The Endangered Species Act: time for a new approach?

• Author: Kubasek, Nancy K.
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. INTRODUCTION

   The enactment of the Endangered Species Act of 1973 (ESA),(1) according to the United States Supreme Court reflected "a conscious decision by Congress to give endangered species priority over the |primary missions' of federal agencies" and to prevent the destruction of such species "whatever the cost."(2) Since its passage, however, the ESA has become the center of bitter debate among environmentalists, farmers, resource users, and landowners. The ESA's most ardent supporters characterize the ESA as "the strongest legislation ever devised for the protection of nonhuman species"(3) and an "environmental jewel."(4) Its fiercest opponents revile the ESA as the product of extremists who put wilderness protection and the rights of endangered animals before the welfare of humans.(5) Almost everyone agrees, however, that the ESA can be improved, and in 1994, the reauthorization of the ESA will be in the forefront of the congressional agenda.(6) This article considers some of the potential reforms by examining four approaches contained in the bills contending to become the cornerstone for reauthorization.

   Section Il begins by explaining the basic provisions of the ESA. Section III details some of the criticisms surrounding the ESA. Section IV then describes the various bills and offers a critique of their various strengths and weaknesses. The final section suggests a direction Congress should follow in reauthorizing the ESA.

2. THE OPERATION OF THE ESA

   Having a basic understanding of the ESA is essential to evaluating the proposals for its reauthorization.(7) The fundamental purpose of the ESA is to protect species from extinction and conserve the ecosystems on which they depend.(8) The ESA's triggering mechanism is the listing process(9) which classifies at-risk species into one of two categories: threatened(10) or endangered.(11) The listing process also includes designation of "critical habitat"(12) and development and implementation of recovery plans.(13) Once a species has been listed, the ESA prohibits any taking, possession, or sale of that species.(14) Additionally, federal agencies must ensure that their actions do not "jeopardize the continued existence of any endangered or threatened species" or adversely affect critical habitat.(15) The ESA provides only a limited exemption process for federal projects that jeopardize a listed species.(16)

   A. Listing of Species

   The Secretary of the Interior, acting through the Fish and Wildlife Service (FWS), handles listings for all terrestrial species, and the Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS), lists marine species.(17) A species is listed as "endangered" when the Secretary finds that the species is "in danger of extinction throughout all or a significant part of its range."(18) The Secretary lists a species as "threatened" when it is likely to become endangered in the foreseeable future.(19) Finally, a species may be treated as an endangered or threatened species, even though it is not listed, based on its similarity to a listed species.(20)

   Listing of a species may be initiated by the agency itself or by a private party.(21) When a private party petitions for a species to be listed, the appropriate agency has ninety days to determine whether the petitioners have presented "substantial information" to support listing, and if so, the agency has a year to decide how and when it will proceed.(22) Within one year following publication of the proposed regulation, the Secretary must promulgate a rule, request a one-time only six-month extension, or publish a notice of withdrawal of the proposed rule.(23)

   In determining whether to list a species as threatened or endangered, the Secretary may consider only five statutory criteria:

   (1) the present or threatened destruction, modification,

   or curtailment of its range or habitat;

   (2) overutilization for commercial, recreational, scientific,

   or educational purposes;

   (3) disease or predation;

   (4) the inadequacy of existing regulatory mechanisms; or

   (5) other natural or manmade factors affecting its continued

   existence.(24)

   The Secretary may not consider economic impacts of the listing; rather, his decision must be founded "solely on the basis of the best scientific and commercial data available."(25)

   B. Critical Habitat

   Unless impossible or imprudent, the Secretary must also designate critical habitat for each endangered or threatened species(26) In determining critical habitat, the Secretary examines an area for features essential to the species' survival such as food, shelter, and breeding.(27) Designation of critical habitat must be based upon the "best scientific data available," but unlike the listing determination, the Secretary must also consider economic impacts.(28) However, if failure to designate critical habitat will result in extinction, then a critical habitat designation must be made despite economic considerations.(29)

   The final rule designating the critical habitat of an endangered species should be promulgated with the final rule listing the species.(30) However, if it is not possible to determine the critical habitat within that time frame, the Secretary may have one additional year to designate critical habitat.(31) The final designation must includes a description of the designated area and an evaluation of any public or private activities that might destroy or adversely modify the critical habitat.(32)

   C. Recovery Plans

   In addition to designation of critical habitat, the Secretary must develop and implement recovery plans for the "conservation and survival" of the listed species "unless he finds that such a plan will not promote conservation of the species."(33) The Secretary must establish a priority list for developing recovery plans, giving top priority to those species most likely to benefit from the listing.(34) Recovery plans are technical, scientific documents prepared by public and private sector biologists that identify the specific steps needed to conserve and recover a species. Recovery teams, usually composed of parties from state and federal agencies as well as the private sector, carry out the recovery plans.(35) As of February 1994, four hundred recovery plans had been approved and were in place.(36)

   D. The Takings Prohibition

   The ESA prohibits the taking of endangered species.(37) The ESA broadly defines "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."(38) Agency regulations further define "harm" to include "significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(39) "Harass" encompasses "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns."(40) The takings prohibitions may also be extended to threatened species if the Secretary finds such protections are needed to conserve the species.(41)

   E. Federal Agency Obligations

   Federal agencies must ensure that their activities are "not likely to jeopardize the continued existence of any endangered species or threatened species" or adversely affect critical habitat.(42) Before undertaking an action, the agency must ask the Secretary whether any listed species or critical habitat may be found in the proposed action area.(43) If the action area contains any listed species or critical habitat, the acting agency must prepare a biological assessment identifying any listed species likely to be affected by the action.(44) The biological assessment contains a list of species in the action area, a review of biological or botanical material, the results of a field inspection, and sometimes statements of experts in the field.(45)

   If the biological assessment reveals that a species is likely to be affected, the agency must formally consult with the Secretary.(46) Following consultation the Secretary must issue a biological opinion detailing whether the proposed agency action would jeopardize the species or critical habitat.(47) If the agency action would put the species in jeopardy of extinction, the biological opinion will contain a listing of "reasonable and prudent alternatives" to the proposed agency action that the Secretary feels would not jeopardize the species while allowing the project to proceed.(48)

   Ultimate responsibility for insuring that the action does not jeopardize a listed species lies with the acting agency; it may accept or reject the advice of the consulting agency.(49) The acting agency need not follow the recommendations in the biological opinion as long as the agency takes "alternative, reasonably adequate steps to insure the continued existence" of listed species.(50) However, the agency must use the "best scientific and commercial data available" in whatever decision it ultimately makes;(51) therefore, before straying from the suggestions of the biological opinion, the agency should have some reliable basis for its action.

   F. Exemptions

   If a proposed agency action will jeopardize a listed species, the agency, license applicant, or governor of the affected state may seek an exemption from the Endangered Species Committee.(52) Endangered Species Committee consists of the Secretaries of Agriculture, Interior, and the Army; the Chair of the Council of Economic Advisors; the Administrators of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration; and a seventh member chosen by the President from the affected state.(53) To grant the exemption, at least five of the seven members must find that no reasonable and prudent alternatives exist; the action's benefits clearly outweigh the benefits of any alternatives; the action is in the public interest; the action is of national or regional significance; and the applicant has not taken steps...