Predictions and prescriptions for the Endangered Species Act.

• Jurisdiction: United States
• Date: 22 March 2004
• Author: Fischman, Robert L.
• Published date: 22 March 2004
• Author: Fischman, Robert L.

1. INTRODUCTION II. CANARY IN A COAL MINE: THE ESA AS AN INDICATOR OF ENVIRONMENTAL LAW TRENDS A. The ESA Reflects Resource Management Law 1. Consultation Requirements 2. Take Prohibitions 3. Land Acquisition B. The ESA Reflects Pollution Control Law 1. Citizen Suits 2. Cooperative Federalism 3. Substantive Criteria Through Permitting C. Conclusion III. THE DIRECTOR'S CUT: THREE ALTERNATIVE VIEWS OF THE PAST A. The Fall from Grace B. Onward and Upward C. The Roller Coaster IV. PRESCRIPTIONS FOR ESA RECOVERY A. Funding the Program B. Technology-Based Limitations to Protect Habitat C. Preventive Health Care for Biodiversity V. CONCLUSION I. INTRODUCTION

   The thirtieth anniversary of the enactment of the modern Endangered Species Act (ESA) (1) provides an excellent opportunity to look back and muse about the future of environmental law. There is no magic to the number thirty, whose roundness is a fluke of out base-ten numerical system. (2) But three decades is an adequate time span within which to discern the slow and deep trends in public policy. The ESA bridges the divide between the pollution control and resource management fields of environmental law. Thus, its history, successes, and shortcomings reveal the conjunction, strengths, and weaknesses of both fields.

   Moreover, ESA disputes arise when the fabric of nature wears so thin that it begins to fray. Where degradation occurs steadily and in small increments, it is easy to overlook cumulative harms and continue business as usual. But the triggers of the ESA jolt us out of complacency and invite reconsideration of long-standing practices. (3) As Holly Doremus and Dan Tarlock have meticulously illustrated, the ESA played just such a role in the Klamath Basin, where endangered fishes forced the federal government to shut off irrigation water to farmers. (4) Federal reclamation law, state water law, and federal water quality law an failed to forestall accumulating problems of the basin. Finally, it was the ESA's "no jeopardy" mandate (5) that derailed the status quo and required the irrigation shutdown. This action brought to a head long-simmering problems of unsustainable practices that were impolitic and painful to address.

   Without the ESA to force the issue, the Klamath Basin and its ecology surely would have continued their steady slide toward ruin. As the legal Cassandra, the ESA forces us to confront uncomfortable weaknesses in our environmental stewardship that cut across the entire spectrum of environmental laws. One example discussed in this Article is the almost complete lack of controls on environmental harms associated with agricultural activities. (6)

   Despite its usefulness as a vehicle for exploring the broad issues of environmental law, the anniversary of the ESA presents some limitations. First, though the 1973 law dramatically departed from the limited authorities and mandates of prior legislation, it does not mark the beginning of federal species recovery efforts. Congress enacted its first law focused on endangered species protection in 1966. (7) But even that statute had roots that trace back to the 1900 Lacey Act, (8) which sought to restrict interstate traffic in wildlife contraband that was decimating many species through illegal market hunting. (9)

   Second, the modern ESA did not hatch as a fully developed law in 1973. Significant revisions in 1978, 1982, and 1988 extended and strengthened the framework established in 1973. Moreover, the administrative decisions made in the 1980s and 1990s strongly influenced contemporary implementation.

   However, compared to other environmental laws, the 1973 ESA was novel in its approach and reach. Furthermore, it has resisted persistent calls for major changes in its structure. The ESA serves quite well as a vehicle for examining the development of environmental law. The occasion of its thirtieth anniversary offers an irresistible excuse to suggest changes that are needed to set it, and the larger project of environmental protection, on course for greater effectiveness.

   This Article begins by explaining how the ESA reflects both the resource management and pollution control traditions in environmental law. An evaluation of the ESA indicates more than just the status and trends of a single law. Like the canary in a coal mine, it responds to the legal atmosphere around it. The first Section demonstrates this by describing six key tools employed in the ESA and tracing their origins in other environmental law programs.

