I. THE ENDANGERED SPECIES ACT ... DISTINCTIVELY DIFFERENT II. THE ESA'S POLITICAL CONTEXT III. THE LITTLE FISH THAT LAUNCHED THE ESA ON ITS TEMPEST-TOSSED COURSE IV. SOME THINGS HAVE CHANGED A LOT IN THIRTY YEARS A. Section 7 of the ESA B. ESA's Section 9 and Section 10 C. Other Changes D. The Big Change: Endangered Species Have Become a Strategic Political Target of Opportunity V. SOME THINGS THAT HAVE REMAINED THE SAME VI. CONCLUSION
I. THE ENDANGERED SPECIES ACT ... DISTINCTIVELY DIFFERENT
Why is it--amidst the flood of environmental statutes that poured into the law books and national consciousness in the remarkable decade of the 1970s(1)--that the Endangered Species Act of 1973 (ESA) (2) stands out as quite uniquely different? The ESA, celebrated and probed in this Thirtieth Anniversary Symposium, has always stood apart from the rest, sharing only superficial similarities with its distinguished statutory brethren.
The ESA marched into the law books relatively early in the parade as the fourth major environmental statute, after the National Environmental Policy Act (NEPA), (3) the Clean Air Act (CAA), (4) and the Clean Water Act (CWA). (5) Like NEPA, the ESA was drafted in generalized policy terms, reflecting politicians' opportunistic reaction to the public's strong feelings of the moment, and, like NEPA's litigable enforcement provisions, the ESA's teeth similarly lay hidden within its prose, unrecognized by the majority of legislators. (6) Very much unlike NEPA, however, the prohibitions within the ESA's section 7 and section 9 turned out to be substantive, not circumventable by paperwork and procedure.
Like the CAA and the CWA, the ESA on its face purported to be merely an "amendment" of a prior-existing federal law but was dramatically more potent than its ineffectual statutory predecessors, creating an innovative and enforceable federal regime operating on a plane above traditional state administration.
Unlike the "cooperative federalism" of the two huge pollution regulatory systems, however, the ESA in practice has been virtually a federal domain, with relatively little state participation. Quite unlike the comprehensive "command-and-control" directive structure of the CAA and CWA regulatory regimes, the ESA's enforcement structure has developed only slowly over time and has never been systematic or inexorable. Its regulatory enforcement has come primarily at the instance of citizen initiatives in courts and the administrative process rather than by proactive programmatic agency effort.
And the scope of the ESA's regulatory system is geographically quite unlike the other major federal environmental laws. No administrative agency map lays out a regulatory grid of ESA implementation structures across the United States. Instead, ESA implementation is typically citizen-prompted and opportunistic, most often focusing attention on one small place, one discrete species or less, (7) one tiny slice of the vast diversity of species that exist on the planet. The narrative of endangered species case law often looks at just one highly localized habitat place--one creek, one spring, one cave, one valley. But by their very existence as endangered species, and by the statutory protections given them by the ESA, in systemic terms these isolated endangered species ultimately have a remarkable capacity to magnify and complicate the contexts in which they occur.
This Essay briefly surveys the ESA's differentness, its special political context, the citizen suit of great notoriety that fired up the ESA's political hotseat back in 1975, and what has changed and what has not in the years since that first eco-legal outburst.
Endangered species cases inevitably resonate upon entire ecosystems, and beyond ecosystems upon the human behaviors and human values intimately linked to the species and their habitats, then further still to political ecosystems, revealing and reflecting the contending forces that do battle within our intricate processes of democratic governance. Endangered species and the legal confrontations they create thus play out on a far broader stage than the little ecological niches that they occupy scientifically.
