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Sustainability and the Law:
An assessment of the Endangered Species Act

Michael J. Bean
Environmental Defense Fund, 1875 Connecticut Avenue, NW, Washington, DC 20009

In the United States, the Endangered Species Act (ESA) has served-for the last quarter-century as the final safety net against the loss of biological diversity. During that time, the list of legally protected species, subspecies, and populations has grown steadily, and it now numbers more than 1,200 in the United States. The goals of the ESA are to prevent the extinction of these and to recover them to the point where they are no longer in peril. The tools the act provides to achieve these goals are few: a duty of federal agencies to further the conservation of imperiled species and to avoid actions that jeopardize their continued existence, a prohibition against most commercial activities involving imperiled species, and a prohibition against collecting, killing, or otherwise “taking” them. Thus far, these tools have proved sufficient to arrest the decline of only a minority of imperiled species and to improve the status of an even smaller fraction of those. New and more diverse tools to address more effectively the threats to survival of species clearly are needed. These include positive incentives for private landowners and others to restore, enhance, and responsibly manage habitats for imperiled species; mechanisms to initiate conservation efforts toward species before they reach a point of crisis; and tools to broaden the focus of conservation efforts from individual species to assemblages of species in particular natural communities, habitats, or ecosystems. Recent efforts to fashion such tools administratively have offered promising results.

About 25 years ago, the modern ESA did not exist. Indeed, it had not even been conceived. Representative John Dingell was still 2 months away from introducing the bill that, with important changes, eventually would become the

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ESA. The House passed Dingell's bill in only 8 months, by a margin of 390-12. The Senate's action was even speedier. New Jersey's Senator Harrison Williams introduced his bill on 12 June 1973, and the Senate approved it only 6 weeks later, by a vote of 92-0.

In only 8 months, bills were introduced in both houses, hearings were held, committee reports were written, debate was held, near-unanimous votes occurred, and a presidential signature was obtained on a bill that many regard as one of the most far-reaching and important environmental laws ever passed by any legislature in any nation.

How times have changed: The contrast with the situation today could not be sharper. Gridlock over the future of the ESA has nearly paralyzed Congress for several years. Congress last reauthorized the ESA in 1988 and was supposed to have done so again in 1992. It didn't. Not in 1992, 1993, 1994, 1995, 1996, or 1997, either. Only two of the last four Congresses even managed to report a reauthorization bill out of committee. Neither house has debated a reauthorization bill, although they have tried—with some success—to hamstring the endangered-species program by including budget cuts, narrowly targeted overrides, and moratoriums on listing in unrelated legislation.

The near unanimity of congressional opinion that prevailed in 1973 also has vanished. Congress is divided—deeply—over the future of the ESA. When the ESA has been brought up recently in congressional debate—as in recent debates over creation of a National Biological Survey, imposing a moratorium on adding further species to the endangered list, and exempting certain flood-related activities from the ESA's requirements—the debate has been rancorous, bitter, vitriolic, acerbic, and sometimes downright nasty. These divisions in Congress reflect similar divisions in society at large.

When will Congress get on with the business of reauthorizing the ESA? When it does, what will it do? Unfortunately, no one knows the answers to these questions.

Two things can be said with confidence, however. One is that the ESA has been a huge success. The other is that the ESA has been a huge disappointment.

Let us look at the successes first. When the ESA was passed in 1973, fewer than 50 whooping cranes survived in the wild; today, there are four times as many. The American alligator has recovered fully throughout the Southeast. In less than two decades, the bald eagle has increased its nesting population severalfold and its classification has been changed throughout the nation from endangered to threatened. Brown pelicans and peregrine falcons have increased their numbers and expanded their ranges. Numbers of Kemp's ridley sea turtles are increasing on their nesting beaches in Mexico and appear to be increasing in US coastal waters; in 1997, at least nine Kemp's ridley nests were found on the coast of Texas—apparent evidence that the “head-starting” effort begun here two decades ago may succeed yet. The northern Aplomado falcon once again occurs as a breeding species in the United States after an absence of nearly a half-century.

