinction.2 is mandate is especially forceful in the agricultural

context because, in stark contrast to other environmental laws (see Chapters 9 and 10), the U.S. Congress

has never carved out an exemption to the ESA for any agricultural activity.3 erefore, while seen as draco-

nian by some farmers (and other landowners) subject to its provisions,4 the ESA stands alone among envi-

ronmental laws in imposing a uniform mandate that serves our nation’s paramount interests in ecosystem

protection and wildlife conservation.5

A. The ESA: Statutory and Regulatory Framework

e ESA is a complex statute and has been the subject of entire treatises devoted to the intricacies of the law

and its implementing regulations.6 is section provides a primer on pertinent ESA provisions and regula-

tions, with a focus on the issues where the st atute has trad itionally been, and will likely in the future be,

applied to private individuals, corporations, and governmental entities in the agriculture and food realm.7

1. Background

Congress enacted the ESA in 1973 “to provide a means whereby the ecosystems upon which endangered

species and threatened species depend may be conserved, [and] to provide a program for the conservation

of such endangered species and threatened species.”8 As the U.S. Supreme Court explained in its landmark

ruling in Tennessee Valley Authority v. Hill, the ESA “[a]s it was nally passed . . . represent[s] the most

comprehensive legislation for the preservation of endangered species ever enacted by any nation.”9 Congress

recognized that such a statute was necessar y to protect at-risk wildlife and plant species, which are in some

cases “rendered ex tinct as a consequence of economic growth and development untempered by adequate

1. 16 U.S.C. §§1531-1544.

2. See, e.g., J.B. Ruhl & James Salzman, Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling

Away, 98 C. L. R. 59, 59 (2010) (calling the ESA “one of the most potent environmental laws”); Sandra B. Zellmer & Scott A. Johnson,

Biodiversity in McElligot’s Pool, 38 I L. R. 473, 480 (2002) (calling the ESA “the ‘pitbull’ of environmental laws”).

3. See, e.g., Ved P. Nanda, Agriculture and the Polluter Pays Principle, 54 A. J. C. L. 317, 335 (2006) (explaining that “[f ]arms are not

exempted under th[e] [Endangered Species] Act”).

4. E.g., Pacic Legal Foundation, Endangered Species Act blog, http://blog.paciclegal.org/tag/endangered-species-act/.

5. E.g., J.B. Ruhl, Agriculture and the Environment: ree Myths, ree emes, ree Directions, 25 E E. L.  P’ J. 101, 107

(2002) (opining that the ESA is “unyielding and uncompromising,” and arguing that “[r]esolving agri-environmental policy through the ESA

is not pretty, and does not usually lead to inventive solutions”).

6. See, e.g., E S A: L, P,  P (Donald C. Baur & W. Robert Irvin eds., 2d ed. 2010); E

S D (Lawrence Liebesman & Rafe Petersen eds., 2d ed. 2010).

7. It should be noted that the ESA’s nondiscretionary wildlife protection mandates are separate and distinct from voluntary Farm Bill programs

aimed at incentivizing farmers to conserve wildlife and wildlife habitat. e most notable example of such a program is the Wildlife Habitat

Incentives Program, which “pays up to 75 percent of the cost to private land owners of enhancing wildlife habitat on their land” and which

resulted in enhanced protection on nearly 813,000 acres of land in 2009. Nat’l Wildlife Fed’n, Background on Farm Bill and Wildlife, http://

www.nwf.org/Wildlife/Policy/Farm-Bill/Farm-Bill-Background.aspx#WHIP.

8. 16 U.S.C. §1531(b).

