Section 7(a) (1) of the "new" Endangered Species Act: rediscovering and redefining the untapped power of federal agencies' duty to conserve species.

• Author: Ruhl, J.B.

1. INTRODUCTION

   On September 27, 1994, twelve federal agencies joined with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) in a Memorandum of Understanding (MOU) to confirm the agencies' "common goal of conserving species listed as threatened or endangered under the [Endangered Species Act] by protecting and managing their populations and the ecosystems upon which those populations depend."(1) The import of that agreement should not be underestimated. Between them, the fourteen MOU signatories are responsible for the management of almost six hundred million surface acres, hundreds of reservoir areas, and thousands of miles of river and stream corridors.(2) They implement dozens of federal environmental laws, applicable to both public and private entities, on both federal and nonfederal lands.(3) Their administrative programs form no less than the core of federal environmental law and policy. This Article explores the legal and policy significance of the agencies' decision to confirm and channel their species conservation efforts together through the MOU and, more broadly, through the duty imposed on federal agencies by the Endangered Species Act (ESA)(4) to conserve endangered and threatened species. Because the ESA itself is the subject of intense legislative reform efforts in the current Congress,(5) this Article also explores the impact those reform initiatives would have on administrative efforts to awaken the latent power of section 7(a)(1) of the ESA--the sleeping giant of the ESA programs.

   Through the MOU, the federal agencies have signaled a new era of environmental policy by finding a lost zone of species protection law--the duty under section 7(a)(1) of the ESA to conserve threatened and endangered species.(6) That section directs that all federal agencies "shall, in consultation with and with the assistance of [FWS and NMFS], utnize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered species and threatened species ...."(7) Its closest ESA sibling, section 2(c)(1), "declare[s] . . . the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of [the ESAJ."(8) Conservation under the ESA means "to use and the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary."(9) Those simple-sounding words have left small footprints on law and policy since the ESA was first enacted in 1973.

   As the sparse case law has hinted, but never fulfilled, section 7(a)(1)'s species conservation duty has the potential to eclipse all other ESA programs. Agencies and environmental advocacy groups have largely ignored the provision's potential as a tool for species protection policy. Federal agencies have seldom invoked section 7(a)(1), using it only when it could serve as a convenient shield to defend other program actions under the pretext of species protection. Advocacy groups have used the provision occasionally, as a sword to counter government actions alleged to be adverse to species conservation. This history leaves wide open the question of the extent to which section 7(a)(1), as its words suggest, imposes any duties on agencies to act on behalf of species conservation independent of their other primary mission programs. In other words, the use of section 7(a)(1) as a prod to compel agencies to implement policies and programs that promote species conservation has been largely untested.

   Compared to section 7(a)(1), the core programs are brimming with regulatory clout and have been used accordingly to concentrate species protection powers in FWS and NMFS. Those prograrns have inherent limitations that can lead to rigidity, inflexibility, and insensitivity to socioeconomic consequences. As a result, the core programs have suffered and continue to suffer a staggering backlash from proponents of the property rights agenda-10 By contrast, section 7(a)(1) has survived unscathed since the ESA was enacted in 1973. It has few limitations and unlimited flexibility, thus presenting an opportunity to FWS and NMFS to promote species protection goals without transgressing the new antiregulatory ethic. The breadth and depth of section 7(a)(1)'s duty to conserve may offer flexibility to a federal government that wishes to shape policies of biodiversity conservation and ecosystem management(11) without transgressing the emerging ethics of property rights and wise use.

   The MOU did not come out of nowhere, nor should it be mistaken as being merely symbolic. As noted, Congress, state legislatures, courts, and the media have battered the other ESA regulatory programs used by FWS and NMFS. At the same time, FWS and NMFS have outlined bold new agendas aimed at placing them in the front lines of what, for lack of a better term, is called federal "ecosystem management" policy. Both these trends no doubt have contributed to the agencies' turn to section 7(a)(1) as the vanguard of a new ESA policy. It is not clear from the MOU, however, how far FWS, NMFS, and the other MOU agencies intend to carry section 7(a)(1).

   The MOU suggests at the least that a new emphasis on species conservation is emerging, one that could test section 7(a)(1)'s action-forcing limits. The only construction that fulfills Congress's original legislative vision and harmordzes section 7(a)(1) with the other ESA provisions is that section 7(a)(1) imposes on all federal agencies a duty to initiate program, either within or independent of their primazy missions, which will implement the so-called recovery plans that FWS and NMFS develop under section 4 of the ESA to rescue species from endangered and threatened status. Section 4(f) of the ESA mandates that FWS and NMFS "shall develop and implement plans... for the conservation and survival of endangered species and threatened species ...."(12) While such plans have been developed for most endangered and threatened species, few have been implemented to any significant extent.(13) FWS and NMFS's duty to implement recovery plans and all other federal agencies' duty to conserve species can be made meaningful only by linking the duty to conserve a species to the recovery plans developed for that species. That construction of section 7(a)(1) is fully consistent with the MOU. Therefore, the MOU may allow FWS and NMFS to avoid the beating they have taken over their enforcement of ESA, while still enabling the agencies to participate in an effective ecosystem protection program. However, if it is used in the rigid, coercive manner in which other ESA authorities have been used, the MOU, like those other authorities, may blow up in the agencies' faces.

   Indeed, the ESA universe changed dramatically with the 1994 elections. Whereas it was recently widely posited by ESA devotees, perhaps smugly, that "for the foreseeable future, the ESA is likely to remain in its current form with the possibility of only modest alterations,"(14) a growing bipartisan movement in Congress has made the only viable reform candidates those that change the way the ESA works down to its core. Yet, emerging from that legislative overhaul are themes that lead directly to section 7(a)(1) as a keystone of the new ESA, largely because of its potential breadth, flexibility, and noncoereive approach. If the leading initiatives in Congress prevail, federal agencies, not state, local, and private interests, will be required to take the lead in conservation efforts and will be expected to engage in precisely the type of interagency efforts that the MOU represents. And because the relevant provisions of section 7(a)(1) are left largely untouched by even the most aggressive of reform proposals seen to date, the history of the provision explored in this Article win remain germane, and the framework for efforts such as the MOU will remain intact for the foreseeable future. The MOU, more than anything else, may be a harbinger of what is yet to come under the new ESA, and for the role that the federal agencies' section 7(a)(1) species conservation duty will play in that new world.

   The ESA is at a crossroads like none it has ever faced. FWS and NMFS policies have evolved to take account of the new property rights agenda of those who have the power to change the ESA.(15) All the foundation needed for a new ESA is there, simply in terms of altered administrative policy. Regardless of what happens as the current Congress debates ESA reauthorization, a new ESA is emerging through sheer administrative Will.

   The new ESA is more conscious of ecosystem-wide conservation strategies, rather than single-species preservation efforts. The new ESA is developing innovative partnerships with state and local governments rather than relying on federal coercion through regulation. The new ESA understands that species conservation must provide opportunities to private property owners, rather than private property only providing opportunities for species conservation. These qualities of the new ESA are emerging through administrative reform, spurred on by the threat of legislative overhaw, and they blend perfectly with the qualities of section 7(a)(1). Moreover, because section 7(a)(1) is the one provision of the ESA most likely to be left intact when the legislative reform crusade is over, its history and the scope of the species conservation duty it conveys will be important facets in the future of both the ESA and the broader realm of environmental protection policy.

   This Article presents, in Part II, a comparison of section 7(a)(1) to the other "core" ESA programs, showing that section 7(a)(1) has by comparison tremendous breadth but little substance. Part Ill examines how section 7(a)(1) has been...