Noah's Choice: The Future of Endangered Species.

• Author: Carr, Donald A.

In Noah's Choice: The Future of Endangered Species, Charles Mann and Mark Plummer question many of the assumptions underlying our recent species protection efforts, bringing a fresh, critical perspective to the endangered species debate. The goals and accomplishments of the Endangered Species Act (ESA) are analyzed with an emphasis on the range of costs and benefits. Noah's Choice provocatively articulates the ethical and philosophical tensions between societal development and presentation of biological diversity. This Review focuses on the significance of Noah's Choice to the current ESA reform debate.

1. INTRODUCTION

   A band of the staunchest defenders of the Endangered Species Act of 1973 (ESA)(1) have withdrawn to a modem Alamo. For them, there is a line as sharp as the one Travis's sword carved in the ground of the mission at Bexar. Is U.S. wildlife conservation policy fundamentally committed at all costs to saving each genetically unique life form and distinct population segments, or not?

   From the embattled perspective of many environmentalists, the ESA is both the crown jewel and the last redoubt. The environmentalists' sense of siege is heightened by what they perceive to be assaults on every front against the conservation regimes built in the last quarter century. They are convinced that there is rock-solid public support for environmental protections and that they will be vindicated in a backlash against the onslaughts of the hard right even if (perhaps especially if) the walls of this statute are temporarily breached. They are banking, more than a little uneasily, on a presidential veto strategy for the contingency that majorities in the House and Senate might hear the electorate differently and pass amendments seriously weakening the current law's protections.(2) Whether conservationists can count on President Clinton is conjectural in view of his shrinking from a veto of the bill containing the so-called "timber salvage" provision.(3) Many of them consider that action treasonous and a bad sign of weakness or attenuated dedication to green ideals.

   The attack on the ESA is mounted by forces as fiercely committed as the nationalists of 1836 who tried to oust the Texians from their land. They have justifiable grievances and are too often vilified. They advocate property rights and the pursuit of mainstream aspirations for jobs, development, and prosperity. Unabashed in their advocacy of people's interests where they conflict with obscure beetles, beach mice, and pearly mussels, or even relatively more "charismatic" red-cockaded woodpeckers, spotted owls, and bald eagles, they see this as a campaign to end a tyranny of ecological correctness.

   Right now, this piece of the political turf is in the balance, to paraphrase the title and theme of Vice President Al Gore's popular, if seldom seriously scrutinized, polemic on the environment as the "central organizing principle" of civilization.(4) Environmentalists regard the legislative prospects as ominous, because in March 1995 there were more than sixty votes in the Senate for a six-month moratorium on all new species listings and critical habitat designations tacked onto the Supplemental Defense Appropriations Act, which the President signed.(5) In May, Senators Slade Gorton (R-Wash.) and Bennett Johnston (D-La.) introduced a bill with a seductively simple premise: the Secretary of the Department of Interior (DOI) should have discretion to develop "conservation objectives" short of full recovery for listed species, subject to citizen suit challenge only in very limited circumstances.(6) This is intended to change all the political and economic dynamics of the ESA and to institutionalize diminished protections for some species.(7) It removes the Secretary's "cover"--the ability to ascribe species-first considerations to the dictate of Congress.(8) DOI Secretary Bruce Babbitt immediately called it worse than a complete repeal of the Act,(9) perhaps because it puts him and his successors on the spot for political, nonscientific decisions. Mr. Babbitt and the conservation community regard the Young-Pombo House bill(10) introduced September 7, 1995 as even more objectionable, with its procedures for compensating private landowners and its relaxation of protections related to federal lands and federal permits.(11)

2. WHO SHOULD BE RESPONSIBLE FOR HABITAT PRESERVATION ON PRIVATE LAND?

   There are many controversial facets of ESA reauthorization,(12) but among the most intensely debated is the longstanding interpretation of the Fish and Wildlife Service (FWS) that to get an injunction or to prevail in civil or criminal enforcement, it does not have to demonstrate that an individual of a listed species is actually "kill[ed], injure[d], wound[ed] ... harass[ed]" or otherwise "harm[ed]."(13) Instead, DOI asserts that all it must show is that the activity changes the habitat unfavorably and ultimately results in species loss.(14) The central issue is, thus, who is responsible for species decline attributable to diminished foraging, roosting, wintering, breeding habitat, or the like. Is it the burden of adjacent landowners or those who have property with suitable characteristics within a species' historic range? Or should it be the broader public? Both the Gorton Johnston and Young-Pombo bills would redefine harm to exclude habitat modification as such, covering only "direct action against [a] member of an endangered species."(15)

   In one sense, environmentalists dodged a bullet with the Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(16) in which private owners of Pacific Northwest forest contested FWS authority to stop logging in the vicinity of spotted owl nests on the ground that alteration of habitat amounts to "harm" and therefore a "take" prohibited by section 9 of the Act.(17) The Court, while acknowledging that respondents had "advanced strong arguments that activities that cause minimal or unforeseeable harm will not violate the Act," rejected their challenge as overbroad.(18) Following its celebrated snail darter precedent,(19) the Court held that there are clearly some circumstances in which the Secretary's habitat-preserving interpretation of "harm" and "take" is consistent with Congress's intent in the 1973 Act and its 1982 amendments.(20) This somewhat abstruse point is at the heart of FWS's leverage to ban or impose severe mitigation conditions on activities indirectly injurious to individuals of listed species through alterations of their surroundings.

   The environmental community and the Clinton Administration quickly proclaimed the ratification of their jurisprudential stand against a reactionary political tide.(21) They touted a double victory(22) with the National Research Council (NRC) report that the ESA is generally soundly based in science and specifically so in "reflect[ing] the current understanding of the crucial biological role habitat plays for species."(23)

   Obviously, the conservationists' position is appreciably improved with these two wins. Conservationists would have suffered a serious setback if the Court had ruled that even the existing law, passed in the heady first days after the Big Bang of pro-environmental sentiment, did not...