Rethinking the ESA to Reflect Human Dominion Over Nature
| Date | 01 August 2010 |
| Author |
8-2010 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 40 ELR 10803
A R T I C L E
Rethinking the ESA to Reflect
Human Dominion Over Nature
by Katrina Miriam Wyman
Katrina M. Wyman is a professor at New York University School of Law.
My basic critique of the Endangered Species Act (the
ESA)1 is that it is built on an untenable premise
that there is something natural—whether called
species, ecosystems, or biodiversity—out there that we can
save from humanity’s reach. e Act’s problems ultimately
are rooted in a denial of the extent of huma n domination
of nature and a failure to recognize our limited ability to
halt and reverse the decline of species, ecosystems, a nd bio-
diversity given our pervasive impact on the planet. e ESA’s
mixed track record in helping species, the overburdened list-
ing process, the poor targeting of the limited public funding
for species recovery, and the debate about how much we are
spending on species all reect the triumph of human inter-
ests over the interests of species. e central contemporary
challenge in protecting biodiversity is recognizing the vast
scale of human impacts and the consequent need to prioritize
our protection eorts given limited resources.
Today, policy-oriented scientists and legal academics who
acknowledge our impact on the earth are discussing two
main approaches for mana ging biodiversity: the ecosystem
services paradig m and t he biological hotspots paradigm.2
Both of these approaches oer ways of deciding which
aspects of nature to protect, given the pervasiveness of
human impacts on the eart h and the limited funds available
to safegua rd biodiversity.
e rst of these two strategies for protecting biodiversity,
the ecosystem services paradigm, characterizes biodiversity as
1. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.
2. ese two paradigms are distinguished and discussed in Peter Kareiva & Mi-
chelle Marvier, , S. A., Oct. 2007, at 50, 56.
an ecosystem service whose value to humans should be rec-
ognized. is could be done by assigning biodiversity a value
in policymaking and by having governments and private
actors buy and sell rights to biodiversity protection through
instruments such as conservation easements and ongoing
payments for conservation.3 In 2005, EPA took a step toward
better incorporating the value of ecosystem services such as
biodiversity into policymaking. It created a Science Advi-
sory Board panel to examine how the agency can improve
its valuation of ecosystem services in cost-benet analyses.4
Some eorts also a lready have been made in t he U.S. to pay
for biodiversity protection.5 I am skeptical that recognizing
biodiversity as a valuable service, pricing it in policymak ing,
and buying and selling it through government subsidies and
private payments will be enough to deal with the large-scale
challenge that huma n dominion of the earth represents for
3. Proponents of protecting biodiversity by recognizing it as an ecosystem ser-
vice include Peter Kareiva et al.,
, 316 S 1866 (2007); Kareiva & Marvier,
supra note 2. In addition to biodiversity, some of the most commonly discussed
ecosystem ser vices include air and water purication, ood mitigation, soil
fertility, and pollination. For denitions and lists of ecosystem services, see, e.g.,
J.B. R ., T L P E S 6-7, 23-26
(2007); James Salzman,
Field, 80 N.Y.U. L. R. 870, 872 (2005).
4. On the panel, see U.S. Environmental Protection Agency, Science Advisory
Board, Committee on Valuing the Protection of Ecological Systems and Ser-
vices (2008), http://yosemite.epa.gov/sab/sabpeople.nsf/WebCommittees/
BOARD (last visited Sept. 16, 2008); see also Salzman, supra note 3, at 907
n.164 (speculating that EPA created the Committee “to help the agency coun-
ter demands from the Oce of Management and Budget that it justify its
regulations through cost-benet analysis”).
Stanford Law School professor Buzz ompson chairs the panel. U.S. Envtl.
Prot. Agency, Science Advisory Board, Committee on Valuing the Protection
of Ecological Systems and Services, Biosketches (2008), http://yosemite.epa.
gov/sab/SABPEOPLE.NSF/WebPeople/ompson,%20Jr.Barton%20H.%
20(Buzz)?OpenDocument (last visited Sept. 16, 2008).
5. For example, the Conservation Reserve Program (CRP) has been made some-
what environmentally sensitive. See, e.g., D W, I-
B C: A E E A-
57 (2006) (“e Conservation Reserve Program is the largest federal
resource conservation program in terms of the number of participants and pro-
gram expenditures.”); R ., supra note 3, at 192 (“Over its twenty year
history, in rural America, the CRP has emerged as the primary vehicle for pro-
viding a range of ecosystem ser vices related to surface water and groundwater
quality, wildlife habitat, recreation, carbon sequestration, and ood mitigation,
among others.”); Salzman, supra note 3, at 892 (describing “the Conservation
Reserve Program” as “one of the largest ecosystem service payment schemes in
the world”).
New York Environmental Law Journal,
17 N.Y.U. E. L.J. 490 (2008), and is reprinted with permission.
Michael Bean and Frank Casey, who generously met with me when I
people who disagree vehemently with the essay.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
To continue reading
Request your trial