9. Tennessee Valley Auth. v. Hill, 437 U.S. 154, 180 (1978).

Page 186 Food, Agriculture, and Environmental Law

concern and conservation.”10 Indeed, as the Supreme Court has opined in clarifying the broad reach of

the ESA, the statute “reveals a conscious decision by Congress to give endangered species priority over the

‘primary missions’ of federal agencies” and further “shows clearly that Congress viewed the value of endan-

gered species as ‘incalculable’” and thus deemed their protection of a higher priority than economic activi-

ties, including agriculture, food production, and food distribution.11 e purpose of this policy—which

is referred to as a n “ institutionalization of caution” with respect to endangered a nd t hreatened species

conservation—is “to halt and reverse the trend toward species extinction, whatever the cost.”12

is institutionalization of caution is embodied by various substantive and procedural mandates in the

ESA. As t he Supreme Court noted, it is “reected not only in the stated policies of the Act, but in literally

every section of the statute.”13 Certain mandates a re triggered even before a species is listed, during which

time the lead agency—the U.S. Fish and Wildlife Service (FWS) for terrestrial a nd f reshwater species

(including plant species)14 or the National Marine Fisheries Service (NMFS) for marine and anadromous

species—is considering relevant biological evidence to determine whether listing is warranted, and the

statutory mandates continue to protect a species once it is listed until a species has recovered to t he point

where listing is no longer necessary or until a species has gone extinct.15

2. Section 4—The Listing Process

e listing process is governed by §4 of the ESA.16 FWS or NMFS is required within certain statutorily

imposed deadlines to consider and respond to a petition submitted by any “interested person” seeking to

add a species to the list of endangered or threatened species.17 Listing determinations under the ESA must

be made “solely on the basis of the best scientic and commercial data ava ilable,”18 which has been inter-

preted, to the chagrin of many private landowners and legal commentators, to preclude the agency from

“consider[ing] economic or social impact s as part of the listing determination.”19 FWS or NMFS must list

a species under the ESA if the respective agency nds, based on t he best available scientic evidence, that

a species is “endangered” or “threatened,” due to any one of ve factors:

(A) the present or threatened destruction, modication, or curtai lment of its habitat or range;

(B) overutilization for commercial, recreational, scientic, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory regimes;

(E) other natural or manmade factors aecting its continued existence.20

At the end of t he listing process, FWS or NMFS must determine whether listing is wa rranted. If it is,

the agency must then list the species as “endangered” or “threatened.”21 An endangered status is given to

a species “which is in danger of extinction throughout all or a signicant portion of its ra nge,”22 whereas

10. 16 U.S.C. §1531(a)(1).

11. Hill, 437 U.S. at 184, 187-88.

12. Id. at 184, 194; see also id. at 174 (explaining that an “examination of the language, history, and structure of the legislation under review here

indicates beyond doubt that Congress intended endangered species to be aorded the highest of priorities”); id. at 194 (“Congress has spoken

in the plainest of words, making it abundantly clear that the balance has been struck in favor of aording endangered species the highest of

priorities, thereby adopting a policy which it described as ‘institutionalized caution.’”).

13. Id. at 184 (emphasis added).

14. 16 U.S.C. §1532(14) (dening “plant” under the ESA as “any member of the plant kingdom, including seeds, roots and other parts thereof”).

15. See generally id. §1536.

16. For more detailed information on the ESA listing process, see J.B. Ruhl, Listing Endangered and reatened Species, in E S

A: L, P,  P, supra note 6, at 16-39; Oliver A. Houck, e Endangered Species Act and Its Implementation by the

Departments of Interior and Commerce, 64 C. L. R. 277 (1993).

17. 16 U.S.C. §1533(b)(ii)(3)(A).

18. Id. §1533(b)(1)(A).

19. Mary Jane Angelo & Mark T. Brown, Incorporating Emergy Synthesis Into Environmental Law: An Integration of Ecology, Economics, and Law,

37 E. L. 963, 984 (2007). For more discussion on implementation of the ESA’s best available science standard, see Holly Doremus, e

Purposes, Eects, and Future of the Endangered Species Act’s Best Available Science Mandate, 34 E. L. 397, 419-26 (2004); J.B. Ruhl, e

Battle Over Endangered Species Act Methodology, 34 E. L. 555 (2004).

20. 16 U.S.C. §§1533(a)(1)(A)-(E).

21. Id. §1533(b)(3)(B).

22. Id. §1532(6).