What do the American alligator, Aleutian Canada goose, Loch Lomond coyote thistle, and Oregon silverspot butterfly have in common? They are protected by the Endangered Species Act (ESA).
The American alligator, found in the Southeastern United States, has completely recovered, although it remains listed because it looks similar to the still endangered American crocodile. Only around 300 Aleutian Canada geese remained when they were listed as endangered in 1967; today there are almost 14,000 and they have been reclassified as threatened. The California Department of Fish and Game purchased and has begun to rehabilitate the only habitat where the coyote thistle occurs, and the plant has increased in density. Habitat management has secured three of the six silverspot butterfly populations.
The protection afforded by the ESA currently extends to over 1,250 species, and most of them have completely recovered, partially recovered, had their habitat protected, or had their populations stabilized or increased. In fact, around 64 percent of the mammals and 68 percent of the bird species listed since 1973 (the year the ESA became law) were classified as "improving and stable" by 1994. As importantly, millions of acres of forests, beaches, and wetlands -- those species' essential habitats -- have been protected from degradation and development.
That is because the ESA requires (with very few exceptions) the protection of areas "essential to the conservation of the species." This critical habitat, as it is called, includes areas that are not currently inhabited by the species but necessary to their recovery. Obviously, it is impossible to protect endangered and threatened species without preserving their environment, especially now, when continued growth and development has made habitat loss the primary threat to most of them.
Because it preserves plants, animals, and the ecosystems they depend on, the ESA is perhaps the most powerful and most significant environmental legislation ever passed in the United States. In some ways, it has also been the most successful, despite the fact that its potential has not even been tapped due to decades of intransigence.
The first hurdle an endangered species faces is getting listed -- it must be added to the official list of endangered and threatened species before it receives federal protection. Anyone can petition the government to list a species as either endangered or threatened, and the decision to list a species is supposed to be based solely on science and take no more than 27 months. In reality, many species sit on the "candidate" list for years due to political pressure or funding constraints. For example, the Florida black bear has waited on the candidate list since 1992. For the 256 candidate species that are still waiting as of August 2003, the effectiveness of the ESA may be scant comfort that comes too late.
Despite the effectiveness of the critical habitat provision, even when an endangered species does get listed, there's still only a small chance that the critical habitat necessary to its survival will still be protected. The U.S. Fish and Wildlife Service (FWS) itself has noted that "only 113 or 9% of the 1179 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat," even though the ESA requires (with only rare exceptions) the designation of critical habitat for all endangered and threatened species. Reversing the intent of Congress, the FWS has concluded that setting aside critical habitat is "not prudent" for 228 species of the 256 it has listed since April 1996.
Instead of working to make the ESA more effective, the Bush administration is intent upon stealthily dismantling it with a thousand cuts. A partial list of this administrations attacks on the ESA include:
- Inserting a small paragraph deep within the President's FY 2002 budget known as the "Extinction Rider" that would negate the rights of citizens to sue to protect endangered species -- almost all the species that have made it onto the ESA lists have done so because of citizen involvement -- and give the Secretary of the Interior complete discretion over whether to list species as threatened or endangered.
- In a clear attack on the ESA, the administration has deliberately provided insufficient funding for the FWS to list species. The FWS requested $24 million per year for 5 years and was provided $8.5 million in 2002.
- Exempted the Environmental Protection Agency from having to consult with the FWS and the National Marine Fisheries Service on the effect its decisions on pesticide use would have on endangered species. One of the most successful parts of the ESA is a provision requiring a review of federal agency actions to make sure our tax dollars are not spent on harming endangered species.
- Instituted new policies to avoid and minimize the designation of critical habitat. These include trying to circumvent court orders, extending anti-critical habitat loopholes, and inserting legal disclaimers that encourage and support industry lawsuits. In addition, the Bush administration is the only one in history never to have designated a single critical habitat except under court order. In fact, the Bush administration has reduced the size of 92 percent of FWS critical habitat proposals by an average of 76 percent.
- Limited the ability of scientists to use the best available science to save endangered species. Nineteen of the largest environmental groups in the nation likened this to "requiring a doctor to attempt to diagnose cancer with only a stethoscope" in a letter to Congress.
- Suspended parts of the ESA that require the U.S. government to act in a timely manner in dealing with vanishing species, including a provision that requires the designation of critical habitat at the time a species is listed.
In spite of the historic opposition of development interests and foot-dragging by the U.S. Fish and Wildlife Service, there is no doubt that our world would be far different, and far more barren, if the ESA did not exist.
The ESA works, often under court order, to preserve not only large and charismatic species -- American bison, grizzly bears, and bald eagles -- but those that are small, equally unique, and beautiful, such as southwestern willow flycatchers and small whorled pogonias. The far-sighted vision of the Endangered Species Act is that all these species will not merely survive in the sterile confines of zoos but thrive in the natural, wild environments where they evolved over millions of years. Earthjustice will continue to fight for the continued survival and full realization of this splendid and inspiring idea.
As always, I encourage you to send me your comments and questions, which should be addressed to buckparker@earthjustice.org.
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