Insect conservation under the Endangered Species Act.

• Author: Lugo, Ezequiel

ABSTRACT

While the rate of extinction is the same for insects and other animals, insects are underrepresented in the Fish and Wildlife Service's list of threatened or endangered species. Insect conservationists have argued that the Endangered Species Act and the Fish and Wildlife Service are biased against insects, despite the importance of insects in our lives. The reality, however, is that there is only minimal bias inherent in the provisions of the Endangered Species Act or in regulations promulgated by the Fish and Wildlife Service. The main cause of the low number of insect species listed under the Endangered Species Act is a lack of qualified biologists to file and review listing petitions. Until sufficient information about insect conservation is available, petitioners could use surrogate species to protect threatened or endangered insect species.

1. INTRODUCTION II. PROTECTION OF THREATENED AND ENDANGERED SPECIES A. The Problem of Extinction B. The Endangered Species Act of 1973 1. Purposes of the ESA 2. Statutory Protections 3. What Is an Endangered or Threatened Species? III. THE LISTING PROCESS AND ITS EFFECT ON INSECT CONSERVATION A. The Petition B. The Review 1. Listing Criteria 2. Listing Priority Guidelines 3. Best Scientific and Commercial Data Available IV. IMPROVING INSECT CONSERVATION A. Increased Scientific Knowledge B. Ecological Significance as a Listing Priority Criterion C. Surrogate Species V. CONCLUSION I. INTRODUCTION

   Most people are oblivious to the indispensable role insects play in our lives. The disappearance of insects would mean the loss of a vital food source without which most reptiles, mammals, amphibians, and birds would die. (1) Flowering plants, which cover most of the land surface, would be unable to survive without insects facilitating their reproduction and providing favorable soil conditions. (2) The surface of the earth would be covered with dead vegetation and animals, and would sustain only wind-pollinated plants and very little animal life. (3) Humans would not last more than a couple of months in an insect-less environment?

   Insects also provide valuable services for free. A recent study has valued the ecological services insects provide within the United States at $57 billion. (5) The study focused on services provided by wild native insects in the areas of dung burial, pest control, pollination, and wildlife nutrition. (6) Dung burial services provided by a single species, dung beetles, are valued at $380 million. (7) Insect parasites and predators provide $4.5 billion worth of pest control services for our crops. (8) Insect pollinators, mostly bees, are responsible for approximately $3.07 billion of American crops. (9) Wildlife nutrition provided by insects resulted in $49.93 billion worth of hunting, fishing, and bird watching. (10) While these figures are significant, they vastly underestimate the economic value of insects for human society. (11)

   Insects are also the undisputed winners of the game of survival in the history of this planet. The first insects appeared approximately 400 million years ago and since then have managed to inhabit almost all land and aquatic habitats, and have acquired flight. (12) Today, insect species greatly outnumber all other animal species and make up over half of all organisms identified by man. (13) Another five to eight million more insect species are thought to exist, but have not been discovered or identified. (14) Careful bioprospecting (15) of this incredible insect biodiversity could yield valuable genetic and chemical raw materials that could be used to create new transgenic strains of plants and animals or the next round of cutting-edge pharmaceuticals. (16)

   Yet insect biodiversity faces the same ecological threats as all other biodiversity. (17) Scientists agree that human activities have led to an increased rate of extinction worldwide. (18) While no one knows exactly how many species exist and a definite rate of extinction is impossible to calculate, (19) the consensus is that current rates of extinction are between 1,000 to 10,000 times greater than the rate before human activities significantly affected the environment. (20) This increase in the rate of extinction is so dramatic that some biologists believe we are currently experiencing a mass extinction that will lead to the disappearance of most organisms worldwide. (21)

   A recent empirical study suggests that the rate of extinction of insects is comparable to the rate of extinction of plants and vertebrates. (22) Insect species might even be more prone to extinction than vertebrates because their short lifespan and small size make them more vulnerable to environmental changes. (23) Their inconspicuous habitats, abundance in tropical areas, and behavioral characteristics also increase their vulnerability. (24) For example, some insect species swarm while feeding or mating, concentrating most of their members in a particular habitat. (25) If this habitat is converted to a recreational area, the lack of access to food or mates might lead to the disappearance of the entire species. (26)

