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Endangered Species Act: An Overview
The Endangered Species Act (ESA), signed into law by President Nixon in 1973, is the nation's principal legal tool for protecting animal and plant species on the brink of extinction. It is a sweeping attempt to protect threatened and endangered species and to incorporate habitat protection as a central part of that effort. Currently, the Fish and Wildlife Service lists 1,080 species as threatened or endangered, with 406 species considered to be candidates and another 4,000 as species of concern (FWS, 1997).
HOW THE LEGISLATION WORKS
The ESA is administered primarily by the Fish and Wildlife Service (FWS), but also the National Marine Fisheries Service (NMFS) for certain marine species. Under the ESA, certain species of plants and animals (both vertebrate and invertebrate) may be listed as either "endangered" or "threatened" according to assessment of their risk of extinction. Once a species is listed, the ESA grants powerful legal authority to protect species and habitat and to guide recovery.
The Act has many parts, but its three main elements are i) listing of a species as endangered or threatened, ii) development of a recovery plan, and iii) designation of critical habitat.
The listing stage is where the decision is made as to whether a species is truly in danger of extinction, based on its population size and distribution, how much of its habitat remains, and other data. According to the law, this evaluation of a species' condition is to be made according to the best available scientific information, unbiased by subjective evaluations of the species' worth or the economic cost of saving them.
The recovery plan is a proposed set of steps to restore the species to a viable population size. Funding is made available to federal and state agencies under the Act to carry out the plan. Of the US species, 650 are currently covered in 454 recovery plans (FWS, 1997).
Critical habitat -- a key element of most recovery plans -- is the area required to be protected in order for the species to recover. The concept of "critical habitat" is based on the findings of conservation scientists that the most common threat to species' viability is the destruction of the habitat they need to survive and reproduce.
HISTORICAL CONTEXT
Concern for endangered species generally is identified with the ESA, although species preservation actions in earnest began at the end of the last century (Yellowstone Park Protection Act, 1894; Lacey Act, 1900). Prior to this, preservation consisted of state regulations concerning perpetuation of game species. Even then, scientists noted species declines with alarm as hunting, trapping, and habitat destruction took their toll. The first National Wildlife Refuge (Pelican Island) was established in 1903 by President Roosevelt, and set the precedent for conserving species. Other legislation followed, including establishment of National Bison Range (1908), the Migratory Bird Treaty Act (1916, 1917, 1918), and the Bald Eagle Protection Act (1940), among others.
The next significant step toward conserving biodiversity came on the heels of Rachel Carson's "Silent Spring," which brought the issue of species decline to the front of national concern and into the halls of Congress. In part a result of the maelstrom caused by Carson's book, Congress passed the Endangered Species Preservation Act in 1966. This was the first explicit legislation concerning endangered species and their protection. It provided for scientific review of endangered species, authorized habitat acquisition, and formalized the National Wildlife Refuge System as a means of protecting endangered species.
Three years later the 1969 Endangered Species Conservation Act expanded the 1966 Act to include all species of vertebrates and some invertebrate groups. The Act also addressed importation of endangered species from foreign countries, and one provision led to the development of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Endangered Species Act of 1973 modified species protection to cover plants as well as animals -- only insect pests were excluded. The Act also formally recognized species as integral components of ecosystems.
THE ENDANGERED SPECIES ACT AND SOUND SCIENCE
All authoritative sources agree that the current ESA is based on sound science. Conservation scientists who have examined the Act's operation have concluded that "Even among those species that have not recovered, it is likely that many would have been lost some time ago were it not for legal protection and implementation of recovery efforts" (Meffe and Carroll 1997). The National Research Council's "overall conclusion is that the ESA is based on sound scientific principles," and added "there is no doubt that it has prevented the extinction of some species and slowed the decline of others" (Clegg et al. 1995).
Today, "ecosystem management" is widely recognized as a sound approach to natural resource management strategy. While implementation of the ESA focuses on individual species, it does not contradict important principles of ecosystem management. Rather, the foresighted language of the ESA defines its purpose as "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." The reason implementation focuses on individual species is because their attributes are more discrete than whole ecosystems -- and are thus easier to monitor and quantify. Furthermore, the decline of an individual species may well indicate a stress to the ecosystem at large (e.g., serve as indicator species); delaying action until an entire ecosystem shows signs of decline increases the burden of recovery efforts as well as reduces the opportunity for success (Eisner et al. 1995). To this end, administrative changes were adopted by the Department of Interior in 1994 to foster the development of multi-species recovery plans that focus on ecosystem health and the need to protect large-scale habitat mosaics.