The list of similarly impressive results continues. Gray wolves have been reintroduced successfully into the northern Rockies, and red wolves into North Carolina. Soon, Mexican wolves are expected to be reintroduced into Arizona

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and possibly New Mexico. And in the Grand Canyon, California condors soar overhead, a sight that has not been seen there in a century or more, and one that few thought would be possible when the last handful of wild condors were taken into captivity a decade or so ago.

As encouraging and reassuring as these successes are, they are counterbalanced by a frustrating lack of success and continued decline of many other species. The ESA was not enough to save two species of fish in Texas, the Amistad and San Marcos gambusias; a bird in Florida, the dusky seaside sparrow; or a fish in Maryland, the Maryland darter. All are now apparently extinct. The Attwater's prairie chicken, although included on the first federal list of endangered species in 1967, has suffered a catastrophic decline, despite three decades of nominal protection, from more than 2,400 wild birds to only 42 in 1997. For the nation as a whole, 33% of the species that the ESA protects are declining.

How does one explain these disappointing results? Many observers offer one or more of the following explanations: the Fish and Wildlife Service does not have enough money, does not have enough backbone, and suffers from too much political meddling. If these are the sources of the problem, then the solutions are easy: give the service more money, stiffen its backbone, and halt the political meddling. It is wise to keep in mind, however, what H.L. Mencken (as quoted in Raspberry 1997) said of easy solutions: “There is always an easy solution to every human problem—neat, plausible, and wrong.” In the case of the ESA, the solutions just enumerated are not so much wrong as they are incomplete. Yes, the service is woefully short of the financial and human resources it needs to do the job that Congress has assigned it. Yes, the Service often shows a remarkable propensity to cave in to pressure. And yes, that propensity to cave in has invited far too much political meddling in congressional administration of the ESA. Yet, although each of these assertions is undoubtedly correct, they do not provide a satisfactory explanation of the disappointments of the ESA.

What is missing from these explanations is the fact that the ESA does not give the Fish and Wildlife Service all the tools that it needs to conserve endangered species, particularly in states like Texas, Florida, and Hawaii, where a great many endangered species occur and where most of the land and most of the habitat that supports those species are privately owned. When dealing with private lands, the ESA gives the service only two tools. One is the authority to tap the Land and Water Conservation Fund to acquire land, and the other is the prohibition in section 9 against the “taking” of endangered species. The service long has interpreted this prohibition to extend to modification of habitat. When the Supreme Court in 1995 upheld that interpretation in the Sweet Home case, most conservationists breathed a sigh of relief.

The “taking” prohibition of section 9 can serve as a powerful hammer. The problem, however, is that many of the causes of decline of endangered species are not nails. Against them, a hammer is ineffectual. Contributing to the decline of most species on the threatened and endangered lists are the absence of natural disturbances like fire, the presence of introduced species, or both. Against these pervasive threats, the prohibition against taking endangered species or their habitats is largely ineffectual. Moreover, the prohibition is ill suited to restoring

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vanished habitats, reconnecting the pieces on a highly fragmented landscape, or countering the random events that drive isolated small populations into extinction. For species too, the world often ends not with a bang, but with a whimper.

After more than two decades, the weaknesses of the ESA are as evident as its strengths. One of its weaknesses is that it has led to a variety of unfortunate and unintended consequences. For example, as long as landowners believe that they will incur added regulatory restrictions on the use of their land if they do things that either attract endangered species or increase the number of such species on it, they are unlikely to do those things. Indeed, to avoid the possibility of such restrictions, landowners sometimes manage their land in ways that render its use by endangered species highly unlikely. That was the clear between-the-lines message of the National Association of Home Builders's recently published Developer's Guide to Endangered Species Regulation (Sauls 1996). In a chapter called “Practical Tips for Developers,” the following frank advice appears:

The highest level of assurance that a property owner will not face an ESA issue is to maintain the property in a condition such that protected species cannot occupy the property. Agricultural farming, denuding of property, and managing vegetation in ways that prevent the presence of such species are often employed in areas where ESA conflicts are known to occur. This is referred to as the “scorched earth” technique. The scorched earth management practice is highly controversial, and its legality may vary depending upon the state or local governing laws. But developers should be aware of it as a means employed in several areas of the country to avoid ESA conflicts.

