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The Endangered Species Act




How it works


Recovery Plans and Delisting

Critical Habitat

Habitat Conservation Plans

Controversy: Is the ESA Effective?

Criticism of the ESA--from both sides

Is the ESA biologically unsound?

Private landowners


Links and References


Controversy: Is the Endangered Species Act Effective?

The 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.

Snail Darter

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 Wolf

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.

Delisting 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.

Polar Bear

Community 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.

snail darter
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."

gray wolf


Polar Bear

"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


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