Reflections on the Endangered Species Act.

• Author: Houck, Oliver A.
• Position: Symposium on Clinton's New Land Policies

1. Reflections on the Presume: Habitat Protection

   1. Habitat Protection and the Phenomenon of Species Extinction

      The diversity of life on earth is nearly beyond human imagination. The baseline number of living organisms is unknown, even to the nearest order of magnitude.(1) About 1.4 million species have been identified to date, and the actual number of species may range as high as 100 million.(2) Already, the mind swims.

      The extinction rate for these species is nearly as unimaginable. Recent estimates suggest that as many as twenty percent of the Earth's life forms may be extinguished in the next that years,(3) a date that is not exactly receding into the distance. One study projects that two-thirds of all plant life and more than two-thirds of all bird species will disappear from the Amazon River Basin during this brief time.(4) Harvard biologist Edward O. Wilson estimates the worldwide rate of loss from tropical rainforest destruction at fifty thousand species a year, one hundred-thirty-seven a day, or six every hour.(5) Wilson's estimates are based only on habitat loss and do not account for further endangerment from other causes such as the introduction of exotic (nonnative) species and pollution.(6)

      The phenomenon of extinction in the United States, while slowed and in some cases reversed,(7) continues despite the passage of the Endangered Species Act (ESA)(8). Less than one thousand species are currently listed as threatened or endangered under the ESA.(9) Nearly four thousand are formally identified as candidates,(10) although the number of legitimate candidates may be closer to ten thousand.(11) In Hawaii alone, seven avian species are known to have disappeared since 1963, five of them since 1980.(12) For a nation optimistic about quick, technological solutions, this is unwelcome news.

      The most unwelcome news of all, however, is the emerging confirmation of a basic premise of the ESA: its focus on habitat protection.(13) A recent review of all endangered species listings in the Federal Register identified habitat loss as a primary cause of endangerment in eighty percent of the cases.(14) Habitat destruction is the leading cause of extinction and endangerment in North American freshwater fisheries.(15) The correlation is linear,(16) as is the everyday-before-your-eyes correlation between habitat loss and human development.(17) The unhappy fact is that species extermination at the rate currently taking place does not result from natural forces, evolution, or the planet Mars. In the words of the philosopher Pogo, "we have met the enemy, and he is us."(18) It is the ESA's lot to have forced this meeting.

   2. The Effects of Habitat Protection on Public

      and Private Development

      The current level of rhetoric surrounding the ESA exceeds anything this author has witnessed in the brief history of environmental law.(19) The Act has been variously characterized as the "pit bull of environmental law"(20) and, by no less than then-President George Bush, "a sword aimed at the jobs, families and communities of entire regions."(21) Stories surround the ESA like those found at dockside in the days of sailing ships - stories of sea monsters that wrecked ships on the reefs with fatal songs and then attacked their crews. Problematically, few sailors could be found who actually witnessed these events. The stories of those who claimed to be witnesses turned out to be something less on closer examination. So it is with the ESA.

      Section 7 of the ESA prohibits federal agencies from jeopardizing endangered species.22 In the past five years, the U.S. Fish and Wildlife Service (USFWS) has conducted nearly 100,000 section 7 consultations with federal agencies over actions that could jeopardize listed Species.(23) Of these, nearly 95,000 were conducted informally and quickly, often by telephone, and resulted in no project delay or modification.(24) Of the 2,719 formal consultations, 2,367 resulted in "no jeopardy" opinions, allowing the projects to go forward as planned.(25) Of the 352 "jeopardy" opinions, 126 related to only two proposals (for a group of pesticide approvals and a group of timber sales).(26) At bottom, only fifty-four projects were identified as terminated in the five-year period,(27) many of which were permits for additional marinas along manatee-occupied waters in Florida.(28) Thus, in the past five years, 100,000 consultations have resulted in jeopardy opinions exactly .054 percent of the time.(29)

      The facts on section 7 consultations do not stop here. A review of these bottom-line, "pit bull" jeopardy findings reveals that the great majority of them allowed projects to go forward with only minimal harm-avoiding conditions, such as "don't dredge while the eagles are nesting," speed limit signs in manatee waters, and a wider median strip in a federal highway routed through wolf habitat to enable wolves to pause safely while crossing.(30) In practice, the ESA is a statute of accommodations.

      Section 9 prohibits the taking of endangered species by any person.(31) Section 10 allows the same taking under permit, after consultation and habitat conservation planning.(32) The effects of these provisions on minimizing harm to endangered species from private actions are more difficult to assess. Section 10 has resulted in only a few dozen actual or even proposed habitat conservation plans.(33) While this planning is by all evidence as contentious, tedious, and unpleasant as any zoning or land use plan that tries to accommodate multiple public and private interests,(34) it has hardly been pandemic. Like the mythical monsters of the sea, the reaction to sections 9 and 10 is more a fear-of-the-unknown response to the unstructured, discretionary nature of the habitat planning process.(35)

      Whether sections 9 and 10 will continue to apply to private-party habitat modifications that jeopardize endangered species is, at the time of this writing, very much at issue.(36) It is a matter of objective fact, however, that nearly two-thirds of the United States is privately owned(37) and that more than fifty percent of listed species are exclusively found on private lands.(38) Attempting to save endangered species without modifying development of private lands is an oxymoron. Reasonable people may disagree over the means and mechanisms. Sound proposals for improved mechanisms do exist and are currently on the table.(39) But nothing is more mythical than the idea of an ESA that does not lead to significant, harm-avoiding planning for private lands.

2. Reflections on the Controversy: Why is There So Much Fuss?

   Anyone looking at the rising rate of extinction and the program to reverse it which has led more to minor development modifications than to injunctions might wonder why the ESA should have caused the legislative backlash currently underway.(40) The answer could be, of course, "the will of the people, speaking through their elected representatives, but that answer would still beg the question. A fuller answer is that endangered species requirements for both federal and private actions are running up against the most sacred cows on the American landscape, cows that are up to their flanks in subsidies and shielded by other myths about human beings and the natural world. Legislators react promptly to threats to subsidized constituencies, be they cattle ranchers or senior citizens, and their myths.

   1. The Federal Hand

      Early ESA litigation involved individual federal projects that, while controversial, only affected relatively small, local areas(41) and did not significantly impact federal programs and their beneficiaries as a whole.(42) More recently, the ESA has arrived at the underlying problem that entire federal programs are being administered in a way that continues to push species toward endangerment and extinction. Foremost of these cases in the public mind are those challenging the practice of clearcutting Pacific old-growth forests, habitat for the northern spotted owl.(43) Similar litigation is pending over the operation of hydroelectric dams on the Snake and Columbia Rivers in the Pacific Northwest, which threaten many salmon species;(44) whatever outcome emerges, it will include more water for salmon and less low-cost electricity for the aluminum industry, the hydroelectric system's chief beneficiary.(45) The Environmental Protection Agency (EPA), with an ESA suit looming, has issued water quality criteria for endangered fish in the Sacramento River delta that will change irrigation practices and require water conservation in the Sacramento Valley.(46) Federal grazing plans are being revised to protect riparian habitats of endangered birds and burrows of the threatened Mojave Desert tortoise.(47) In Texas, the U.S. Forest Service is scaling back timber harvests to accommodate the red-cockaded woodpecker.(48) None of these practices - clearcutting, grazing, irrigation, or power production - are arrested or even seriously impacted on a national level by the ESA. The ESA does impact locally, however, and runs afoul of enormous federal incentives that cut exactly the opposite way, cutting into question the programs themselves and the federal monies they provide.

      The extent of these monies is difficult to appreciate, but such appreciation is nonetheless...