Endangered species' slippery slope back to the states: existing regulatory mechanisms and ongoing conservation efforts under the Endangered Species Act.

• Author: Cassidy, Kevin

1. INTRODUCTION

   On December 29, 2000, Endangered Species Act (ESA or Act) (1) supporters collectively winced when President-elect George W. Bush nominated Gale Norton to succeed Bruce Babbitt as the Secretary of the Interior. (2) After all, Norton argued before the United States Supreme Court that parts of the ESA were unconstitutional (3) and was a well-known supporter of private property rights movements, (4) a faction often at odds with the ESA. (5) Despite Norton's assurances to Congress during her confirmation hearings that, as Secretary, she would enforce the ESA, (6) it appeared that a weakening of the Act was inevitable.

   Ironically, Norton may try to reduce the scope of the ESA by adopting and implementing a policy developed by her predecessors. In June 2000, under the Clinton-Babbitt administration, the United States Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively "listing agencies") proposed a joint draft policy that would permit the Secretary (7) to avoid listing biologically imperiled species under the ESA if state and local conservation efforts to protect those species existed or were planned. (8) If adopted, the proposed policy would formalize a longstanding agency practice of deferring to state and local conservation efforts--even if those efforts are unimplemented, unproven, or voluntary--rather than listing a species under the ESA. (9)

   Both the longstanding agency practice and the more recent draft policy are based on two provisions of the ESA--subsections 4(a)(1)(D) (10) and 4(b)(1)(A). (11) Those provisions require the Secreting, in making a listing determination, to consider both the inadequacy of existing regulatory mechanisms (ERMs) and ongoing conservation efforts. (12) Under the listing agencies' interpretation of the Act, state and local conservation efforts can offset other threats to species, such as modification or destruction of habitat, thus bringing the species below the threshold necessary to warrant a federal listing. (13) Rather than providing a boon to species, state and local conservation efforts have almost universally offered false hopes and half measures. As a result, many species that the listing agencies initially declined to list in reliance on those conservation efforts have ultimately been listed, their populations often worse for the delay. (14) Moreover, many species that desperately need the substantive protections that the federal ESA offers remain unlisted because of this policy. (15)

   Most courts have disagreed with the listing agencies' interpretation of the Act's listing provisions that allows for consideration of future, unimplemented, or voluntary conservation efforts. (16) As a result, several decisions by the listing agencies not to list species in reliance on state and local conservation efforts have been remanded to the agency for reconsideration. (17) It is not surprising that courts disagree with the listing agencies' overly broad interpretation of what constitutes an "ongoing conservation effort" because a careful reading of the statutory language does not support the agencies' position. (18) Other justifications for the listing agencies' broad construction of ongoing conservation efforts include the principle of federalism, which would, return decision-making power to states and localities, (19) and the difficulty of devising national standards for species' protection. (20) However, Congress carefully considered the federalism question when it enacted the ESA? and chose to satisfy the principle by giving states and localities a voice in management decisions only after the listing decision was made. (21) Moreover, the ESA itself sets out national standards for species protection, which states could incorporate into their conservation efforts. (22)

   The Clinton-Babbitt administration viewed this policy as a necessary compromise to protect the ESA. (23) Constantly under siege, the ESA is a favorite target of conservative Republicans who see it as a symbol of an oppressive federal government. (24) States, especially western ones, generally oppose federal ESA listings because they allow the federal government to assume control over what many view as local concerns. (25) Consequently, many ESA supporters felt that in order for the Act to survive Republican attacks the ESA needed to become more flexible in general, and specifically more responsive to state and local concerns. (26) Now in the hands of a Republican administration, the policy may become a tool for further weakening the listing agencies' implementation of the ESA. Regardless of which administration devised the policy and which is implementing it, however, the listing agencies should abandon the policy because it is inconsistent with the language and purpose of the ESA.

