The embattled social utilities of the Endangered Species Act - a Noah presumption and caution against putting gasmasks on the canaries in the coalmine.

• Author: Plater, Zygmunt J.B.
• Position: Symposium on Habitat Conservation Plans

The militant environmentalist movement in America today is a new homosocialism, communism. What these people are is against private property nights. They are trying to attack capitalism and corporate America in the form of going after timber companies. And they're trying to say that we must preserve these virgin trees because the spotted owl and the rat kangaroo and whatever five in them, and it's the only place they can five; the snail darter and whatever it is.(1)

1. Introduction

   The Endangered Species Act (ESA)(2)--which always seems to be a lightning rod for politics, passions, and philosophizing--is once again poised at the brink of what could become an illuminating national debate. The Act's congressional reauthorization process is likely to provide the first major indicator of what the 105th Congress will or won't do to environmental law generally.(3) The competing congressional bills provide a variety of alternatives for strengthening or eroding endangered species protections. Responding to the property rights movement, the 1982 Habitat Conservation Plan (HCP) Amendments to the Act(4) offer a case study in the pressures upon a statutory structure to mutate. In this case, the Act's standards were shifted (depending upon your viewpoint) from crudity to fine-tuned sophistication, or from clear enforceable standards to wishy-washy subjective, politically-variable agency discretion. Ultimately, the upcoming national debates on protecting endangered species, if they are thoughtful, may also serve as an occasion to explore some fundamental underpinnings of environmental law itself.

   From the turbulent past and present of the ESA, this essay offers some reminders for the impending battles over the Act. It attempts to distill some useful lessons from the classic extreme example of the Tenesee Tellico Dam/snail darter case,(5) and asserts that endangered species protections often fulfill a basic and embattled civic function: the `canary-in-the-coalmine' social indicator role. This role adds an important utilitarian purpose to the Act's ethical and aesthetic benefits, and provides a strategic backdrop to the promises and the perils of HCPs.

   Below are some interconnected propositions.

   * The Endangered Species Act continues to be one of the most embattled and vulnerable federal environment statutes, besieged by the dynamic pressures of marketplace politics and economics, in part because it is primarily justified and explained in limited terms of aesthetic and ethical social norms, not utilitarian human benefits.

   * If one analyzes endangered species protections--as the God Committee did with the snail darter(6)--in many, if not all, cases the Act will be seen to also represent tangible important human social and economic utilities, relevant even for those who discount moral and aesthetic reasons for preserving endangered species. The ESA fulfills an important but little-recognized utilitarian civic function that goes far beyond aesthetics, ethics, and morals--the strategic social indicator function of the canary in the coal mine.

   * Amendments for incorporating regulatory balances into the ESA, like incidental take review and permitting processes, HCPs, and other second generation proposals for modifying the statutory prohibitions of the Act, depending on how they are crafted, can incorporate and secure the important philosophical and practical utilities of the Endangered Species Act, or eviscerate them.

   * Given the array of good but subtle reasons for protecting endangered species, public values that are typically not readily marketable and that provoke a bitter marketplace backlash, we should adopt a Noah Presumption, a strong presumption in favor of protecting all endangered species, rather clan a dismissive Noah's Choice,(7) unless human necessities clearly outweigh the importance of doing so. Negotiating narrowly-conceived minimal protections for species is like designing gas masks for our canaries, and given the inexorable pressures of modem administrative politics such gas masks are quite likely to leak.

2. THE ESA: An Environmental Statue with Special Vulnerabilities

   All regulation imposes costs on society; we regulate nevertheless despite the cost because of countervailing net social benefits. Marketplace forces, which often are most directly impacted by such regulation,(8) naturally and forcefully fight back the hardest, using their power and vast resources to resist the implementation of civic values unprofitable to them. If net social benefits continue to be politically credible, however, the regulatory systems must survive and evolve. Over the past twenty years it is remarkable how public and private establishments have ultimately adjusted to most federal environmental statutes.

