Congress and charismatic megafauna: a legislative history of the Endangered Species Act.

Author:Petersen, Shannon
 
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The last; word of ignorance is the man who says of an animal or plant: `What good is it?' ... If the biota, in the course of aeons, has built something we like but do not understand, then who but a fool would discard seemingly useless parts? To keep every cog and wheel is the first precaution of intelligent tinkering.(1)

--Aldo Leopold

I would be in favor of undertaking tremendous costs to preserve the bald eagle, and other major species, but that kind of effort is out of proportion to the value of the woundfin minnow, or the snail darter, or the lousewort, or the waterbug, or many others that we are attempting to protect.(2)

--Senator Jake Garn (R-Utah)

  1. INTRODUCTION

    Today, the Endangered Species Act of 1973 (ESA)(3) stands among the strongest of environmental laws. The U.S. Supreme Court has described it as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."(4) The ESA is also unique among environmental laws because its link to the protection of human health and quality of life is most tenuous. For this reason, historian Roderick Nash has called it "the strongest American legal expression to date of environmental ethics."(5) Secretary of the Interior Bruce Babbitt describes the ESA as "undeniably the most innovative, wide-reaching, and successful environmental law which has been enacted in the last quarter century."(6) But while the ESA may be the "crown jewel of the nation's environmental laws,"(7) it is also the "pit bull of environmental laws."(8)

    The power of the ESA rests primarily in three sections: section 4, section 7, and section 9.(9) Together, these sections form the substantive foundation of the Act, and the source of most controversy over the ESA today. The ESA also includes a citizen suit provision that has served as a powerful tool for environmental groups to expand and enforce the powers in sections 4, 7, and 9.(10) Indeed, litigation has played a crucial role in expanding the scope of the Act and provoking controversy. Although many other sections of the Act provide significant protection for species, these three sections are the most important.

    Section 4 instructs the Secretaries of the Interior and Commerce to list species as either threatened or endangered "solely on the basis of the best scientific and commercial data available.(11) The Secretary of the Interior, responsible for avian, terrestrial, and freshwater species, has delegated this power to the Fish and Wildlife Service (FWS), while the Secretary of Commerce, responsible for marine and anadromous species, has delegated the power to the National Marine Fisheries Service.(12) The ESA defines the term "species" to include subspecies of fish or wildlife or plants, and distinct population segments of vertebrate fish or wildlife, that interbreed when mature.(13) Endangered species are those in danger of extinction throughout all or a significant portion of their range, while threatened species are those likely to become endangered in the near future.(14) Species eligible for listing include all plants, mammals, fish, birds, amphibians, reptiles, mollusks, crustaceans, arthropods, or other invertebrates.(15) Section 4 precludes any consideration of economic factors when determining whether or not a species should be listed as threatened or endangered.(16)

    Labeled "Interagency Cooperation," section 7 commands federal agencies not to take any action that might harm a listed species. Specifically, it directs all federal agencies to consult with the Secretary to ensure that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species."(17) Originally twelve lines long, this section has since expanded to several pages, beginning with a series of amendments starting in 1978.(18) The power of section 7 came not from amendments, however, but from the judiciary. In Tennessee Valley Authority v. Hill,(19) decided in 1978, the U.S. Supreme Court interpreted section 7 as an absolute bar against any federal action that might jeopardize a listed species.(20) The Court's decision in that case halted the completion of Tellico Dam on the Little Tennessee River to protect the endangered snail darter, a small fish.(21)

    Section 9 prohibits the taking of endangered species.(22) The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(23) In 1975 the Secretary of the Interior promulgated a regulation interpreting "harm" to include activities that result in "significant environmental modification or degradation."(24) Under this definition, the ESA may limit land use activities on private property that might indirectly harm a listed species, making the ESA "perhaps the most powerful regulatory provision in all of environmental law."(25) The courts consistently have upheld this broad interpretation of section 9.(26)