Such practices are by no means confined to developers. In the Southeast, forestry consultants reportedly often advise owners of pine woodlands to cut their trees before they are old enough to serve as foraging habitat for red-cockaded woodpeckers. In the Northwest, commercial timber companies shorten harvest rotations beyond what otherwise would be economically rational to avoid having northern spotted owls take up residence on their property. In California's central valley, farmers plow fallow fields to prevent native vegetation and endangered species from reoccupying the fields. Sometimes, even the Fish and Wildlife Service finds itself advising landowners to avoid creating habitat for endangered species. Consider the following message I received from an environmentalist in California who had been promoting a habitat-enhancement effort on private land:

Picture this: We are standing in a field, looking at a sediment basin that tends to stay wet part of the year and thus vegetate. The [Fish and Wildlife Service] biologist suggests that we remove vegetation from the basins to avoid creating habitat for and attracting red-legged frogs. Why? you ask. Why indeed; after all, the [service] is supposed to want habitat. The answer to this million-dollar question is that if we attract [threatened and endangered] species, then the [service] would slap some additional constraints on all the projects. So, in an effort to be helpful, [the service encouraged us] to avoid creating habitat. [Sigh]

These examples only demonstrate that the ESA is no exception to the common phenomenon of regulatory programs' spawning ingenious strategies on the part of the regulated parties to frustrate the regulatory purpose without technically

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violating the law. None of these actions violates the ESA, yet all of them virtually ensure that endangered species will not benefit.

This problem was made abundantly clear to me and my colleagues at the Environmental Defense Fund (EDF) while we were working to conserve the redcockaded woodpecker in an area of North Carolina called the Sandhills. The Sandhills supports the second-largest remaining population of red-cockaded woodpeckers in the country; most of them are on Fort Bragg army base, but many are on nearby private lands. The numbers of these woodpeckers on private lands have declined steadily over the last two decades. Much of that decline has resulted from the lack of control of the hardwood understory, a task that Nature formerly performed with regular fires. An extensive system of roads now means that fires caused by lightning strikes will burn only as far as the next road and not cover the thousands of acres that formerly would have burned.

If landowners in the Sandhills would control the hardwood understory aggressively, rehabilitate some of the abandoned nesting cavities where woodpeckers once persisted for decades, install artificial cavities in suitably sized pines, let stands of pines that are nearly old enough to provide foraging habitat remain uncut for a few more decades, and protect those remaining very old trees that could serve as cavity trees, then the bird would be much better off there. The problem was that few landowners in the area could be persuaded to do these things, precisely because they feared the regulatory restrictions that would accompany the woodpeckers that would benefit from these practices. The result was a continuing, steady decline in the local population of woodpeckers, despite their nominal protection as an endangered species.

EDF decided to try something completely different. With generous support from the National Fish and Wildlife Foundation, we devised a new form of habitat-conservation plan. Unlike habitat-conservation plans used elsewhere, this one was intended to create, restore, and enhance habitat for endangered species. No immediate development activity or timber harvest that would result in incidental taking of any endangered species was anticipated. Incidental taking was authorized under this plan, but only in the future, only in those habitats that had been created, restored, or enhanced pursuant to the plan, and only if the participating landowner acknowledged and agreed not to diminish the baseline conditions that existed when he or she enrolled in the plan.

We called this idea “safe harbor”. In return for a definite commitment to carry out specific management actions that were expected to benefit the woodpecker, the landowner was given protection—a safe harbor—from added regulatory restrictions beyond those which already applied to the land on the day he or she entered into the agreement. The aim of the Sandhills safe-harbor program was to accomplish something that no other strategy of the ESA had accomplished there: to halt and reverse the decline of red-cockaded woodpeckers and their habitat on privately owned land. We bet that enough landowners would be willing to beneficially manage enough habitat area for a long-enough period that we could accomplish a substantial improvement in the situation that would exist otherwise.

