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The Chronicle Review
From the issue dated May 2, 2003
THE
NATURAL WORLD
Protecting
the Endangered Species Act
By MALCOLM G. SCULLY
Of all the federal laws designed to protect the environment,
the Endangered Species Act may be the most admired -- and the most
reviled. Signed by Richard M. Nixon almost 30 years ago, the act has become the
country's most important legal weapon in protecting biodiversity. Its purposes
are "to provide a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved," and "to
provide a program for the conservation of such endangered species and
threatened species."
The act -- one of the most-powerful national laws to protect endangered
species and their habitats -- has been cited as a model for the world. It
has also been praised by many scientists who say that, despite disagreements
over the act's costs and benefits, it has stimulated a wealth of valuable
research on many of the most difficult problems of protecting endangered
species.
But it has also become the favorite whipping boy for businesses, developers,
home builders, property-rights advocates, off-road enthusiasts, and a host of
other interest groups that have felt or claimed to have felt its economic
impact. It has been called a threat to economic progress, a plot by
"environmental wackos to take your rights away," and an "engine
of social change being used by environmental elitists, socialists, and envious
urban muggers to destroy rural America."
There's a coalition to reform it, a coalition to abolish it, and a coalition to
defend it from groups like the first two coalitions. Debates over its
effectiveness and complaints about the burdens it imposes have, since 1992,
thwarted efforts to reauthorize it in Congress. It survives because lawmakers
have appropriated enough funds each year since then to keep it in force.
The two agencies responsible for administering it -- the U.S. Fish and
Wildlife Service for terrestrial and freshwater species, and the National
Marine Fisheries Service for marine and anadromous species, such as salmon,
that spend most of their adult lives at sea but return to freshwater streams to
breed -- have been battered by litigation.
Many of the lawsuits have been aimed at Section 4 of the act, which requires
the government to designate "critical habitat" that is essential to
the survival of a listed species. Environmental groups charge that the Fish and
Wildlife Service has failed to meet required deadlines to designate such
habitat for many listed species. Although officials of both the Clinton and the
Bush administrations have protested that the critical-habitat requirements are
not the most important ways to protect those species and that their agencies'
budgets were not big enough to meet the requirements, the courts have generally
sided with the environmental groups.
Craig Manson, an assistant secretary of the interior, complained about the
"endless" cycle of litigation in testimony before a Senate
subcommittee in April. "These lawsuits have subjected the Service to an
ever-increasing series of court orders and court-approved settlement
agreements, compliance with which now consumes nearly the entire
listing-program budget." And, he added, the court rulings have "fostered
a second round of litigation in which those who fear adverse impacts from
critical-habitat designations challenge those designations."
Because of such battles, "we are in a state of paralysis with the law
now," says Frank Davis, professor of environmental science and management
at the University of California at Santa Barbara. Davis, with colleagues at
Columbia University and the University of Idaho, is organizing a thoroughgoing
review of the act that will culminate with a meeting in November at Santa
Barbara's Donald Bren School of Environmental Science & Management.
He says that the 30th anniversary of the act is an appropriate time to ask,
"What are we trying to protect, what have we accomplished, and where do we
go from here?" In the context of the contention that has surrounded the
law since its inception, those are not innocuous questions nor are they ones
with easy, straightforward answers.
For example, proponents and opponents differ sharply on what the law has
accomplished, and they use the same statistics to bolster their arguments. As
of April, a total of 1,262 species in the United States -- 517 animals and
745 plants -- were listed as threatened or endangered. The list includes
some well-known species, like the right whale and the Florida panther, and some
that few people have ever heard of, like the Iowa Pleistocene snail and the
coastal dunes milkvetch. Since the law was enacted, eight species have been
removed from the list.
Critics say that is a paltry number and that the recovery of some of those
species -- the brown pelican and the Arctic peregrine falcon, for instance
-- should be attributed not to the Endangered Species Act but to the ban
on the pesticide DDT, in 1972. Defenders note that in addition to the eight removals,
25 other species are approaching recovery and that some 40 percent of the
listed species are stable or improving. At present, decisions on listing 37
other species are pending.