Keeping the big picture in mind, however, it is important to remember that the ESA was never intended as a unilateral policy to preserve all of the nation's ecosystems and biota. Rather, it should function as a "safety net" to be called into play when other policies and management strategies -- or human activities in general -- have led to species endangerment. The framers of the original legislation created a powerful environmental tool for precisely that purpose -- to ensure species survival when other actions have failed. In addition to the "safety net" of the ESA, most conservation scientists agree that efforts to recover endangered and threatened species must use a variety of approaches, including restoring lost or degraded habitats; reconnecting habitat patches in highly fragmented landscapes; reintroducing or mimicking ecological processes -- including natural disturbance regimes such as periodic fire or flood -- in order to sustain ecosystems; controlling or eliminating the plague of non-native plants and animals that have severely altered natural communities; reintroducing endangered or threatened species into areas from which they have been extirpated; and generally managing actively for improvement in the status of imperiled species rather than for the maintenance of an unsatisfactory status quo (Meffe, Pimm et al. 1998).
ESA SUCCESSES
Whether the ESA may be considered a "success" depends in part on how one chooses to measure success. By one measure, listed species that have stabilized or increased their populations clearly illustrate success. Only seven species -- less than one percent -- of those listed had gone extinct by the end of fiscal 1994. Forty-one percent of the species listed, and 58 percent of those listed between 1968 and 1973, are now known to have stable or increasing populations. Species whose extinction appears to have been prevented by the Act include the California condor, the whooping crane, the red wolf, and the black-footed ferret (Corn 1997). The gray whale and the American alligator have recovered so well that they have been removed from the list entirely.
The best example of a success under the Act is the nation's symbol, the bald eagle. From a population of tens of thousands in the 19th century, the eagle had declined to only 417 pairs in the lower 48 states by 1963. By 1994, after 20 years of protection, the population had grown ten-fold, to more than 4,000 breeding pairs. As a result of this recovery, the bald eagle's status is now being upgraded from endangered to threatened. Similar upgrading has recently been proposed for the peregrine falcon, which has recovered so well under the Act's protection that it now nests in skyscrapers in several major cities.
ESA CONCERNS
While the standard of population stabilization indicates success, a major goal of the ESA is the recovery of species to the point at which the protection is no longer necessary. But under the standard of population recovery, the Act fares less well. Only 22 species have been removed from the list since 1973 -- seven because of extinction, eight because of "data error," and seven because of recovery (Corn 1997). And in fact, many of the country's senior ecologists and conservation scientists are deeply troubled by the small number of endangered species that have recovered and by the FWS's assessment that fewer than 10 percent of currently listed species are actually improving in status (Meffe, Pimm et al. 1998). These results suggest that the ESA must be improved quickly to maintain a significant share of the United States' biological wealth. One critical limitation of the ESA -- and a central issue in the current reauthorization debate in Congress -- is that it provides no incentives for private landowners to protect habitat for endangered species on their property. In practice, finding endangered species on private lands implies no benefits, only limitations and costs for the landowners. So the current law creates perverse incentives for landowners to hide the presence of endangered species on their property, or even to eliminate species before they are discovered.
This inability to protect species on nonfederal land is especially dangerous because more than half of US listed species have at least 81 percent of their habitat on nonfederal land. Between one-third and one-half of the protected species have none of their habitat on federal land. For listed plants and animals on federal land, approximately 18 percent are judged to be improving, and the ratio of declining to improving species is 1.5:1. In contrast, for species on private land only three percent are improving, and the ratio of declining to improving species is 9:1. Further, many of the states with high numbers of threatened and endangered species have little federal land. Even in states with significant amounts of federal land, there are often threatened and endangered species whose primary habitat is on non-federal land (Wilcove et al. 1996).
THE CURRENT CONTROVERSY
Although the Endangered Species Act has been amended by Congress seven times since its inception 25 years ago, the past several years have been unusually contentious ones. The delays and contention can be at least partially explained by the high stakes involved in biodiversity protection. Species protection is accused of costing jobs, halting economic development, wasting taxpayers money, and robbing property owners of their rights.
The ESA itself has been accused of blocking economic growth, despite the fact that only 0.5 percent of evaluations under the Act in five years stopped a project from going forward. "In 1990 the [USFWS] examined 28,000 different activities, from timber sales to water projects, to determine if they would harm endangered species. Only two -- a water project in Colorado and a harbor project in California -- were stopped, and even they may eventually be allowed to move forward if the builders can make alterations that minimize the projects' effects on the species they jeopardize" (Barker, 1993). Anecdotes abound about private property owners who have allegedly suffered great financial harm because endangered species have been found on their land, yet many of these turn out to be exaggerated, incomplete, or simply untrue. (See, for example, "The Rat Didn't Do It," GAO, 1994b.) Many environmentalists and scientists, on the other hand, believe that ESA does not go far enough to provide protection for endangered plants and animals.
At the core of much of this debate is the need to consider distinctions between actions on private and public lands and development of approaches that acknowledge these differences. The National Research Council identified in its 1995 report that "...it is critical to understand that because public and private entities may behave differently, different management policies may be required for public and private land in order to achieve the same biological risks for listed species in the two settings. No implementation of the ESA can be fully successful without recognizing these differences" (Clegg et al. 1995).