II. THE ESA's POLITICAL CONTEXT
The ESA's political context, moreover, has been as distinctively different as its legal profile. In its creation and subsequent evolution over the past thirty years, the ESA has been a bemusing combination on one hand of high human principle and scientific sophistication, and on the other of quite prosaic political happenstance and infighting. The Act is a descendant of centuries of philosophical and cultural recognitions about the role of human society in the context of the natural world, dating back to public trust principles in the era of Emperor Justinian and even earlier. (8) The ESA is an emanation of the Convention on International Trade and Endangered Species (CITES), (9) often regarded as the single most effective international convention ever ratified by the global community, but goes far beyond CITES. The U.S. roots of the Act can be found in Earth Day 1970 and President Richard Nixon's unprecedented initial willingness to sign environmental statutes, motivated by lingering respect for early twentieth century Republican conservationism and a very pragmatic recognition of environmentalism's high public opinion polling results. In its actual legislative promulgation, the ESA's action provisions were formulated in a process of legislative obscurity by a small group of scientists and legislative activists (including Symposium speaker Dr. Gerard Bertrand) who saw a need and an opportunity for more effective protections and went about building them into the nooks and crannies of an otherwise rather innocuous and generalized regulatory law focused on poaching and trade restrictions.
The result of this process was on its face a bland and rambling statute, but lurking latent within its paragraphs were section 7, which contains the "no jeopardy" and "no destruction of critical habitat" provisions, and section 9's prohibition on "take" of endangered species. The drafters of the statute knew the potential functional importance of these provisions, and inserted strategic pieces of reinforcing legislative history into the Act's congressional process. For more than a year after the ESA was passed, however, it lay relatively dormant in the statute books, as unremarked upon as it seemed unremarkable.
The ESA, however, quickly became intensely and excruciatingly political, a pitched battleground for some of the most aggressive forces in modern politics. If this were a conference on NEPA, air pollution, or water pollution, for instance, there would not be, hanging in the background, the threat that the basic statute itself may be targeted for rescission or evisceration. After a few years of such attempts against NEPA, that statute assumed the status of apple pie and motherhood. Only the ESA is still regularly subjected to plenary denunciations on the floor of Congress; only the ESA has not had its funding reauthorized since 1988; only the ESA was hit by a sweeping one-year listing moratorium. (10) It was the high profile ESA case of the northern spotted owl (Strix occidentalis caurina) that got hit by a rider practically eliminating the courts' jurisdiction to block timber sales in its critical habitat. (11) It is the ESA that has sustained amendments undermining its fundamental goal--species recovery--and granting broad exemptions to the military. (12) The CAA, CWA, and NEPA do hot confront industry-based lobbying coalitions overtly dedicated to their repeal or neutralization, but the ESA faces two of them. (13) And I would propose that political criticism orchestrated against the ESA often has a much broader ultimate target, using endangered species as a stalking horse to impose political limitations on environmental regulation in other fields as well. This political hullabaloo all started with a little fish.
III. THE LITTLE FISH THAT LAUNCHED THE ESA ON ITS TEMPEST-TOSSED COURSE
Participants in this Symposium probably know why I am here, at the threshold of an array of real experts who will present significant probing analyses of the ESA in theory and practice. It is because thirty years ago I had the dumb luck to have the first big case under the ESA walk into my classroom, ultimately carrying my students and me through six long years of legal maneuvers through federal agencies, trial court hearings, appellate arguments in the Sixth Circuit and the United States Supreme Court, and on into the marble jungles of the halls of Congress and beyond. Representing the fish and a coalition of farmers, sportsmen, environmentalists, several parts of the Cherokee Nation, and other citizens, we won an injunction against the last, most marginal dam of the Tennessee Valley Authority (TVA); successfully defended the injunction in the Supreme Court and Congress; and won a unanimous verdict on the rational economics of out environmental case in the first-ever God Squad tribunal. (By that time we had "a project that is 95 percent complete, and if one takes just the cost of finishing it against the [total] benefits, and does it properly, it still doesn't pay!") (14) Victory. And then we lost the river and most of the fish's remaining natural population to a late-night, pork barrel rider on an appropriations bill that a putatively conservationist president refused to veto. (15)
The case was Hiram Hill et al. v. Tennessee Valley Authority (16) (hereinafter TVA v. Hill)--an ESA citizen enforcement action brought on behalf of the little endangered snail darter fish, Percina tanasi, against the Tennessee Valley Authority's final dam, the Tellico Dam on the Little Tennessee River. It was an extraordinary story of a species, a place, and hundreds of citizens confronting a monolithic federal pork barrel establishment. It also became quite an extraordinary legal marker, not only in the development of endangered species law but of environmental law generally as well. (17)
Let me assure you that the snail darter's litigation successes were not attributable to great lawyering, but rather to the environmental merits of the factual case and the legal merits of an …