Biophilia, the Endangered Species Act, and a new endangered species paradigm.

• Author: Preheim, L. Misha

It is estimated that we share the planet with between ten and one hundred million other species.(1) Surprisingly, humans have given names to approximately 1.4 million species, a fraction of the total.(2) We have, however, brought about the extinction of an estimated 10% of the species that existed before humanity came on the scene, and it is predicted that another 20% will be lost in the next thirty years.(3) One scholar has noted that "[t]he extinction event now taking place rivals the five great extinctions that have occurred in the earth's geologic history, only this time it is humans, not asteroids, that are the cause."(4) Humanity has begun to recognize this catastrophe(5) and, in some cases, has taken action. The Endangered Species Act (ESA)(6) is one immediate, and potentially powerful, response to the extinction of species in the United States.

Unfortunately, the recent failure of the judiciary to interpret the ESA more expansively has limited the Act's ability to preserve species.(7) This failure is reflected in the courts' inability to properly account for humanity's intrinsic connection with nature when determining what constitutes "harm" under the ESA. If the courts continue the perpetuation of a myopic understanding of the interplay between human life and the environment, it is humanity that inevitably will be affected.

The inherent connection that humanity maintains with nature, christened "biophilia" by the Harvard biologist Edward Wilson,(8) provides the impetus for an argument that courts should rethink the way in which they have interpreted the ESA. Put simply, the intrinsic affiliation with nature that exists within the human species calls for an expansive interpretation of the ESA. This expansion would result in a definition of harm that recognizes that species must be protected from the potential, albeit conceivably uncertain, harm that habitat destruction can effect. This Note argues that biophilia provides the foundation for a judicial expansion of the definition of "harm" under the ESA.

The first section of this Note contains an overview of biophilia. The doctrine of biophilia intricately demonstrates humanity's connection with the natural world; this connection is a key element of the ESA. The first section also contains an extensive discussion of the recognition afforded biophilia by other disciplines. This recognition is indisputable.(9) The judiciary, by failing to incorporate this theory into the legal decision-making process, is an isolated outpost detached from the realities of the scientific community.

Section two provides a detailed discussion of relevant case law under the Act. The ESA provides that no one shall "harm" a species that has been listed as endangered or threatened.(10) Much of this section focuses on what constitutes "harm" to a species as defined by the ESA, the Department of the Interior, and courts.(11) The Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon(12) is perhaps the most important case in this area of law, and, consequently, this section contains an extensive discussion of Sweet Home. The Sweet Home court failed to recognize biophilia and, in so doing, permitted an overly narrow definition of "take" under the ESA. Had the Court recognized the intrinsic connection between humanity and nature, it would have concluded that "harm" to a species can occur in a myriad of ways far short of "`significant habitat modification or degradation that actually kills or injures wildlife.'"(13)

Section two also considers standing under the ESA(14) and concludes that the Supreme Court's decision in Bennett v. Spear(15) failed to adequately recognize Congress's biophilic intent in passing the Act. Had the Court subscribed to this purpose, it would have recognized that affording standing to nonenvironmental interests is inherently incompatible with the ESA's goal of protecting endangered species. A better approach to endangered species legislation is illustrated through the adoption of the concept of aesthetic value, which has occurred in the standing context. This concept is kindred to a biophilic approach; the leap from a recognition of the aesthetic value that humanity places on the natural world is akin to the recognition of our inherent connection with living organisms.

Section three provides a synopsis of the history of the ESA, including an examination of the legislative history and underlying purpose of the Act. When enacting the ESA, Congress recognized humanity's connection with nature as a primary purpose for protecting species.(16) While the theory of biophilia was not developed until well after the enactment of the ESA, the belief that humans have an intrinsic connection with the natural world was certainly an extensive part of the dialogue that occurred within Congress prior to passage of the Act.