To its defenders, critics of the act are, at best, misguided. In a recent
article in the Los Angeles Times, Roger G. Kennedy, director emeritus of
the National Museum of American History and former director of the National
Park Service, decried efforts to portray the act as putting the interest of
endangered species above those of people.
He said that in New Mexico and southern Colorado, where water shortages have
brought sharp attacks on efforts to protect endangered fish by maintaining
water levels in their native streams, "the problem, in the short term, is
one of misuse of water in a dry climate." Politicians, Kennedy said, have
been unwilling "to stop that misuse by powerful interests."
"The Endangered Species Act is doing its job," he added. "It is
forcing us to look at what we are doing, to set limits to wasteful uses, and to
make up our minds as to how a limited water supply should be allocated. All the
scapegoating in the world will not restore the Albuquerque aquifer, nor will it
bring back drinking water lost to golf courses and alfalfa fields.
"In Albuquerque and in other cities, 30 times more water goes for turf
irrigation, including golf courses, street medians, and lawns, than for people
to drink. As the supply of water to drink, or to use to put out fires,
diminishes, the scapegoaters are prowling about looking to assign blame."
Kennedy's argument sums up the views of defenders of the act: We destroy much
of the habitat an endangered species requires and pollute what remains. Then we
demonize the species and the law designed to protect it for blocking progress.
But the critics have a point. The law has had an especially unfortunate
unintended consequence. It has encouraged landowners to get rid of endangered
species or to destroy habitat that might harbor them in order to avoid
restrictions on what they can do with their land. They have no incentive to
work with the government to protect the species; in fact, they have a wide
variety of disincentives.
As Michael L. Rosenzweig, a professor of ecology and evolutionary biology at
the University of Arizona, writes, "The Endangered Species Act's
relationship to the private landowner is altogether pernicious. Whoever ruins
the land for wild creatures goes unscathed and continues to have the
unrestricted right to exploit it. Meanwhile, whoever improves the world for a
rare species gets punished." A land-owner who attracts an endangered or
threatened species by providing appropriate habitat faces restrictions on his
ability to use his land, Rosenzweig notes, whereas an owner who fears his land
may attract such a species can destroy the habitat at will and face no
penalties.
To create incentives for landowners to protect habitat and species, the
agencies have developed "safe harbor" agreements under which, if an
owner agrees to conduct activities for a specified period of time to encourage
the survival of an endangered species, he or she will not face additional
restrictions on the use of the land in the future. Under such agreements,
Rosenzweig says, "People who do the best they can to heal the land and
protect its species will, when they succeed, not be deprived of their right to
use it for pleasure or profit."
Like virtually every other aspect of the act, the safe-harbor agreements have
drawn criticism from both sides of the debate. Property-rights advocates say
they provide too few incentives to landowners; environmentalists say they do
not assure permanent protection of habitat.
Those agreements and dozens of other aspects of the act will be part of the
review that Santa Barbara's Frank Davis and his colleagues will conduct. The
organizers have recruited specialists in biology, conservation, economics, and
natural-resource law to prepare detailed analyses of the act's goals, its
successes and failures, and its future in protecting diversity in
human-dominated landscapes. The results will be reviewed by a group of
legislators, policy makers, natural-resource managers, and private landowners.
It is crucial to the success of efforts to protect endangered species, Davis
says, to move beyond the agenda-driven approaches of the act's critics and
defenders and to come up with realistic, dispassionate ways to analyze how best
to accomplish its goals. "What hasn't happened thus far," he adds,
"is the bringing together of all the dimensions of science, science
policy, and the law," in ways that will lay out the issues clearly for
policy makers as they attempt to deal with the act's costs and benefits.
Given the polarization and paralysis that the act has generated, it is tempting
to view such efforts with skepticism, to shrug and wish Davis and his
colleagues good luck. But the act, as he points out, is at base a moral
statement about the value of biodiversity and our national commitment to
protect it. Any effort to move beyond the hostility to more-effective ways to
accomplish its aims must be welcomed.
Malcolm G. Scully is The Chronicle’s editor at large.
http://chronicle.com
Section: The Chronicle Review
Volme 49, Issue 34, Page B16
Copyright © 2003 by The Chronicle of Higher Education