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To date, the safe-harbor program in the North Carolina Sandhills has been received very well by landowners. Two dozen of them now are actively managing 25,000 acres of forest land for the benefit of an endangered species. More important, the benefits of this approach have been recognized by others, who are adapting it to their own circumstances. For example, the Peregrine Fund seized on the safe-harbor idea to expand dramatically a reintroduction effort for the northern Aplomado falcon. Along the Texas coast, coastal prairie habitat is being restored by ranchers and other landowners in a safe-harbor program for the Attwater's prairie chicken. In South Carolina, a statewide safe-harbor program for the redcockaded woodpecker was launched in 1998. Even before it officially began, landowners signaled their intention to enroll some 80,000 acres of forest land in the program.

Safe-harbor agreements are not a panacea. For some species, they can contribute substantial benefits, both to species that have not benefited much from other strategies and to the attitudes of landowners toward the conservation of endangered species. Ultimately, however, what will be needed is a set of meaningful economic incentives to encourage landowners to carry out more broadly the active measures of management that are essential if the goal of recovering endangered species is to be accomplished (Eisner 1995). Cost-sharing programs, tax incentives, and creative contractual programs like those now being tried in Texas can add a new set of tools to the endangered-species toolbox. Without those new tools, the opportunity to reverse the slide toward extinction of many of our plant and animal species will be lost.

It is also necessary to begin directing attention and resources to declining species much earlier. By the time many species receive the nominal protection of the ESA, their numbers are already so reduced that their eventual recovery will be costly, protracted, and difficult, if it can be accomplished at all (Wilcove 1993). Despite the clear need for earlier action, the ESA has discouraged it in some respects. For much the same reason that landowners sometimes seek to manage their land so as not to attract endangered species to it, some landowners also seek to eliminate from their land species that have been identified as likely candidates for future addition to the endangered list. If they act quickly enough, before the government can accomplish the listing, they can avoid any restriction on the use of their land. Ironically, the identification of a species as a possible candidate for future listing can therefore accelerate the very factors that threaten it. To change this unfortunate dynamic, landowners need to be given clear incentives to help prevent species from being listed in the first place. One recently initiated approach is to authorize agreements between the government and landowners under which the landowner commits to do something that reduces threats to the species, in return for which the landowner receives an assurance that his or her obligations toward the species will be fixed for the duration of the agreement by the terms of the agreement. These “candidate-conservation agreements” are only now beginning to be used and offer the potential for a much more salubrious outcome than often has been achieved for declining species.

Finally, as the list of endangered species continues to grow, it has become increasingly clear that we need strategies for conservation that can address the

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needs of multiple species simultaneously. Such strategies can serve a wide array of interests. For the government, such strategies offer a means of more effectively stretching scarce funds for conservation, particularly because of the tendency of endangered species to be concentrated in a relatively few areas (Dobson 1997). For landowners, instead of having to deal seriatim with a steady parade of newly listed species, such strategies can increase certainty and reduce the cost of compliance. For the species themselves, strategies to maintain or restore the habitats and ecological functions necessary for the survival of natural communities likely offer a better hope of lasting success than do strategies that rely on artificial manipulation to sustain a species that is no longer capable of survival on its own. The continuing experience with “natural-community-conservation planning” under the ESA illustrates both the potential for good and the practical difficulty of taking a broader approach. The lessons now being learned from that experience are likely to guide the effort to balance goals of conservation with other societal goals in the coming decades.

References

Dobson AP, Rodriguez JP, Roberts WM, Wilcove DS. 1997. Geographic distribution of endangered species in the United States. Science 275:550–3.

Eisner T, Lubchenco J, Wilson EO, Wilcove DS, Bean MJ. 1995. Building a scientifically sound policy for protecting endangered species. Science 268:1231–2.

Raspberry W. 1997. Neat, plausible—and right on. Quote from HL Menken. The Washington Post. 1Sep97:A21.

Sauls EG. 1996. Practical tips for builders. In: National Association of Home Builders developers guide to endangered species regulation. Washington DC: Home Builder Press. 107–14.

Wilcove DS, McMillan M, Winston, KC. 1993. What exactly is an endangered species? an analysis of the US endangered species list: 1985–1991. Conserv Biol 7:87–93.