Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act

By Petersen, Shannon | Environmental Law, Summer 1999 | Go to article overview

Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act


Petersen, Shannon, Environmental Law


The last; word of ignorance is the man who says of an animal or plant: `What good is it?' ... If the biota, in the course of aeons, has built something we like but do not understand, then who but a fool would discard seemingly useless parts? To keep every cog and wheel is the first precaution of intelligent tinkering.(1)

--Aldo Leopold

I would be in favor of undertaking tremendous costs to preserve the bald eagle, and other major species, but that kind of effort is out of proportion to the value of the woundfin minnow, or the snail darter, or the lousewort, or the waterbug, or many others that we are attempting to protect.(2)

--Senator Jake Garn (R-Utah)

I. INTRODUCTION

Today, the Endangered Species Act of 1973 (ESA)(3) stands among the strongest of environmental laws. The U.S. Supreme Court has described it as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."(4) The ESA is also unique among environmental laws because its link to the protection of human health and quality of life is most tenuous. For this reason, historian Roderick Nash has called it "the strongest American legal expression to date of environmental ethics."(5) Secretary of the Interior Bruce Babbitt describes the ESA as "undeniably the most innovative, wide-reaching, and successful environmental law which has been enacted in the last quarter century."(6) But while the ESA may be the "crown jewel of the nation's environmental laws,"(7) it is also the "pit bull of environmental laws."(8)

The power of the ESA rests primarily in three sections: section 4, section 7, and section 9.(9) Together, these sections form the substantive foundation of the Act, and the source of most controversy over the ESA today. The ESA also includes a citizen suit provision that has served as a powerful tool for environmental groups to expand and enforce the powers in sections 4, 7, and 9.(10) Indeed, litigation has played a crucial role in expanding the scope of the Act and provoking controversy. Although many other sections of the Act provide significant protection for species, these three sections are the most important.

Section 4 instructs the Secretaries of the Interior and Commerce to list species as either threatened or endangered "solely on the basis of the best scientific and commercial data available.(11) The Secretary of the Interior, responsible for avian, terrestrial, and freshwater species, has delegated this power to the Fish and Wildlife Service (FWS), while the Secretary of Commerce, responsible for marine and anadromous species, has delegated the power to the National Marine Fisheries Service.(12) The ESA defines the term "species" to include subspecies of fish or wildlife or plants, and distinct population segments of vertebrate fish or wildlife, that interbreed when mature.(13) Endangered species are those in danger of extinction throughout all or a significant portion of their range, while threatened species are those likely to become endangered in the near future.(14) Species eligible for listing include all plants, mammals, fish, birds, amphibians, reptiles, mollusks, crustaceans, arthropods, or other invertebrates.(15) Section 4 precludes any consideration of economic factors when determining whether or not a species should be listed as threatened or endangered.(16)

Labeled "Interagency Cooperation," section 7 commands federal agencies not to take any action that might harm a listed species. Specifically, it directs all federal agencies to consult with the Secretary to ensure that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species."(17) Originally twelve lines long, this section has since expanded to several pages, beginning with a series of amendments starting in 1978.(18) The power of section 7 came not from amendments, however, but from the judiciary. …

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Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act
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