Academic journal article Environmental Law

The Endangered Species Act: Time for a New Approach?

Academic journal article Environmental Law

The Endangered Species Act: Time for a New Approach?

Article excerpt

I. INTRODUCTION

The enactment of the Endangered Species Act of 1973 (ESA),(1) according to the United States Supreme Court reflected "a conscious decision by Congress to give endangered species priority over the |primary missions' of federal agencies" and to prevent the destruction of such species "whatever the cost."(2) Since its passage, however, the ESA has become the center of bitter debate among environmentalists, farmers, resource users, and landowners. The ESA's most ardent supporters characterize the ESA as "the strongest legislation ever devised for the protection of nonhuman species"(3) and an "environmental jewel."(4) Its fiercest opponents revile the ESA as the product of extremists who put wilderness protection and the rights of endangered animals before the welfare of humans.(5) Almost everyone agrees, however, that the ESA can be improved, and in 1994, the reauthorization of the ESA will be in the forefront of the congressional agenda.(6) This article considers some of the potential reforms by examining four approaches contained in the bills contending to become the cornerstone for reauthorization.

Section Il begins by explaining the basic provisions of the ESA. Section III details some of the criticisms surrounding the ESA. Section IV then describes the various bills and offers a critique of their various strengths and weaknesses. The final section suggests a direction Congress should follow in reauthorizing the ESA.

II. THE OPERATION OF THE ESA

Having a basic understanding of the ESA is essential to evaluating the proposals for its reauthorization.(7) The fundamental purpose of the ESA is to protect species from extinction and conserve the ecosystems on which they depend.(8) The ESA's triggering mechanism is the listing process(9) which classifies at-risk species into one of two categories: threatened(10) or endangered.(11) The listing process also includes designation of "critical habitat"(12) and development and implementation of recovery plans.(13) Once a species has been listed, the ESA prohibits any taking, possession, or sale of that species.(14) Additionally, federal agencies must ensure that their actions do not "jeopardize the continued existence of any endangered or threatened species" or adversely affect critical habitat.(15) The ESA provides only a limited exemption process for federal projects that jeopardize a listed species.(16)

A. Listing of Species

The Secretary of the Interior, acting through the Fish and Wildlife Service (FWS), handles listings for all terrestrial species, and the Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS), lists marine species.(17) A species is listed as "endangered" when the Secretary finds that the species is "in danger of extinction throughout all or a significant part of its range."(18) The Secretary lists a species as "threatened" when it is likely to become endangered in the foreseeable future.(19) Finally, a species may be treated as an endangered or threatened species, even though it is not listed, based on its similarity to a listed species.(20)

Listing of a species may be initiated by the agency itself or by a private party.(21) When a private party petitions for a species to be listed, the appropriate agency has ninety days to determine whether the petitioners have presented "substantial information" to support listing, and if so, the agency has a year to decide how and when it will proceed.(22) Within one year following publication of the proposed regulation, the Secretary must promulgate a rule, request a one-time only six-month extension, or publish a notice of withdrawal of the proposed rule.(23)

In determining whether to list a species as threatened or endangered, the Secretary may consider only five statutory criteria:

(1) the present or threatened destruction, modification,

or curtailment of its range or habitat;

(2) overutilization for commercial, recreational, scientific,

or educational purposes;

(3) disease or predation;

(4) the inadequacy of existing regulatory mechanisms; or

(5) other natural or manmade factors affecting its continued

existence. …

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