Finally, section four provides an overview of the limits of biophilia and discusses the new endangered species paradigm that will invariably result from the adoption of biophilia. The very purpose of the ESA provides courts with the latitude they need to introduce biophilia into the legal world; yet, an unconstrained ESA is certainly not the end goal of the biophilia paradigm. Rather, the recognition of biophilia creates a definition of "harm" that includes potential future harm to species, and also incorporates anthropogenic harm into the decision-making process. This definition also precludes a balancing approach to endangered species protection, based largely on the central purpose of the ESA, and also precludes nonenvironmental interests from satisfying standing under the Act.

The ESA recognizes that species are vitally important, both for biocentric as well as anthropocentric reasons. Biophilia provides a compelling anthropocentric reason for protecting species that should be incorporated by the judiciary. The end result of this incorporation includes not simply increased protection of endangered species, but also an enduring enrichment to humanity.(17)

BIOPHILIA

What is Biophilia?

In Biophilia, the biologist Edward O. Wilson(18) presents the argument that human beings have an intrinsic connection with nature. Biophilia, he explains, is "the innate tendency to focus on life and lifelike processes."(19)

From infancy we concentrate happily on ourselves and other organisms. We learn to distinguish life from the inanimate and move toward it like moths to a porch light. Novelty and diversity are particularly esteemed.... I will make the case that to explore and affiliate with life is a deep and complicated process in mental development. To an extent still undervalued in philosophy and religion, our existence depends on this propensity, our spirit is woven from it, hope rises on its currents. There is more. Modern biology has produced a genuinely new way of looking at the world that is incidentally congenial to the inner direction of biophilia. In other words, instinct is in this rare instance aligned with reason. The conclusion I draw is optimistic: to the degree that we come to understand other organisms, we will place a greater value on them, and on ourselves.(20) This simple, yet elegant concept--that human beings have an innate, genetic connection with nature suggests astounding ramifications. Biophilia encompasses every action we take: every house we build, every painting we create, and every poem we write(21) is shaped by our affiliation with the natural world and with other life forms. "The significance of biophilia in human biology is potentially profound.... It is relevant to our thinking about nature, about the landscape, the arts, and mythopoeia, and it invites us to take a new look at environmental ethics."(22)

Thus, through our common DNA and through millions of years of co-evolution, we invariably have developed a connection with other species. The evidence of biophilia is not speculative but rather quite concrete. Cultural norms and patterns indicate that biophilia is ubiquitous to the human species. Wilson cites as one of the strongest examples the universal awe of the serpent that is found in all cultures, from the Hopi Indians(23) to urban New Yorkers.

These cultural manifestations may seem at first detached and mysterious, but there is a simple reality behind the ophidian archetype that lies within the experience of ordinary people. The mind is primed to react emotionally to the sight of snakes, not just to fear them but to be aroused and absorbed in their details, to weave stories about them.(24) Evidence of the Tenability of Biophilia

The legal world stands alone by failing to adopt biophilia or even make reference to it when reaching decisions that affect the survival of species. The theory of biophilia is not cited in any reported federal case.(25) This might give the indication that biophilia and its architect, Edward Wilson, are not taken seriously in the scientific world or in other academic areas. Reality tells a different story: recognition of biophilia is prevalent in many academic disciplines including economics, sociology, architecture, and mythology.(26)

Within the economic field, there are a number of methodologies that have been developed to value the environment.(27) Contingent valuation, for example, uses social survey techniques to ascertain how we value the natural world.(28) "Claims for this approach have recently been much urged in both official and academic circles, and it has found serious political favour."(29) Contingent valuation studies indicate that human beings place a high value on the natural world. For example, one willingness-to-pay study estimated that the elephants in Kenya provide a value of $25 million per annum, "a sum almost ten times the value of poached ivory exports."(30)

Furthermore, the economic value of ecotourism is high, especially on a global scale. "[N]ature and wildlife tourism may now account for as much as 10 percent of the $300 billion...