Saving Endangered Species Requires a Systemic, Nationwide Approach

by Robert Glicksman

April 21, 2016

Yesterday, I joined four other witnesses in testifying about the Endangered Species Act (ESA) at a House Oversight and Government Reform subcommittee hearing. Most of the witnesses and House members who attended focused on a variety of complaints about the ESA's provisions governing listing and delisting of species and called for changes to the law and the ways in which it is administered. In doing so, they missed the larger point about efforts to save endangered and threatened species: we need the type of systemic, nationwide approach envisioned by the framers of the ESA, and we need fully funded agencies that are empowered to protect habitats and ecosystems, not just individual species. 

As I noted in my testimony, the ESA has achieved considerable success in meeting its conservation goals. Without it, animals like the bald eagle and the alligator may have been pushed past the brink of extinction, causing not only their elimination from the American landscape, but also unpredictable and potentially devastating consequences for the ecosystems in which they live.  

In addition to the species that have fully recovered and been delisted, many species have been upgraded from endangered to threatened, while the condition and fate of others are improving as a result of ESA listing and recovery plan implementation. Full recovery of some listed species will inevitably take some time because of factors such as very low population levels, slow reproduction rates, and the persistence of ongoing human-caused threats. It is nevertheless clear that these species would be much worse off without the ESA's protection, if they continued to exist at all. 

The ESA and the agencies that implement the law, the Interior Department's Fish and Wildlife Service (FWS) and the Commerce Department's National Marine Fisheries Service (NMFS), have been as successful as they have because Congress wisely gave federal agencies primary implementation authority. This is not to say that state and local agency participation, state wildlife and water resource policies, and federal-state enforcement partnerships aren't important – in fact, they're critical. Some important ESA success stories have resulted from state and local government input and cooperation with FWS or NMFS protection efforts. 

However, many species aren't confined to one particular state or local area, and helping them recover from steep declines requires a nationwide approach. In addition, some states may be reluctant to commit to needed protective measures as a result of pressures from economic interests whose activities would be constrained by ESA listings. Finally, states are not likely to be able to match the federal government's capacity to engage in the research needed to identify the sources of species threats or to ascertain the nature of necessary protective measures. They also may lack the resources to implement and enforce the ESA, even if they have the will to do so. In these instances, federal implementation of the law serves as a backstop to the exercise of traditional state wildlife management authority, which is largely preserved by the ESA. 

Citizen participation in ESA implementation has also played an important role in promoting the statute's goals. From public comments to listing petitions to citizen suits compelling FWS and/or NMFS to take action to protect endangered species, the American people have been active in efforts to save our nation's wildlife from extinction. 

At the dawn of the modern environmental era, Senator Edmund Muskie of Maine, the principal drafter of many of the nation's most important environmental laws, justified legislation authorizing citizen suits to force agencies to comply with their statutory duties. He recognized that "[t]he concept of compelling bureaucratic agencies to carry out their duties is integral to democratic society. . . .  [A]dministrative failure should not frustrate public policy and . . . citizens should have the right to seek enforcement where administrative agencies fail." (See 1 Comm. on Pub Works, A Legislative History of the Clean Air Amendments of 1970, at 351 (1970).) This rationale supports preserving the ability of concerned citizens to seek judicial assistance in requiring FWS and NMFS to comply with listing-related duties in a timely manner. 

However, the ESA faces significant challenges. Industry and congressional attacks against its very foundations seek to fundamentally undermine the law and render it ineffective. Less directly, Congress has significantly constrained the ability of FWS and NMFS – not to mention state, local, and private industry partners – by chipping away at agency budgets and other crucial resources. 

For more than 20 years, Congress has funded the ESA through annual appropriations at levels inadequate to enable the FWS to comply with its statutory duties in a timely way. At the same time, threats to biological diversity are accelerating due to factors such as climate change and invasive species. This means the agency and its partners are being asked to do more with less. 

Instead of continuing or increasing programs that assist states and private parties in conserving listed species, the congressional majority is focused on cutting or ending these effective initiatives. For example, Congress has balked at reauthorizing the Land and Water Conservation Fund despite overwhelming support from the states. Money from the fund helps state and federal agencies protect habitat for listed species. The House also voted to cut funds for the Conservation Stewardship Program, which, among other things, helps farmers protect biodiversity on their land. 

When industry interests and their allies in Congress complain about things like the supposedly slow pace of delisting endangered and threatened species, it's usually code for wanting to push animals like the gray wolf, the wolverine, and the grizzly bear off the endangered and threatened species list for purely economic reasons. Even if they are genuinely interested in speeding up the pace of recovery for listed species, slashing agency budgets, erecting obstacles to citizen efforts to secure the ESA's protections for species in need, and greasing the wheels of the delisting process without adequate scientific foundation are misguided paths to doing so. 

If FWS, NMFS, and state and local partners had the resources they need to effectively do their jobs and to ensure that species are listed and delisted in a timely fashion, we could build on the ESA's considerable successes. That would allow us to save more species, encourage sustainable economic development, and preserve our natural heritage for many generations to come.

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Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He is a member of the board of directors of the Center for Progressive Reform.

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