    The ESA's very strength, however, threatens its future. Some critics claim that while the ESA was "[o]nce lauded as the salvation of the bald eagle and the grizzly bear, the law often thwarts individuals and businesses from using their property in order to protect little-known birds, rodents, and insects."(27) In 1995 the newly elected conservative Congress pledged to "rethink, not repair" environmental laws.(28) Newt Gingrich (R-Ga.), Speaker of the House at that time, said that it made little sense to spend money on species protection because extinction is "the way life is."(29) That same year, Congress succeeded in placing a temporary moratorium on ESA listings.(30) Since the spotted owl controversy in the early 1990s, Congress has deadlocked over the Act, and attempts to weaken it by amendment have failed.(31) Nevertheless, the fate of the ESA remains uncertain.

    This Note, however, does not analyze the current debate over the ESA or propose ways to improve the Act. Instead, it examines the Act's past, particularly its legislative history, in an attempt to demonstrate what Congress intended when it passed the Act in 1973. This Note concludes that the Act has had unanticipated consequences. Specifically, it argues that Congress did not intend to pass a law that would protect seemingly insignificant species irrespective of economic considerations, halt federal development projects, and regulate private property. Instead, most in Congress believed the Act to be a largely symbolic effort to protect charismatic megafauna representative of our national heritage, like bald eagles, bison, and grizzly bears. Congress believed it could accomplish this simply by preventing the direct killing of endangered species and by halting the international trade in such species.

    But if this was the case, then how did the ESA eventually become one of the most powerful and controversial of environmental laws? There are two reasons. First, Congress and the affected economic interest groups simply lacked the foresight to anticipate how environmental groups might use the relatively plain language found in sections 4 and 7 to force the listing of obscure species without economic consideration and to halt federal development projects. Second, scientific developments after 1973, especially the popularization of ecology and the emergence of the idea of biodiversity, led scientists and environmentalists to a more expansive interpretation of what it meant to "take" a species under section 9 and to "jeopardize" a species under section 7. These developments in scientific understanding transformed section 9 from essentially a ban on hunting to a powerful provision for the regulation of land use, and justified the rigorous application of section 7 to save critical habitat. In 1973 it would have been difficult, if not impossible, for Congress to anticipate such a fundamental change in circumstances.

    Despite its conclusions, this Note does not argue that the ESA should be weakened or repealed. Nor does it advocate that the courts should adhere to the original intent of the legislators who enacted the ESA. Instead, it merely attempts to provide a historical context for discussion about the future of endangered species policy. This story of unanticipated consequences, while not new, typifies much legislation, and Congress should occasionally be reminded of it. Finally, this Note will demonstrate the important role that Congress, the administration, and the courts played in shaping the modern environmental movement.

  2. PROTECTING SPECIES BEFORE THE ESA

    1. Saving Individual Species

      Prior to the twentieth century, the federal government played a minor role in wildlife management. It limited its efforts primarily to the conservation of natural resources that lay outside of state jurisdictions. For example, in 1868 Congress passed a law prohibiting the killing of certain furbearing animals in the territory of Alaska.(32) Three years later, it created the Office of the U.S. Commissioner of Fish and Fisheries to conserve fisheries along the coasts and navigable waterways.(33) Congress also took indirect steps to secure wildlife habitat when it passed the Forest Reserve Act of 1891,(34) which authorized the President to establish national forests out of the public domain to protect timber, water, and wildlife resources from overexploitation.(35) However, the various states assumed the primary responsibility for protecting wildlife during the nineteenth century.

      Whether regulation originated from the states or the federal government, the economic logic of conservation motivated early efforts to protect wildlife. Conservationists like President Theodore Roosevelt and the first Chief of the U.S. Forest Service, Gifford Pinchot, believed that natural resources needed to be managed for sustainable use so as to provide the greatest good to the greatest number of people over time.(36) Conservationists turned to practical sciences, like...

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