Controversy: Is the Endangered Species Act Effective?
Endangered Species Act, whose main purpose is to "protect imperiled
species from extinction due to the consequences of economic growth
and development untempered by adequate concern and conservation,"
has come under fire both from conservation biologists and
interests groups advocating for private property rights. Both sides'
main argument? The ESA isn't effective. Although numbers of
charismatic species like the bald eagle and the gray whale have
improved, many wonder whether the Act can take all the credit.
According to the USFWS,
as of April 3, 2007, 41 total
species have been delisted: sixteen due to recovery, nine due to
extinction (seven of which were extinct prior to being listed), nine
due to changes in taxonomic classification, five due to discovery of
new populations, one due to an error in the listing rule, and one due
to an amendment to the ESA requiring the species delisting. Consider
the following case studies.
In August of 1973, a University of Tennessee biologist discovered a
small fish species, the snail darter, in the Little Tennessee River
while conducting research involving a lawsuit around construction of
the Tellico Dam. Creation of the Tellico Reservoir, to be created by
the Tellico Dam, the scientist predicted, would alter the snail
darter's habitat to the point of extirpation.
Opponents of the dam used the snail darter as leverage in attempting
to halt construction and invoked the Endangered Species Act to do so.
The Tennessee Valley Authority argued that (1) since the Act was
passed after the project began (December 1973) it did not apply and
(2) after Congress passed the Endangered Species Act it continued to
appropriate funds to Tellico; therefore, Congress did not intend for
the ESA to apply to Tellico.
The Supreme Court's ruling in Tennessee Valley Authority vs. Hill
(1978) was unprecedented. Speaking for the majority, Chief Justice
Warren Burger announced the court's decision to rule in favor of the
snail darter, halting construction on the Tellico Dam. Caution was
taken not to say that Congress broke the law by funding the Dam.
According to the ruling, the language and intended goals of the
Endangered Species Act are clear: there are no exceptions for project
like Tellico that were well under way when Congress passed the Act,
and that Congress' intent was to slow, stop and reverse the trend
toward species extinction—no matter the cost.
Soon after the ruling, Tennessee legislators in favor of the Tellico
Dam began an appeals process which included sponsorship of an
amendment to the Act that would form an investigative committee
whenever controversy arose over a listing. Dubbed the "God Squad,"
even this committee deemed the Tellico Dam project “dangerous” to
the snail darter and "economically not beneficial." Nonetheless,
legislators appealed again, and the case reached President Jimmy
Carter's desk in 1979. Although he wanted to veto the bill that
would override the Supreme Court's decision, political realities and
other pressing issues, like the Panama Canal Treaty, forced the
President to sign it on September 25, 1979. As the gates closed on
the Tellico Dam and the Tellico Resevoir formed in subsequent years,
several other populations of the snail darter were found elsewhere
around the country, and the species was delisted in the late 1980s.
The snail darter controversy not
only illustrates the conflict between conservation biologists and
economic interest groups, it also shows just how entwined science and
politics are in conservation legislation. Biologists and politicians
alike have suggested ways to mitigate the problems arising from this
unhappy marriage, which will be discussed in later sections.
Gray wolves once inhabited huge expanses of the lower 48 states, but
as humans began to settle these areas, wolves became a problem due to
its livestock predation. Farmers hunted the wolves, and community
numbers decreased rapidly to less than 100 in each of the designated
population segments. The gray wolf was put on the Endangered Species
List in 1974, and efforts were carried out to ensure the species'
recovery. Penalty for violations could be a fine of $100,000 and jail
time. The recovery plan included assured survival for the gray wolf
in Minnesota with a population goal of between 1,250 and 1,400, and a
population of at least 100 in Michigan and Wisconsin for five
consecutive years. Each state's recovery plan has been successful;
Minnesota has been above its goal since the late '70s and Michigan
and Wisconsin achieved its goal in the winter of 1993-94.
of the wolf was proposed in 2004. If the gray wolf were to be
delisted, it would no longer be protected from human activities like
hunting and trapping, although there are some safeguards in place.
This idea troubled many conservationists, but L. David Mech, one of the world's foremost wolf researchers and
activists, argued that indeed the wolf should be delisted in order
to save the Endangered Species Act itself. Dr. Mech sees the wolves
as a success story for the ESA and a way to argue for the legitimacy
of the Act. On January 29, 2007, gray wolf populations in the
Western Great Lakes states were delisted. For the complete January 29, 2007 Press Release announcing delisting
of Western Great Lakes wolves, click here.
numbers of polar bears across the Arctic have been shrinking
drastically in the last 20 years; the worldwide count is currently at
20,000 to 25,000 and dwindling. This has prompted may NGOs, as well
as United States Congresspeople to petition for the listing of the
polar bear under the United States Endangered Species Act.
The most immediate and widely recognized threat to the polar bear is
destruction of their natural habitat due to global climate change. The ice is literally melting under their paws. The U.S. Geological
Survey stated in November 2006 that the loss of sea ice in the
Alaskan portion of the Beaufort Sea has lead to a higher death rate
for polar bear cubs. The BBC reported via the Canadian Wildlife
Service that climate change is threatening polar bears with
starvation by shortening their hunting season. This makes the
listing of the polar bear a particularly controversial topic: if the
USFWS decides to list, it would be the first animal whose habitat is
threatened due to global climate change.
With support from United States senator Joe Lieberman, the Center for
Biological Diversity petitioned the USFWS in February of 2005
to use the ESA to list the polar as a threatened species. After no
response within the alloted 90 day period, the Center for Biological
Diversity, along with Greenpeace and the Natural Resource Defense
Council filed a lawsuit in California on December 16, 2006. On
December 27 of the same year, the US Department of the Interior
proposed that the polar bear be added to the Endangered Species List.
A proto-proposal for the listing was submitted by a coalition of the
three aforementioned groups, entitled "Range-Wide Status Review of
the Polar Bear," six days before Secretary of the Interior Dirk
Kempthorne officially proposed adding polar bears to the endangered
species list. In it, the groups refers, for example, to a 2005 study
by NASA scientist James Hansen that suggest “the warming tred would
changed considerably if actions were taken soon enough to keep the
atmospheric gases from increasing." The official proposal takes
great strides to avoid such language, and in the section called "Mechanisms to Regulate Sea Ice Recession," it states, "There
are no known regulatory mechanisms effectively addressing reductions
in sea ice habitat at this time." According to an article first published in the Washington Post, Dale Hall, director of the
USFWS said that if the polar bear makes it onto the endangered
species list, his agency would ask climate scientists about
addressing global climate change.
Perhaps a better measure of effectiveness of the Endangered Species
Act, M. Lynne Corn, in a 2001 Congressional Research Service Issue Brief,
suggests, would be the number of species that have stabilized or
increased their populations, even if the species is not fully
delisted. This is because many argue scientific studies show that
most species are listed only once they have already become very
depleted. In another brief, it is suggested that the Act be
considered a success since 41% of listed species have improved or
stabilized their population levels. And, although they are still
rare, it is argued that red wolves and California condors have been
saved from extinction by the Endangered Species Act.
Little fish; big controversy
Chief Justice Burger
stated that to not rule in
favor of the snail darter would be "to ignore the ordinary meaning
of plain language. It has not been shown, for example, how TVA can
close the gates of the Tellico Dam without 'carrying out' an action
that has been 'authorized' and 'funded' by federal agency. Nor can
we understand how such an action will 'insure' that the snail
darter's habitat is not disrupted."
"We would ask, 'Is there
anything that could be done in the next 45 years that could keep it
from becoming endangered?'"
-Dale Hall, Director of the USFWS