STATE IMPERILED SPECIES LEGISLATION.

• Author: Fischman, Robert L.

1. INTRODUCTION 82 II. COOPERATIVE FEDERALISM AND 84 EXTINCTION PREVENTION III. THE THREE REGULATORY 89 PILLARS OF THE ESA IV. METHOD AND CODING 95 V. RESULTS 97 A. Domains of Protection 98 and Recovery Plans B. Interagency Consultation 105 C. Prohibited Acts and Permits 108 VI. DISCUSSION 116 VII. CONCLUSION 123 I. INTRODUCTION

   The Endangered Species Act (1) (ESA) may well be the most contentious of the federal environmental statutes. It certainly is the most controversial of the conservation laws outside the purview of the United States Environmental Protection Agency (EPA). Yet, in congressional hearing after congressional hearing, one consensus rises above the rancor. All parties agree that states should play a greater role in preventing extinctions. (2) Immense conservation benefits would accrue from more active state programs designed to arrest the decline of rare species or to recover endangered species. Alas, potential benefits are seldom realized because neither state treasuries nor the federal appropriations provide sufficient resources for conservation actions. But, suppose Congress decided to transfer the federal endangered species budget to states through block grants. (3) Would that prove more effective than the current approach? Putting aside the political and implementation uncertainties over how effectively states would spend new monies, this Article shows that there is another hurdle to greater delegation of responsibility to prevent extinction: weak state legislation.

   We reviewed legislation relevant to recovery of imperiled species for all fifty states. Most states adopt the argot of the ESA, which refers to species on the brink of extinction as "endangered" and those with a somewhat lower risk of disappearing as "threatened." But other states define the words differently or employ alternative terminology. Therefore, we use the term "imperiled" to refer generally to species identified as needing special protections to avoid extinction. The ESA defines "conservation" to mean the use of methods "necessary to bring any endangered species or threatened species to the point at which the measures provided [by the Act] are no longer necessary." (4) In this sense, conservation is synonymous with recovery. Conservation and recovery are modest goals intended to move the very most imperiled species out of the legislative, emergency-room treatments of the ESA. They do not imply that a species has regained most of its habitat or historic abundance. When the term "conservation" is used in other contexts, it has a broader meaning that generally promises more abundant and healthy wildlife. (5)

   Part II of this Article constructs the cooperative federalism framework for understanding current debates about ESA reform. The ESA authorizes cooperative agreements, which serve as a conduit for federal grants to help states conduct conservation actions that aid federal efforts to recover species. Other environmental law programs present a more varied toolbox of state incentives that offer options for better promoting effective cooperation to prevent extinctions. Part III describes the three regulatory pillars of the ESA that account for the most species protections: interagency coordination, prohibitions, and permits. Part IV details our method of coding legislation to compare state imperiled species law with the ESA.

   Part V presents our results. We found legislative programs designed to recover imperiled animals in all but four states. Two states protect only species on the ESA list, and thirty-nine states automatically include ESA-listed species among their longer imperiled species lists. Thirty-four states legislate imperiled plant protection programs. Of the twenty-four states that require periodic administrative updates to the status of listed species, twenty require status reviews every five years or more frequently. Only three state laws require preparation of species-specific recovery plans. Eleven state legislative codes require interagency cooperation to ensure that state agencies do not take actions to jeopardize state-listed species. Most state wildlife legal regimes ban trafficking and purposeful actions to kill, capture, or injure an imperiled species. However, only two state statutes clearly prohibit habitat degradation that is incidental to some otherwise legal activity, such as farming. (6) Nonetheless, seven state laws provide for incidental take permits, indicating a somewhat broader scope of prohibitions (as administered) than is apparent from the face of the statutes.

