A Recovery Plan for the Endangered Species Act

• Date: 01 January 2009
• Author: Donald C. Baur, Michael J. Bean, and Wm. Robert Irvin

39 ELR 10006 ENVIRONMENTAL LAW REPORT ER 1-2009

A R T I C L E S

A Recovery Plan

for the

Endangered

Species Act

by Donald C. Baur, Michael J. Bean,

and Wm. Robert Irvin

Donald Baur is a Partner and chair of the environmental

and natural resources practice in the Washington, D.C.,

off‌ice of Perkins Coie. Michael Bean has directed the

Wildlife Program of Environmental Defense Fund since

1977. Wm. Robert Irvin is Senior Vice President for

Conservation Programs at Defenders of Wildlife.

Editors’ Summary:

Efforts to reauthorize the ESA have been uniformly

unsuccessful since the current authorization expired in

1992. Here are f‌ive steps the newly elected Adminis-

tration can take to build a stronger and more effective

ESA, even without reauthorization: (1) revitalize the list-

ing priority framework; (2) promote recovery; (3) enhance

incentives for habitat conservation on nonfederal lands;

(4) address priority issues related to ESA §7(a)(2) con-

sultation process and its prohibitions on jeopardy to spe-

cies or adverse modif‌ication of critical habitat; and (5)

increase funding for ESA implementation. By pursuing

these administrative steps, President-elect Barak Obama

can lay the groundwork for the eventual reauthorization

of the ESA and a new commitment to conserving endan-

gered species.

In the essay “Wilderness,” Aldo Leopold wrote: “Relegat-

ing grizzlies to Alaska is about like relegating happiness

to heaven; one may never get there.”1 He could have just

as easily been describing the long-stalled effort to reauthorize

and amend the Endangered Species Act (ESA)2: two decades

after the law was last reauthorized, many question whether we

will ever “get there.”

Efforts to reauthorize the ESA, either under the banner of

strengthening it or reforming it, have been uniformly unsuc-

cessful since the current authorization expired in 1992. Bipar-

tisan efforts, such as a 1997 bill cosponsored by then-Sen.

Dirk Kempthorne (R-Idaho), Sen. Max Baucus (D-Mont.), Sen.

Harry Reid (D-Nev.), and the late Sen. John Chafee (R-R.I.),

failed to pass the Senate.3 The only reauthorization bill to pass

the U.S. House of Representatives, a 2005 bill sponsored by

Rep. Richard Pombo (R-Cal.), was so controversial that the

U.S. Senate declined to consider it.4

With proponents of strengt hening and reforming the ESA

each having the political wherewithal to block the other’s

efforts, reauthorization has been stymied. Nevertheless,

progress has been made in some areas of ESA implemen-

tation, particularly with regard to enhancing incentives for

the conservation of endangered species on nonfederal lands.

Other areas have suffered, however. Backlogs in listing spe-

cies, designating critical habitat, adequately funding and

staff‌ing ESA implementation, responding to cour t decisions

f‌inding fault with regulations implementing the ESA, and

making species recovery the focus of ESA implementation all

require attention.

While each of these needs could be addressed through con-

gressional action, it is not a prerequisite to doing so. Moreover,

as the authors of this Article can attest, there is much common

ground on which the newly elected Administration of Barack

Obama can build a stronger and more effective ESA program,

even without reauthorization.

In the sections below, we discuss f‌ive such areas: (1) revital-

izing the listing priority framework; (2) promoting recovery; (3)

enhancing incentives for habitat conservation on nonfederal

lands; (4) addressing priority issues related to the ESA §7(a)(2)

consultation process and its prohibitions on jeopardy to spe-

cies or adverse modif‌ication of critical habitat; and (5) increas-

ing funding for ESA implementation.

Certainly, there are more dramatic steps that could be

taken to implement the ESA either more a ggressively to pro-

tect species or with less impact on resource development

activities. The recommendations in this Ar ticle do not lean

in either direction. Rather, we believe these proposals could

greatly improve species conservation without imposing signif‌i-

1. Aldo Leopold, Wilderness for Wildlife, in A SAND COUNTY ALMANAC WITH ESSAYS

ON CONSERVATION FROM ROUND RIVER 277 (Oxford Univ. Press 1966).

2. 16 U.S.C. §§1531-1544, ELR Stat. ESA §§2-18.

3. S. 1180, 105th Cong. (1997).

4. H.R. 3824, 109th Cong. (2005).