Endangered Species Act Turns 35

Nov 1, 2008 | Michael Bean, Carolyn Fischer

The year 2008 marks the 35th anniversary of the Endangered Species Act, which won overwhelming support in Congress in 1973, and then rapidly became one of America's most controversial laws, generating hundreds of legal challenges by government authorities, conservationists, landowners, and industry. Resources asked Michael Bean, one of the nation's foremost authorities on the act, to reflect on the policy questions around endangered species and discuss where the issue is heading. Bean is chair of the Wildlife Program at Environmental Defense and an RFF Board member. He was interviewed by RFF Fellow Carolyn Fischer. Their conversation follows.

Fischer: What circumstances surrounded the creation of the Endangered Species Act and what followed its enactment?

Carolyn Fischer and Michael BeanBean: The act became law with virtually no controversy. Senate passage was unanimous, and there was only a smattering of opposition in the House. That unanimity reflected widespread sentiment that the nation needed to safeguard its natural biological heritage, just as it protects landmark buildings and historic sites. The act was quite comprehensive, encompassing not only vertebrates but also invertebrates and plants. Today there are approximately 1,300 listed species in this country, the majority of which are plants.

However, the honeymoon was short-lived. Less than five years after enactment, conflict arose over the construction of the Tellico Damon the Little Tennessee River,which put at risk a small fish, the snail darter. In 1978, the Supreme Court affirmed the authority of the Endangered Species Act, noting that Congress had spoken with absolute clarity - even to the extent of protecting a fish that had no obvious commercial or recreational value.

Then, about 10 years after that, another controversy arose involving the preservation of the northern spotted owl against logging activity in a large part of the West - Oregon, Washington, and northern California, involving large areas of public and private land. That dispute was a watershed because it showed that this law could affect more than isolated projects: it could disrupt whole economies in substantial and multiple ways.

Fischer: What is the status of the act today?

Bean: Currently, there is no serious effort to reauthorize the act, or even a high degree of consensus on how it might be modified. I think there is no prospect that this Congress is going to tackle this issue.

However, Congress is seriously considering measures to create stronger incentives for the private sector to cooperate with endangered species recovery work, including tax credits for conservation efforts by private landowners. That appears to have broad support from the White House and by both parties.

Of course, there are many administrative and regulatory measures - which don't require congressional action - that can strengthen or weaken the law. It has been reported that the Fish and Wildlife Service recently drafted proposed regulations that would limit the number of species that can be protected and curtail the acres of wildlife habitat to be preserved. They would shift enforcement of the act from the federal government to the states and dilute legal barriers that protect habitat from urban sprawl and logging or mining operations.Whether these proposals will actually be published is unclear.

Fischer: Are new species continually being added to the endangered list?

Bean: No. It has been more than a year since any species have been added, which is longer than at any time since the early 1980s. We know that some plants and animals are increasingly threatened because of commercial and industrial development, but the federal government has lagged in placing them on the list. One of the positive aspects of the Bush administration has been to encourage anticipatory approaches and take action to help species before they reach the point at which they need to be listed.

Another positive development is that three rather conspicuous and visible species were 'de-listed' in early 2007, which is rather unusual. First was the Great Lakes grey wolf population, followed by the Yellowstone grizzly bear population, and shortly before the Fourth of July, the bald eagle was de-listed. These species had been on the first official list of endangered species since 1967. So it took four decades - getting from endangered to recovery is a long process.

Fischer: Was there something unusual about these three species?

San Joaquin kit foxBean: Well, they are well-known, recognizable animals, associated with our national history, and they are somewhat charismatic in their allure. It is certainly true that the public recognizes a relatively few endangered species as iconic. The more prominent animal species tend to garner more public and financial support. They also are physically larger and occupy greater geographic regions - the bald eagle is present all across the country.

Whooping cranes are magnificent animals that had dropped in number to around 15 birds in the wild in the early 1940s. Six decades later, they are recovering but there still are only about 680 birds, and they will probably remain on the endangered list for many more years. By contrast, a small species like the Devil's Hole pupfish, which lives in a sinkhole in Nevada, doesn't attract much support - although its needs can probably be addressed reasonably well with a modest amount of intervention.