   Part VI discusses how our results relate to the current debates over ESA reauthorization. Compared to the key regulatory programs of the ESA that prompt stakeholders to collaborate on conservation, state laws, in general, reflect a more permissive attitude. Though state laws, in the aggregate, only weakly support cooperative federalism, some state legislative provisions are very strong. State programs in Illinois, Massachusetts, and Wisconsin even go beyond the ESA in their protective measures. They offer helpful models for other states seeking to improve the effectiveness of their imperiled species laws. However, we cannot speak to actual administration of the programs, in practice. We conclude with broader observations about how to make the ESA-reform debate more constructive and responsive to the consensus that state conservation programs are essential to preventing extinctions.

2. COOPERATIVE FEDERALISM AND EXTINCTION PREVENTION

   Cooperative federalism has framed U.S. environmental law for the past half century. (7) It is most closely associated with EPA, which relies on state personnel to permit and enforce programs that advance objectives under federal pollution-control statutes. (8) But the natural resources side of environmental law also harnesses cooperative federalism. (9) The ESA expressly addresses cooperative federalism in section 6, which requires the relevant cabinet officials to cooperate with states "to the maximum extent practicable." (10) This reflects a common, deferential formulation of savings clauses for state authority in federal natural resources statutes. (11) Section 6 authorizes cooperative agreements between federal agencies and states only to recover species already listed under the ESA. (12) The ESA does not expressly authorize agreements with or grants to states to protect declining species in order to stave off federal listing. Instead, a separate federal grant program provides states with funding to undertake actions focused on preventing imperilment. (13) States with federally approved state wildlife action plans (SWAPs) are eligible for this preventive funding. (14)

   States have complained for decades about implementation of the section 6 cooperative agreements program. Many states would interpret the self-contradicting text of section 6 to prohibit federal preemption of state programs weaker than federal law. (15) Though there is support for that view in the legislative history, (16) courts have rejected the antipreemption arguments. (17) The result is cooperative agreements that "demand very little from the states and offer the same in return." (18) Most of the agreements relate to listing, monitoring, and voluntary conservation programs. (19) Congress has increased section 6 funding in the past quarter century, from 1% of the United States Fish and Wildlife Service (FWS) budget in 1990 ($6.7 million), (20) to 3% in 2000 ($26.9 million), (21) and to 3.5% in 2017 ($53.5 million). (22) That funding offers ample incentive to induce most states to enter into agreements. (23) A state receiving cooperative funds must surmount the low bar of showing that it has enacted authority to conserve resident species, has established acceptable conservation programs, possesses authority to conduct investigations to determine the status of animal species, and provides for public participation in designating species as imperiled. (24) It must also match a portion of the costs of projects funded. (25) State spending constitutes about 5% of total ESA appropriations. (26)

   Appropriations still fall far short of the estimated costs of preventing extinction, however. The total costs of recovering the 1,661 ESA-listed species in the United States is unknown. (27) But one can derive recovery costs for those 1,159 species with recovery plans. The plans identify costs of $1.21 billion/year. (28) Currently, FWS tallies spending of federal and state governments together for endangered species protection between one and two billion dollars annually. (29) However, that includes funding all aspects of the program, including listing, which is not directly tied to recovering already listed species. (30) Nearly all of that money goes to staff salaries and operations, not directly to recovery efforts. (31) A peer-reviewed study of the budget indicated that Congress funds less than 25% of the aggregate annual recovery plan costs. (32) The budget outlook for the foreseeable future remains austere.

   Since 1994, the United States Department of the Interior's FWS and the Department of Commerce's National Marine Fisheries Service (NMFS) (collectively, the Services) policy on section 6 cooperation has emphasized the states' role in preventing listing by alleviating threats to declining species." Pursuant to the policy, the Services enter into candidate conservation agreements with states and other stakeholders to apply conservation measures to a particular species, which are then considered in listing decisions. (34) Most rare and declining species are not on the very brink of extinction. (35) The SWAPs required for states to be eligible for federal nongame conservation grants have identified over 12,000 species of greatest conservation need (SGCN), which are generally declining in range or population. (36) The SGCNs include ESA-listed species as well as rare and declining species that might be eligible for listing if the...