   The second Section despairs at the viability of making predictions about the future of any environmental law, with special focus on the ESA. Most predictions made thirty years ago about the future of the ESA proved to be wrong. In addition, there are three inconsistent but equally plausible stories that describe the past thirty years of environmental law history. Therefore, there is little basis upon which to project past trends onto the future.

   The third Section of this Article turns from predictions to prescriptions. More useful than venturing guesses about the future is describing what changes we need to make in order to fulfill the promise of the ESA. The major reforms necessary to maintain and recover species fall into three categories: better funding for the ESA program, technology-based limitations to control habitat degradation, and preventive care for biodiversity.

2. CANARY IN A COAL MINE: THE ESA AS AN INDICATOR OF ENVIRONMENTAL LAW TRENDS

   More than any other environmental law, the ESA manifests the full range of attributes distinguishing the field from other areas of law. Implementation of the ESA has produced a record that mirrors the fate of many approaches to environmental law. Environmentalists often deploy the canary in a coal mine rationale to defend the ESA's unrelenting concern for the survival of all species: Extinction of any one life form is an indication of a weakening in the fabric of nature that might ultimately cause harm to us.

   In another sense, the ESA itself serves as a canary to determine the viability of legal tools designed to achieve the public goals of environmental law. Changes underway in the use of legal mechanisms shared with other laws might signal trends that will soon shape the ESA. Understanding such changes will help in predicting the future direction of endangered species policy.

   The ESA uniquely bridges the gap between the resource management and pollution control fields of environmental law. Though environmental lawyers and commentators generally sort themselves and their subjects into one of these two pigeon holes, they are closely related. Roughly speaking, resource management law controls the use of the environment as a source of valuable goods. It is rooted most directly in the concern for sustainable harvests of renewable products (e.g., timber, fish) and the allocation of nonrenewable treasures (e.g., minerals, wilderness). In contrast, pollution control law restricts the use of the environment as a sink for wastes. It is rooted most directly in public health concerns and problems of contamination. Though both branches of environmental law flourished in the wake of the social changes of the 1960s, both have been concerns of law for centuries. However, the federal government began playing a more active role in resource management much earlier than it did in pollution control, at least in part because of the huge amount of valuable resources it owned.

   This Section describes how the ESA is an unusual hybrid of resource management and pollution control law. It illustrates this by tracing the development of six key tools employed in the ESA. The first three tool types originate in the century-old resource management tradition: consultation requirements, take prohibitions, and land acquisition. The second three tool types are more recent and are associated with the environmentalist reforms of the late 1960s and 1970s: citizen suits, cooperative federalism, and the application of substantive criteria through permitting. Like the well-adapted insects that, among all the animals, do most of nature's work, the ESA moves on six legs. If reforms to the ESA program are to succeed over the next thirty years, all six of these appendages of environmental law will have to operate in concert. An understanding of these six tools is necessary to see the limitations of and the opportunities for the ESA.

   1. The ESA Reflects Resource Management Law

      The aim of the ESA, to prevent extinction, is an extension of the great American wildlife law tradition of conservation. The resource management law roots of the ESA penetrate deeply into nineteenth century legislation responding to unsustainable hunting and trapping. The rise of the Progressive era conservation movement in the 1900s seeking to limit private exploitation of public natural resources led to numerous federal restrictions on what had been regarded as open commons.

      In addition to its conservation objective, the ESA displays its resource management law heritage in its two key provisions. Section 7 of the ESA (10) is an outgrowth of a classic resource management tool: consultation. Section 9 of the ESA (11) borrows the language and approach of the harvest restriction laws originally designed to maintain game and other commercial animal populations at sustainable levels. Finally, though not now at the center of the ESA program, the provision authorizing land acquisition also resonates deeply with resource management law. (12)

      1. Consultation Requirements

         Like the Fish and Wildlife Coordination Act of 1934, (13) the ESA employs interagency consultation as a tool for improving decisions. (14) This common resource management law tool, which achieves its apotheosis in the National Environmental Policy Act (NEPA), (15) has long been used to force agencies to broaden their mission orientation to consider conservation concerns.

         Under the 1934 law, federal permitees or agencies involved in water control or...