So it is indeed the case that there is a disparity as to where the money and attention go. Decisions are heavily influenced by public perception and by the history of wildlife management in this country. To be sure, birds and game animals have had a long history of attention from wildlife managers. In contrast, plants have received almost none, as have invertebrates and even some vertebrates like salamanders and small mammals. It's not just a matter of putting dollars on the most popular species as it is putting dollars into conservation efforts that American wildlife management understands and can influence.

Fischer: Does litigation help conservation efforts?

Bean: That is a complicated question to answer. On the one hand, legal challenges have been necessary to force agencies to do what the law requires, or to give some species a chance for survival. At the same time, somuch litigation has been filed over the years that it has been difficult for responsible federal agencies tomanage the program because they are constantly sidetracked by the need to respond.

Litigation can have profound impacts, however. This year, the Supreme Court made a ruling that limited the application of a key requirement of the act to discretionary federal activities only. This was in a case involving the transfer of authority for some provisions of the CleanWater Act from EPA to the state of Arizona, and it will have broad policy implications.

Another case that the court may consider this term regards the listing of the Alabama Sturgeon, now found only in Alabama and thus not involved in interstate commerce. Barge interests using the Tennessee-Tombigbee Waterway have asked the Supreme Court to declare the listing of the sturgeon to be beyond the federal government's constitutional powers.

Fischer: Are private landowners becoming more active in preserving endangered species?

Bean: Absolutely. In my own work, I realized - probably later than I should have - that the stringent regulations imposed on private landowners caused some of them to do the opposite of what we wanted them to do. They refrained from the sort of management that would make their land better habitat. They reasoned that if they ended up with more endangered species on their land, they could have even more restrictions placed on the uses of their property.

A few years ago, we began working with landowners in North Carolina on behalf of an endangered bird known as the red-cockaded woodpecker. Landowners told us that if they could be freed from the worry that their good deeds would be punished, they would follow through. So, we worked with the Fish and Wildlife Service to create so-called Safe Harbor Agreements that essentially froze their regulatory burdens if they embraced good wildlife management practices. Today there are between 50,000 and 60,000 acres owned by some 101 owners inNorth Carolina enrolled in these agreements, and the idea has been even more successful in South Carolina and Georgia.Woodpecker numbers are on the rise and other threatened species are benefiting as well.

In Texas, cooperative Safe Harbor Agreements have probably ensured the salvation of the Northern Aplomado falcon. That species has increased from zero nesting pairs in the mid-1990s to at least 40 known nesting pairs, about two-thirds of the way to the target set for reclassifying the species from endangered to threatened.

Fischer: Has the Bush administration encouraged such efforts?

Bean: Early on, the administration announced two new programs - one called the Landowner Incentive Program and the other, the Private Stewardship Grants Program. They originally were envisioned as $50 million initiatives, but in the president's budget proposal for 2008, no funding was requested for these programs. So that has been a disappointing abandonment of approaches that have been shown to work.


Fischer: Can you give some examples of what owners are asked to do in various parts of the country?

Adorable baby bald eaglesBean: Sure. It may involve some prescribed burning in longleaf pine forests in the southeastern United States, or restoration of riparian or wetland habitats in the West, which have suffered dramatically over the last 30 or 40 years. In Florida, owners are being encouraged to stem the spread of Kogon grass, an Asian invasive species that is very hard to eradicate once it is established, which is interfering with gopher tortoise populations.

In New England, the bog turtle is being helped by restoration of open, sunny,wetland meadows. This traditionally was accomplished by elk and buffalo grazing in pre-agricultural times, and then by farm animals. But with the decline of farming in the northeast, my organization has actually rented goats to beat back the undesirable woody vegetation and free up the areas that the bog turtle depends upon.

Fischer: When the act is eventually reauthorized, what changes would you recommend?

Bean: Three things. First, more attention needs to be given to incentives. The act now is largely prohibitory and doesn't have provisions that encourage landowners to do more than the minimum. This could change as the result of work by organizations like RFF to better measure the value of ecosystem services, and by establishing conservation banks and other market mechanisms to reward positive behavior toward endangered species.

Second, we clearly need to figure out a way to forge a more effective working partnership with the states so that better federal-state coordination can take place. And third, if we are really serious about preventing extinctions of any plant or animal in the United States - as the act now mandates - it is going to take resources that far exceed what Congress has provided up to now. Given ongoing climate changes, commercial development and residential expansion, and globalization trends, we need to invest