Teeth for a paper tiger: redressing the deficiencies of the recovery provisions of the Endangered Species Act.

• Author: Helmy, Eric

Congress passed the Endangered Species Act (ESA) with the purpose of recovering species from the threat of extinction. Almost thirty years later, the ESA has not produced the anticipated results. This Comment discusses the failure of section 4 of the ESA to promote species recovery and the environmental consequences of this failure. In addition, it provides solutions, both legislative and judicial, to remedy the ESA and promote species recovery.

1. INTRODUCTION

   The federal Endangered Species Act (ESA)(1) has long been a powerful weapon in the arsenal of species protection,(2) but has never lived up to its full potential. Despite the potency of its prohibitions,(3) the ESA has borne disappointment for conservationists because very few species have come back from the brink of extinction on its watch.(4) The ESA's failure to effect recovery is critical because populations cannot persist indefinitely at depleted levels without suffering greater probability of extinction.(5) Because depleted populations face poor odds of long-term survival, the ESA is an inadequate conservation tool if it cannot affect recovery.

   The ESA's species recovery provisions in section 4(f)(6) are inadequate as written and implemented. These provisions charge the Secretaries of the Interior and of Commerce (collectively, "the Secretary") to develop and implement recovery plans for listed species.(7) However, the Secretary need not do so if he finds that a recovery plan would not promote the conservation of a species.(8) In developing and implementing recovery plans, the Secretary must give priority to those endangered or threatened species most likely to benefit from such plans.(9) Each plan must also incorporate "estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal."(10)

   Unlike the more familiar section 9 "takings"(11) and section 7 "jeopardy"(12) provisions of the ESA, the section 4 species recovery provisions suffer from two critical problems. Under section 4(0, the Secretary does not have to make or follow deadlines for the promulgation and implementation of. recovery plans.(13) Additionally, the Secretary cannot be compelled to implement recovery plans under section 4(f).(14) These defects, which this Comment respectively refers to as the "temporal accountability deficiency" and the "enforceability deficit," render section 4(f) a paper tiger by limiting its ability to affect species recovery. However, there are ways to give teeth to the proverbial section 4(f) paper tiger. This Comment will examine the defects of section 4(f), reveal their inadequacies from ecological and legal perspectives, and illustrate solutions that may correct or circumvent these problems in order to promote the recovery of threatened and endangered species.

2. THE DEFICIENCIES OF SECTION 4 AND THEIR SOLUTIONS

   The two major defects of section 4(f) stem from judicial precedent(15) and deferential statutory language.(16) As a result of these defects, threatened and endangered species may have increased odds of extinction while interminably awaiting the benefits of recovery plans.(17) However, Congress, federal agencies, and practitioners can employ creative solutions in order to improve the species' odds of survival.

   1. The Temporal Accountability Deficiency

      No deadlines govern the Secretary's duties to promulgate and implement recovery plan.(18) This lack of accountability poses considerable risks to depleted populations, which suffer disproportionately from the effects of selective pressures over time.(19) The resulting decreased likelihood of survivability demonstrates that the current recovery provisions fail to fulfill congressional demands for the recovery of threatened and endangered species.(20) Legislative amendments may curtail the Secretary's discretion to implement recovery plans and promote compliance with congressional intent.

      1. The Current State of the Law: The Temporal Accountability Deficiency Defined

         The Secretary's duty to prioritize his allocation of recovery planning resources lies at the heart of the first major defect of section 4(f).(21) Congress included this duty in section 4(f) because it recognized that the Secretary would need "broad discretion to allocate scarce resources to those species that he or she determines would most likely benefit from development of a recovery plan."(22) Congress was wise to enact such a deferential provision, because the Secretary possesses special institutional competence to determine the relative needs of endangered species.(23) Nevertheless, the Secretary's discretion is excessively broad. The absence of timetables for species recovery defines the temporal accountability deficiency--the Secretary is not required to promulgate or implement recovery plans by any specific date.(24)

      2. Why the Temporal Accountability Deficiency is Problematic

         The Secretary's lack of temporal accountability may forestall species recovery indefinitely.(25) Such delay is inherently dangerous to already depleted populations, which suffer disproportionately severe impacts from the action of selective forces over time.(26) These impacts reduce a species' odds of survival,(27) contravening Congress's intent to recover and delist species.(28)

         1. The Need for Recovery--Selective Forces, Time, and the Ecology of Extinction

            The Secretary's great temporal latitude in the promulgation and implementation of recovery plans(29) according to a priority system(30) may have unfortunate consequences for threatened and endangered species. While these species await recovery, time provides ample opportunity for selective forces to decimate their numbers.(31) By demonstrating the indispensable role that recovery plays in conservation, simple ecological analysis illustrates how time compromises the survival of small populations. Depleted populations--including those of species listed as endangered or threatened--are subject to acute effects from selective pressures(32) because of genetic impoverishment and compromised age structure.(33) Long periods of population depletion further impede a species's chances of survival because degrees of genetic variance change over time and leave the species vulnerable to additional pressures.(34) These general principles illustrate the futility and ecological insufficiency of a statute that aims to "halt and reverse the trend toward species extinction"(35) but fails to effect recovery. A greater vulnerability to selective pressures over time dictates that depleted species face mounting odds of extinction.

            The Act recognizes that selective pressures may deleteriously impact listed species over time, illustrating the gravity of section 4(f)'s failure to recover threatened and endangered species. Section 4(a) lists several factors the Secretary must consider in determining whether a species should be listed.(36) These factors reflect selective pressures that impact the likely survivability of listed species. The mounting impacts of such pressures over time(37) dictate that the longer a species remains listed, the more that species becomes imperiled, and the further the Secretary's ability to legitimately delist that species diminishes.

            Consideration of ecological realities pertaining to section 4(a)'s first factor illustrates the gravity of the Act's failure to recover species. That factor concerns "the present or threatened destruction, modification, or curtailment of [a species's] habitat or range."(38) At hearings preceding the ESA's enactment in 1973, commentators expressed concern over the widespread and escalating destruction of natural ecosystems upon which endangered species depend. The Assistant Secretary for Fish and Wildlife testified:

            [M]an and his technology has [sic] continued at an ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period.(39) The "ever-increasing rate" of habitat destruction does not bode well for the recovery of endangered species, especially in the absence of promptly implemented recovery plans.(40)

            A recent rise in disease among wildlife illustrates the importance of threatened and endangered species recovery.(41) Peter Daszak of the University of Georgia has documented an increase in infectious diseases among wild animals, largely due to the forced changes in diet, crowded living conditions, and the release of new pathogens attendant to habitat destruction.(42) Daszak noted that this problem, termed "pathogenic pollution," can destroy local populations of animals and even lead to the total extinction of a species.(43) Other studies confirm Daszak's finding that. human interference is causing increased pathogenic susceptibility among wildlife. Western fence lizards in the Western United States have suffered increased incidence of infection by the malarial parasite Plasmodium.(44) This affliction coincided with endocrinological interference in males.(45) Prudence demands accountability for timely recovery plan implementation in the face of listed species' potential exposure to such an increasing and generalized selective pressure as disease.

            Notable among the selective pressures that the final listing factor may encompass are myriad and largely unknown physiological effects of pollution that may pose a severe threat to the continued existence of some non-recovering threatened and endangered species.(46) Because of their action at fundamental biochemical levels, some pollutants are likely to have substantial adverse impacts on reproduction in diverse groups of organisms.(47) Dr. Louis Guillette, Jr., a Professor of Zoology at the University of Florida, conducted extensive research that demonstrates...