INTRODUCTION II. AN OVERVIEW OF THE ESA AND LISTING SPECIES A. In the Beginning: The Evolution of U.S. Endangered Species Legislation and Listing Priorities B. The ESA Listing Process C. Lock, Stock, and Barrel: The Benefits of Getting Past the Velvet Rope III. DOOMED FROM THE START" HISTORY OF A FLAWED AND DAMAGED LISTING SYSTEM A. A Poorly Articulated Directive: Ambiguity and Excessive Discretion 1. This "Best" is Better Than What, Exactly? 2. How Endangered is Endangered? How Threatened is Threatened? 3. That's a Lot of Discretion B. The Fallibilities of Science in Relation to the ESA 1. Science Cannot Determine Policy 2. Nothing is Certain: Deal With It C. Turning Lemons into Lemons: The Sloppy Application of Poor Instructions D. Plenty of Blame to Go Around: The Intense Political Pressures on the Listing Process IV. THERE IS HOPE: SETTING QUANTITATIVE CRITERIA LEADS TO GOOD POLICY, GOOD SCIENCE, AND LESS CONFUSION A. Setting Quantitative Criteria Will Improve and Legitimize the Listing Process B. Quantitative Criteria IS the Best Available Science C. The Scientist-Developed IUCN Listing Criteria: America's Next Top Model? V. WHICH BRANCH MIGHT HAVE THE MOST SWAY? A. The Regulatory Approach B. Statutory Amendment by Congress C. Pressure from the Courts VI. CONCLUSION I
For the animal shall not be measured by man. In a world older and more complete than ours, they move, finished and complete, gifted with extensions of the senses we have lost or never attained, living by voices we shall never hear. They are not brethren, they are not underlings, they are other nations caught with ours in the net of life and time, fellow prisoners of the splendour and travail of the earth. (1)
Most Americans spend the majority of our time in artificial environments of our own making. We live indoors, in a sealed-off land of bug spray, temperature control, and an array of antibacterial products for our hands, dishes, and countertops. We keep our plants alive by providing all of their daily care and allowing them to live in an insect-free environment, then we climb into bed and cuddle up to our furry four-legged companions. We have developed a widely-shared informal hierarchy of life-forms. However, these choices come at our peril because, as comfortable as we have become in our cozy indoor retreats, we still inhabit a larger world whose ability to support life is dependent upon the maintenance of species we may not regard so highly. We depend upon this natural world both for our aesthetic and spiritual enrichment and for our very survival. Our personal preferences are not helpful in selecting species for preservation as they do not correlate with their value to biodiversity. That is why a more objective system is needed, as it forces us to set aside our personal preferences. That is why the system we do have was designed to protect all species equally. In the real world, ecosystems depend upon biodiversity that does not rank species according to how lovable they are to humans. (2)
Congress expressly recognized the disparity between human valuation of species and nature's diverse needs and stated its intent to protect species equally. (3) Just a few years later, in 1973, Congress passed the Endangered Species Act (ESA), (4) intended "to halt and reverse the trend toward species extinction, whatever the cost." (5) This effort came at a crucial time, as species now go extinct at a rate of approximately one-hundred per day, a rate which continues to rise (6) despite already "far exceed[ing] any the world has experienced in the last 65 million years." (7)
Despite Congress' attempt to give us the tools to slow down this rapid loss of biodiversity, we have frittered away that opportunity by bickering over which species we like best and our corresponding willingness to make sacrifices to protect them. The best way to free ourselves from this quagmire is to reduce the flexibility that engenders such frequent controversies. Congress expressed its desire to protect species equally, and several decades later it is getting more and more urgent that we find a way to implement that goal.
As I discuss in greater detail below, the route a species must take to reach the protections of the ESA begins with getting placed on a list of either endangered or threatened species. Congress has described this listing process as "the keystone of the Endangered Species Act." (8) The importance of listing properly becomes obvious when considering the fact that ESA protection is an all-or-nothing game--either you get it or you don't--and the only dividing line is listing. (9) As a prerequisite for the application of any other provision of the Act, listing is the single most important part of the Act.