   The Endangered Species Act (ESA) (27) has the potential to mitigate or eliminate the impact of habitat change on insect species. (28) The Supreme Court recognized that "[t]he plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." (29) The conservation of species on the brink of extinction is listed as one of the stated purposes in the ESA. (30) Congress was concerned about the extinction of any species (31) and, unlike earlier conservation legislation, (32) the ESA extends its protection to insects and other invertebrates. (33) The agency charged with implementing the ESA, the Fish & Wildlife Service (FWS), has honored this congressional intent and currently recognizes forty-nine insects as endangered or threatened. (34)

   However, insect conservationists have argued that the ESA and the FWS are biased against insects in the development of recovery plans and the amount of money spent for insect conservation as opposed to vertebrate conservation. (35) But the most striking type of bias against insects described by critics of the ESA and the FWS involves the listing decisions required for legal protection. (36) While the rate of extinction is the same for insects and other animals and insects make up over 50% of all known species, (37) less than 3% of all species listed by the FWS as threatened or endangered are insect species. (38) The ESA and the FWS appear to favor more popular species over insects, (39) despite insects' ecological, economical, and evolutionary significance.

   However, as this Article shows, the dearth of insects listed under the ESA owes more to a lack of scientific data on insect species, other than butterflies and beetles, than to biases in the listing provisions of the ESA or the regulatory mechanisms developed by the FWS. Part II of this Article describes the general framework of the ESA, including relevant definitions and protections afforded to qualifying species. Part III focuses on the statutory and regulatory aspects of listing decisions and their effects on insect conservation. Part IV concludes that any problems in listing insects under the ESA can be corrected by improving scientific knowledge, considering a species' ecological significance when making listing decisions, and using surrogate species to protect areas inhabited by insects and threatened by habitat destruction.

2. PROTECTION OF THREATENED AND ENDANGERED SPECIES

   1. The Problem of Extinction

      For most of Earth's history, extinction (40) has been a generally slow process, proceeding at a pace of one species per million each year. (41) Human activity has increased the rate of extinction exponentially. (42) As humanity's habitat spread from Africa and the Middle East, it faced few organisms able to resist its expansion, with the result that humanity drove many native species to extinction. (43) This trend continues today with habitat destruction, invasive species, pollution, population growth, and overharvesting as the main human forces driving extinction. (44)

      To illustrate, the interplay of these forces led to a dramatic decrease in the American bison population from 25 million to just 86 in the late 1800s. (45) Expansion and settlement onto the Great Plains encroached on the bison's native habitat and brought domestic livestock that competed with the bison for pasture. (46) Bison were hunted for food, for sport, and to meet increased demand for leather machine belts made from bison hides. (47) Congress recognized extinction of the bison as a national problem because bison were migratory animals that roamed through several states, making state regulation difficult. However, Congress ultimately decided not to protect the bison, reasoning that extinction was the inevitable price of Manifest Destiny and that preserving bison would worsen the "Indian problem." (48)

      The near-extinction of the bison was followed by threats to migratory birds, bears, and bald eagles. (49) The national response to these threats was a patchwork of ad hoc statutes protecting individual groups of animals rather than comprehensive legislation. (50) It wasn't until the national environmental movement of the 1960s that comprehensive conservation legislation was enacted. (51) However, these early attempts at comprehensive conservation legislation were flawed because they concentrated on vertebrates, especially species representative of the national heritage, (52) or provided insufficient protection for species on the verge of extinction. (53)

   2. The Endangered Species Act of 1973

      When the ESA was enacted in 1973, it was the most comprehensive legislation for the conservation of species in danger of becoming extinct ever enacted. (54) The ESA was based on congressional findings that various American species had become extinct due to human...