The Chronicle of Higher Education

The Chronicle Review

From the issue dated May 2, 2003




Protecting the Endangered Species Act




Of all the federal laws designed to protect the environment, the Endangered Species Act may be the most admired -- and the most reviled. Signed by Richard M. Nixon almost 30 years ago, the act has become the country's most important legal weapon in protecting biodiversity. Its purposes are "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation of such endangered species and threatened species."

The act -- one of the most-powerful national laws to protect endangered species and their habitats -- has been cited as a model for the world. It has also been praised by many scientists who say that, despite disagreements over the act's costs and benefits, it has stimulated a wealth of valuable research on many of the most difficult problems of protecting endangered species.

But it has also become the favorite whipping boy for businesses, developers, home builders, property-rights advocates, off-road enthusiasts, and a host of other interest groups that have felt or claimed to have felt its economic impact. It has been called a threat to economic progress, a plot by "environmental wackos to take your rights away," and an "engine of social change being used by environmental elitists, socialists, and envious urban muggers to destroy rural America."

There's a coalition to reform it, a coalition to abolish it, and a coalition to defend it from groups like the first two coalitions. Debates over its effectiveness and complaints about the burdens it imposes have, since 1992, thwarted efforts to reauthorize it in Congress. It survives because lawmakers have appropriated enough funds each year since then to keep it in force.

The two agencies responsible for administering it -- the U.S. Fish and Wildlife Service for terrestrial and freshwater species, and the National Marine Fisheries Service for marine and anadromous species, such as salmon, that spend most of their adult lives at sea but return to freshwater streams to breed -- have been battered by litigation.

Many of the lawsuits have been aimed at Section 4 of the act, which requires the government to designate "critical habitat" that is essential to the survival of a listed species. Environmental groups charge that the Fish and Wildlife Service has failed to meet required deadlines to designate such habitat for many listed species. Although officials of both the Clinton and the Bush administrations have protested that the critical-habitat requirements are not the most important ways to protect those species and that their agencies' budgets were not big enough to meet the requirements, the courts have generally sided with the environmental groups.

Craig Manson, an assistant secretary of the interior, complained about the "endless" cycle of litigation in testimony before a Senate subcommittee in April. "These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing-program budget." And, he added, the court rulings have "fostered a second round of litigation in which those who fear adverse impacts from critical-habitat designations challenge those designations."

Because of such battles, "we are in a state of paralysis with the law now," says Frank Davis, professor of Environmental Science & Management at the University of California at Santa Barbara. Davis, with colleagues at Columbia University and the University of Idaho, is organizing a thoroughgoing review of the act that will culminate with a meeting in November at Santa Barbara's Bren School of Environmental Science & Management.

He says that the 30th anniversary of the act is an appropriate time to ask, "What are we trying to protect, what have we accomplished, and where do we go from here?" In the context of the contention that has surrounded the law since its inception, those are not innocuous questions nor are they ones with easy, straightforward answers.

For example, proponents and opponents differ sharply on what the law has accomplished, and they use the same statistics to bolster their arguments. As of April, a total of 1,262 species in the United States -- 517 animals and 745 plants -- were listed as threatened or endangered. The list includes some well-known species, like the right whale and the Florida panther, and some that few people have ever heard of, like the Iowa Pleistocene snail and the coastal dunes milkvetch. Since the law was enacted, eight species have been removed from the list.

Critics say that is a paltry number and that the recovery of some of those species -- the brown pelican and the Arctic peregrine falcon, for instance -- should be attributed not to the Endangered Species Act but to the ban on the pesticide DDT, in 1972. Defenders note that in addition to the eight removals, 25 other species are approaching recovery and that some 40 percent of the listed species are stable or improving. At present, decisions on listing 37 other species are pending.

To its defenders, critics of the act are, at best, misguided. In a recent article in the Los Angeles Times, Roger G. Kennedy, director emeritus of the National Museum of American History and former director of the National Park Service, decried efforts to portray the act as putting the interest of endangered species above those of people.

