The lobbyists pushing these policies have based their critique of the ESA on how it attempts to control land use rather than species conservation. After all, they argue, it’s not the endangered land act. And this critique spotlights the core debate over the ESA’s implementation dating back to Day One: Is it about controlling lands or species?
While the ESA’s ostensible focus is on the latter, scientists have long argued that the former is essential — and not just to preserve species. For decades, the ESA been a critical signal — and legal recognition — of the many diverse values offered by nature, not merely its economic value as “natural resources.” To roll back this landmark act would be to surrender land and wildlife to relentless cost/benefit analysis and commodification.
Far from a perversion of its original intent, as the ESA’s critics maintain, its focus on land use has been intrinsic from the beginning. As enacted in 1973 (and subsequently amended), Section Four requires the interior secretary to “designate critical habitat” for endangered species, Section Five provides for land acquisition for conservation, and Section Nine prohibits “taking” endangered species — a broad, and contentious, prohibition on harming wildlife on state and private lands.
By the end of 1975, the U.S. Fish and Wildlife Service had created regulations that specified the meaning of “take.” It clarified the term to also include “environmental modification or degradation” that had the potential to “harm” wildlife (and therefore posed a threat to protected species).
This was not just wordsmithing. Rather, these were new restrictions that had huge ramifications. Combined with a series of court cases, legislative amendments and administrative decisions, the ESA and federal agencies began to focus on protecting habitats as the means to preserve species, with serious consequences for everything from property rights to public works projects.
The first such consequence, prompting major changes to the ESA, came in the wake of a 1978 Supreme Court decision. The court allowed a small fish to hold up the construction of a Tennessee Valley Authority damming project. The court pointed out that, as written, the ESA clearly prohibited the endangerment of the listed species, regardless of how much money had been spent on the dam.
And so, to prevent future investments from being stalled by creatures like the snail darter, Congress amended the ESA to make it more complicated to add species to the endangered list.
In the early 1980s, President Ronald Reagan all but halted species listing by restricting funding and signing an executive order calling for economic review of all federal government actions.
But this didn’t spell the beginning of an inexorable hollowing out of the ESA. In response, Congress again amended the ESA in 1982 to reaffirm the original intent to make listing decisions solely on the basis of scientific data, excluding economic analysis, and setting firm time limits within which to do so.
But this Congress also sought to achieve a balancing act. Much to the chagrin of environmental activists, it also created an “incidental take” permit system that allowed federal or federally permitted activities to harm endangered species if the agency could show that, among other things, “the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.”
It was these issues — bureaucratic authority, economic considerations and which actions constituted “taking” endangered wildlife — that came to a head in the 1995 Babbitt v. Sweet Home Supreme Court case.
In that case, debate over the Northern spotted owl took center stage. A group of logging interests claimed that including owl habitat degradation in the definition of “harm” exceeded the authority and intent of the original legislation. After all, the owls’ habitat infringed on their business.
Distinguished biologists from across the country fought back. They argued that the owl was threatened because of human actions like those of the loggers. By destroying the habitat, loggers were putting the owl on the path to extinction.
These scientists wrote a court brief explaining that species depend on the larger ecosystems of which they are a part, and therefore “harm” to habitat constituted harm to the species themselves. Furthermore, because ecosystems did not follow legal property lines, “attempting to divide ecosystems, for purposes of habitat conservation measures, between federal and nonfederal land is sheer folly.” They concluded with a fierce defense of the ESA and the need to focus on habitat: “There is no other law like the ESA. No law so boldly states the commitment to respect all forms of life, and strives to understand the human role in evolution. If the ESA does not protect habitat, wherever it be found, then it does not protect species, and it cannot succeed.”
The biologists won. Critically, the court accepted the notion that if the government couldn’t protect the land that was so critical to the existence of species, it couldn’t protect the species.
Still, government officials sought to achieve a middle ground: The ruling coincided with a push from Interior Secretary Bruce Babbitt to initiate a series of internal reforms that encouraged public-private agreements to balance economic development and wildlife conservation before listing even became necessary.
By and large, this state of affairs has persisted to the present: avoiding listing species as “threatened” or “endangered” if possible, listing them (if necessary) based on scientific assessment instead of economic concerns and — most important — keeping “critical habitat” front and center.
But critics have never accepted these ideas. To them, the current understanding of the ESA stretches it beyond its legal authority, distorts its purpose and privileges the well-being of individual species over economic livelihoods of Americans (say, for example, the recently alleged $34 million cost to landowners to save the dusky gopher frog in Louisiana). To them, the ESA is not about saving species at all, but rather a backdoor method of controlling lands — an encroachment on people’s freedom to do as they please with their property that also damages the economy.
But separating species and habitat and removing them from their ecological and historical context is disingenuous and dangerous. The Endangered Species Act has always been about preserving fragile populations of plants and animals and the lands upon which they are found — simply because the former can’t be achieved without the latter. From its inception, the law intended to prioritize these goals over economic impacts.
But the ESA also has another purpose, one that its critics miss: establishing a shared natural heritage that is valued beyond simple resource extraction. We control land use because, as stated in the original ESA, “fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” This goal is critically important, and if the ESA is undercut, we’re doomed to view land solely as an economic commodity.