   This comment argues that Congress intended the ESA to establish federal floors for the protection of biologically imperiled species. Those floors are embodied in the substantive protections that the ESA affords listed species--take prohibitions, critical habitat designation, jeopardy consultation, recovery plans, and civil and criminal enforcement measures. While the listing agencies must consider ongoing conservation efforts at the time of a proposed listing, those efforts should not be sufficient to preclude a listing of a biologically endangered or threatened species unless they are the equivalent of the substantive protections found in the ESA.

   Part II of this Comment provides a brief history of federal wildlife regulation leading up to the passage of the ESA. Part II also gives an overview of the listing process, analyzes in detail the role that ERMs and "ongoing conservation efforts" play in listing decisions, and concludes that the listing agencies' interpretation and implementation of these factors is inconsistent with the language of the ESA.

   Part III evaluates the listing agencies' draft policy and finds it flawed because it grants the listing agencies too much discretion over how the inadequacy of ERMs and the presence of ongoing conservation efforts factor into listing decisions.

   Part IV considers and rejects the principle of federalism as a justification for the listing agencies' policy of permitting state and local conservation efforts to preclude listing otherwise threatened or endangered species. Part IV argues that Congress considered the federalism question when it passed the ESA and expressly chose a strong federal program in direct response to failed state efforts to protect wildlife. This Part also suggests that state and local conservation efforts might be sufficient to preclude listings if they met the minimum standards of protection required by the ESA for listed species.

   Finally, Part V concludes that, unless states and localities can demonstrate that their conservation efforts are actually effective in halting a species's decline, the standards of protection afforded by the ESA should be the listing agencies' guidepost when evaluating conservation efforts in listing determinations.

2. UNLOCKING THE ESA: THE LISTING PROCESS IS THE KEY

   The ESA has polarized the debate about species and biodiversity preservation since it was enacted in 1973. (27) Supporters of the law triumph the success of the bald eagle and the gray whale--symbolic species rescued from the abyss of extinction by the ESA's intervention. (28) Detractors of the Act invariably recall the snail darter and the gnatcatcher--obscure species, the attempted recovery of which cost taxpayers millions of dollars and delayed federal projects and private development. (29) There is little middle ground on the ESA.

   This Part briefly explores the ESA's roots, in an effort to better understand Congress's motivation for passing such sweeping and, ultimately, controversial legislation. Recognizing that the ESA's substantive protections are triggered only when a species is listed as threatened or endangered, the focus is on the Act's listing provision, section 4. This Part also evaluates the critical role that existing regulatory mechanisms and ongoing conservation efforts play in the listing process, and determines that the listing agencies' broad interpretation of these statutory terms, which permits them to deny listings in reliance on state conservation efforts, contravenes congressional intent by abdicating federal responsibility for species preservation.

   1. A Brief History of Federal Wildlife Regulation Prior to the ESA

      The early 1970s witnessed an explosion of federal environmental legislation as the nation finally began to come to grips with smog, contaminated water, degraded ecosystems, and disappearing species. (30) While most people could appreciate the need for clean air and water and the dangers of hazardous waste, species' extinctions and habitat destruction were further removed from the general public's everyday lives. However, charismatic mega-fauna, (31) such as the bald eagle, proved to be powerful symbols that resonated clearly with an increasingly vocal and political wildlife preservationist constituency. (32) In 1973, the ESA was overwhelmingly enacted (33)--an Act later hailed as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." (34)

      In many ways, the ESA was a culmination of almost a century of gradual transfer of wildlife management authority and responsibility from the states to the federal government. (35) Starting soon after the Supreme Court established the baseline doctrine of "state ownership" of wildlife in Geer v. Connecticut (36) in 1896, the federal government began to assert various constitutional powers that enabled it to regulate wildlife. Initially, Congress exercised its Commerce Clause power to assist in enforcing state game laws. (37) By 1912, however, when the federal government attempted to regulate wildlife directly by prohibiting the taking of sponges off the coast of Florida, (38) the Supreme Court...