He said that in New Mexico and southern Colorado, where water shortages have brought sharp attacks on efforts to protect endangered fish by maintaining water levels in their native streams, "the problem, in the short term, is one of misuse of water in a dry climate." Politicians, Kennedy said, have been unwilling "to stop that misuse by powerful interests."

"The Endangered Species Act is doing its job," he added. "It is forcing us to look at what we are doing, to set limits to wasteful uses, and to make up our minds as to how a limited water supply should be allocated. All the scapegoating in the world will not restore the Albuquerque aquifer, nor will it bring back drinking water lost to golf courses and alfalfa fields.

"In Albuquerque and in other cities, 30 times more water goes for turf irrigation, including golf courses, street medians, and lawns, than for people to drink. As the supply of water to drink, or to use to put out fires, diminishes, the scapegoaters are prowling about looking to assign blame."

Kennedy's argument sums up the views of defenders of the act: We destroy much of the habitat an endangered species requires and pollute what remains. Then we demonize the species and the law designed to protect it for blocking progress.

But the critics have a point. The law has had an especially unfortunate unintended consequence. It has encouraged landowners to get rid of endangered species or to destroy habitat that might harbor them in order to avoid restrictions on what they can do with their land. They have no incentive to work with the government to protect the species; in fact, they have a wide variety of disincentives.

As Michael L. Rosenzweig, a professor of ecology and evolutionary biology at the University of Arizona, writes, "The Endangered Species Act's relationship to the private landowner is altogether pernicious. Whoever ruins the land for wild creatures goes unscathed and continues to have the unrestricted right to exploit it. Meanwhile, whoever improves the world for a rare species gets punished." A land-owner who attracts an endangered or threatened species by providing appropriate habitat faces restrictions on his ability to use his land, Rosenzweig notes, whereas an owner who fears his land may attract such a species can destroy the habitat at will and face no penalties.

To create incentives for landowners to protect habitat and species, the agencies have developed "safe harbor" agreements under which, if an owner agrees to conduct activities for a specified period of time to encourage the survival of an endangered species, he or she will not face additional restrictions on the use of the land in the future. Under such agreements, Rosenzweig says, "People who do the best they can to heal the land and protect its species will, when they succeed, not be deprived of their right to use it for pleasure or profit."

Like virtually every other aspect of the act, the safe-harbor agreements have drawn criticism from both sides of the debate. Property-rights advocates say they provide too few incentives to landowners; environmentalists say they do not assure permanent protection of habitat.

Those agreements and dozens of other aspects of the act will be part of the review that Santa Barbara's Frank Davis and his colleagues will conduct. The organizers have recruited specialists in biology, conservation, economics, and natural-resource law to prepare detailed analyses of the act's goals, its successes and failures, and its future in protecting diversity in human-dominated landscapes. The results will be reviewed by a group of legislators, policy makers, natural-resource managers, and private landowners.

It is crucial to the success of efforts to protect endangered species, Davis says, to move beyond the agenda-driven approaches of the act's critics and defenders and to come up with realistic, dispassionate ways to analyze how best to accomplish its goals. "What hasn't happened thus far," he adds, "is the bringing together of all the dimensions of science, science policy, and the law," in ways that will lay out the issues clearly for policy makers as they attempt to deal with the act's costs and benefits.

Given the polarization and paralysis that the act has generated, it is tempting to view such efforts with skepticism, to shrug and wish Davis and his colleagues good luck. But the act, as he points out, is at base a moral statement about the value of biodiversity and our national commitment to protect it. Any effort to move beyond the hostility to more-effective ways to accomplish its aims must be welcomed.


Malcolm G. Scully is The Chronicle?s editor at large.

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Section: The Chronicle Review

Volme 49, Issue 34, Page B16


Copyright? ?? 2003 by The Chronicle of Higher Education