   Today's arguments over habitat conservation plans (HCPs) are part of a drastic reassessment process being applied, quite uniquely it seems, to the Endangered Species Act (ESA). The ESA apparently acts as a special societal lightning rod,(9) with statutory functions and a political setting that seem to be more subtle, more controversial, and less secure than for other major environmental statutes. Is the ESA so much more embattled than other federal environmental statutes? Consider the course of modern federal environmental legislation. A noisy parade of statutes marched into federal law in the 1970s, particularly during the Nixon administration from 1969 to 1974.(10) Each of these federal laws was born in controversy and bitterly resented by the players who were forced to accommodate to the newly-enforceable civic values the statutes embodied. For most of those statutes, however, particularly the pollution and toxics laws, the market has accepted and adjusted to their permanent existence.

   With only occasional exceptions, the marketplace has generally come to accept the validity and permanence of pollution and toxics laws. The ongoing evolution of federal environmental statutes reflects a number of interesting trends: away from command-and-control and design standards and towards performance standards; away from end-of-the-pipe solutions and towards prevention, planning, and pre-treatment; away from agency policing of facilities and towards stakeholder participation, self-certification, self-auditing, standards of due diligence, and safe harbors. These trends reflect an ability to adopt market-coordinated approaches because of the solid, if grudging, market acceptance of the statutes' basic goals and enforcement. The powerful players of the marketplace do not attempt to overthrow the basic system of protection. A rare exception, where a market coalition tried to overthrow basic Clean Water Act protections in the 104th Contract of America Congress's House Resolution 961,(11) came to naught when the media woke up to what was dubbed the "Dirty Water Bill" and brought it to public attention.(12)

   The ESA is different. Though ESA proposals echo the trends toward stakeholder participation, incentives, and the like, they do not seem to share the same strong premises of accomplishing statutory goals that one finds in the pollution statutes.(13) Only the ESA is still regularly subjected to plenary denunciations on the floor of Congress; only the ESA faces serious non-reauthorization initiatives; only the ESA was hit by a sweeping one year listing moratorium.(14) It was a high profile ESA case, the spotted owl, that got hit by the so called Timber Salvage rider cynically attached to the Oklahoma bombing relief bill(15) It is the ESA that has sustained amendments undermining its fundamental goal, species recovery; and if things go awry, it is the ESA that could be reamed instead of reinforced by the HCP strategy.

   Why is it that the ESA suffers from this particular precariousness? There, of course, are many possible distinctions. The institutional setting for the Act might have some relevance.(16) Or it might be that the implementation of the ESA has been particularly heavy-handed or illogical so as to arouse a particularly persistent market backlash or to prevent the formation of a particularly broad constituency.(17) Or the difference might be that the ESA came to be a federal regulatory regime almost by happenstance.(18) Or perhaps the Act is considered a more emotive, abstract piece of legislation.(19) The original images in the minds of members of Congress, as well as the public, probably were indeed as Sen. Howard Baker (R-Tenn.) said(17) protection of "warm fuzzy" creatures against the relatively marginal interests of poachers and merchants trading in violation of the Convention on International Trade in Endangered Species (CITES).(20)

   Pollution and toxics statutes have come to be accepted by agencies and industry, I suspect, primarily because their direct human utility is intrinsically obvious to public opinion. Behind most of these statutes is the perceptible reality of direct threats to human health and safety.(21) One doesn't have to understand complex science to know that humans, adults, children, and babies are directly at risk if the water they drink and bathe with is contaminated with toxic substances. That fundamental perception rallies the defense of such statutes when marketplace lobbyists attempt to nibble or chop away at those regulatory systems.(22) The classic false tradeoff, a choice between environmental protection and a healthy economy, is rebutted by media and public recognition of pollution and toxics as vivid public health hazards, and the machineries of politics and government have fallen into line.(23)

   The societal rationale for endangered species conservation, on the other hand, is generally characterized in terms of philosophy, emotions, and aesthetics,(24) often regarded as heartfelt but not so substantially significant when weighed against the practical world of production, payrolls, and profits. Occasionally a wistful utilitarian reason for species protection is trumpeted by ESA defenders--the...