Our system of listing species, like most others around the world, is based upon a determination of the viability of each species. We engage in population viability analysis to determine the health of a species. That said, the scientific process of population viability analysis needs a set of questions to answer. In other words, what levels of viability are we looking for? Before scientists can determine whether a species fits into a listing category, we must first determine--as a policy matter--what the criteria are for inclusion in that category. As it stands, we have only loose definitions and factors upon which to base these analyses, resulting in an extreme lack of consistency. As will be discussed further below, I propose the use of quantitative criteria for each listing category. Quantitative criteria are numerical thresholds applicable across the board (such as x percentage decline over y years or z generations, x total population remaining, x amount of geographic range, etc.).
Part II of this article provides necessary background information on the listing process. Part III discusses the numerous problems with the listing status quo, which combine to prevent us from meaningfully realizing the expectations Congress had for the listing process. Part IV provides the support for my primary thesis--that we can and should devise quantitative listing criteria-and suggests a superior model from which to work. Finally, Part V considers the various ways to accomplish the goals presented here. The article then concludes with a plea to the new administration to make this change.
AN OVERVIEW OF THE ESA AND LISTING SPECIES
In the Beginning: The Evolution of U.S. Endangered Species Legislation and Listing Priorities
The first U.S. endangered species legislation, the Endangered Species Preservation Act of 1966, (10) was the result of the Department of Interior's effort to obtain funding for an endangered species program after failed attempts to get that funding absent a preservation statute. (11) The 1966 Act required the Secretary of the Interior to list species that were threatened with extinction, (12) in consultation "with various scientific groups having expertise in this field." (13) The Departments of Interior, Agriculture, and Defense were all charged with protecting these species and their habitats. (14)
Next came the Endangered Species Conservation Act of 1969,15 which increased protections for invertebrate species and restrictions on interstate commerce in listed species. (16) The 1969 Act included listing language still in use today, requiring the decisions be based on "the best scientific and commercial data available." (17) The term "commercial data" refers only to data that goes to a species' vulnerability--such as threats from overutilization in commerce--and not to the consideration of economic factors, as Congress later clarified. (18) While the legislative history does not elucidate the meaning of "best scientific data available," a "plausible explanation is that Congress intended through this language to continue the 1966 Act's requirement that Interior seek the input of independent biologists before making listing decisions." (19) If this explanation is true, we must take into account an obvious goal behind this requirement, which was to increase objectivity and consistency in the listing process.
In 1973, the ESA, which was made possible by the enormous political support for environmental ideals at the time, became "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." (20) Among the numerous improvements (from the preservation perspective) were the inclusion of species not yet on the brink of the abyss, (21) protection for plant species, (22) prohibitions of private actions on private land, (23) and a requirement that federal agencies must not jeopardize the continued existence of a protected species. (24) The ESA's 1982 amendments also made a key change to the listing process, adding the word "solely" before the existing language of listing "on the basis of the best scientific and commercial data available," (25) thus creating the somewhat controversial "strictly science mandate." (26) The purpose of this change was to do away with the irrelevant economic impact analyses being conducted by the Reagan administration and require listing determinations to be purely about a species' biological condition. (27)
At several points in the evolution of the ESA, Congress has made it clear that the listing process was intended to move forward as quickly and efficiently as possible. First, in explaining why the 1969 Act did not require the formal Administrative Procedure Act procedures to be followed, Congress stated that "[i]f the full right of hearing and judicial review is granted, the publication of the final list may be delayed for many months--months which may be crucial in determining whether a given species or subspecies will be able to survive." (28) In 1979, concerned with the slow pace of listing that had resulted in only a tiny percentage of listings out of thousands of candidates, (29) Congress established a priority system for considering species for...