The critical task at hand, then, is the successful crafting and passage of reauthorization legislation that successfully balances the needs of private landowners with adequate protections for endangered plants and animals and the habitats they need to survive. While it is not clear that ESA reauthorization will move in this session of Congress, a bipartisan bill currently pending in the Senate -- S. 1180 -- is more likely to proceed than any other effort of the past several years. While this bill has some strong features, the Union of Concerned Scientists (UCS) will support it if and only if key amendments are made to conform with recommendations recently proposed by prominent conservation biologists in the Meffe-Pimm letter to the bill's four co-sponsors. These recommendations include the need to insert safeguards that make the "no surprises" policy more scientifically realistic; the need to reduce the complexity of the new listing and recovery planning procedures; and the need for an adequate and assured source of funding for landowner incentive programs (Meffe, Pimm et al. 1998). [For more information about the specifics of S.1180 and the current political climate for ESA reauthorization, consult SSI Information Update, "The Endangered Species Act: Revising the ESA in the 105th Congress," March 5, 1998. If you need another copy of that document, please contact us at ssi@ucsusa.org.]
REFERENCES: - Barker, Rocky. (1993) Saving All the Parts: Reconciling Economics and the Endangered Species Act. Island Press: Covelo, California.
- Clegg, M. et al. (1995) "Science and the Endangered Species Act." National Research Council, Committee on Scientific Issues in the Endangered Species Act. National Academy Press: Washington, DC.
- Corn, M.L. (Jan. 24, 1997) "Endangered Species: Continuing Controversy," Environment and Natural Resources Policy Division, U.S. Congress, Congressional Research Service.
- Eisner, T., Lubchenco, J., Wilson, E.O., Wilcove, D.S., and Bean, M.J. (Sept. 1, 1995) "Building a Scientifically Sound Policy for Protecting Endangered Species." Science 268(5228):1231-1232.
- Environmental Defense Fund. (October 1997) "An Analysis of Key Features of the Endangered Species Recovery Action of 1997."
- Fish and Wildlife Service, Endangered Species Updates, http://www.usfws.gov
- General Accounting Office. (1994a) "Endangered Species Act: Impact of Species Protection Efforts on the 1993 California Fire." GAO Letter Report GAO/RCED-94-224. U.S. Government Printing Office: Washington, DC.
- General Accounting Office. (1994b) "Endangered Species Act, Information on Species Protection on Nonfederal Lands." GAO-RCED-95-16. U.S. Government Printing Office: Washington, DC.
- Meffe, Gary and C. Ronald Carroll. 1997. Principles of Conservation Biology, 2nd edition. Sinauer Associates, Sunderland, MA.
- Meffe, Gary and Stuart Pimm, et al. (Jan. 27, 1998). Letter to Sens. Baucus, Chafee, Kempthorne, and Reid. [A copy of the Meffe, Pimm letter accompanied an SSI Action Alert dated March 6, 1998. If you need another copy, contact us at ssi@ucsusa.org.]
- Wilcove, D.S., Bean, M.J., Bonnie, R., and McMillan, M. (Dec. 5, 1996) "Rebuilding the Ark, Toward a More Effective Endangered Species Act for Private Land." Environmental Defense Fund, p 2.
ADDITIONAL RESOURCES: - Baldwin, P, "Habitat Modification and the Endangered Species Act: The Sweet Home Decision," American Law Division, U.S. Congress, Congressional Research Service, 95-778A, July 6, 1995.
- Ecological Society of America. (1995) "Strengthening the Use of Science in Achieving the Goals of the Endangered Species Act." Ad hoc Committee on Endangered Species. Ecological Society of America.
- Ehrlich, P., and Ehrlich, A., Betrayal of Science and Reason, How Anti-Environmentalist Rhetoric Threatens Our Future (Island Press: Washington, DC, 1996).
- Flather, C.H, Joyce, L.S., Bloomgarden, C.A., Species Endangerment Patterns in the United States, U.S. Department of Agriculture, Forest Service, General Technical Report RM-241, January 1994.
- Lee, M.R., "Environmental Protection Issues: From the 104th to the 105th Congress," Environment and Natural Resources Policy Division, U.S. Congress, Congressional Research Service, 97-80ENR, Jan. 7, 1997.
- Meltz, R., "The Endangered Species Act and Private Property: A Legal Primer," American Law Division, U.S. Congress, Congressional Research Service, 93-436A, Mar.7, 1993.
- Robinson, W.L., and Bolen, E.G., Wildlife Ecology and Management (Macmillan Publishing Co: New York, NY, 1984).
- Terborgh, J. and van Shaik, C.P., "Minimizing Species Loss: The Imperative of Protection," in: Last Stand, R.Kramer, C.van Shaik, and J. Johnson (Eds.) (Oxford University Press: New York, 1997).
March, 1998
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Acknowledgements
Much of the information in this Information Update was researched and prepared for the Union of Concerned Scientists by consultants P.J. Durana and J.E. Davey. |
