Academic journal article Duke Environmental Law & Policy Forum

Keeping the Endangered Species Act Relevant

Academic journal article Duke Environmental Law & Policy Forum

Keeping the Endangered Species Act Relevant

Article excerpt

ABSTRACT

The Endangered Species Act (ESA) has long been the workhorse of species protection in contexts for which a species-specific approach can effectively be employed to address discrete human-induced threats that have straightforward causal connections to the decline of a species, such as clearing of occupied habitat for development or damming of a river. Its resounding success there, however, has led to the misperception that it can duplicate that record anywhere and for any reason a species is at risk. Yet, is the statute adaptable to the sprawling, sometimes global, phenomena that are wearing down our environmental fabric on landscape scales through complex causal mechanisms? For example, can the ESA effectively be used to combat climate change by regulating greenhouse gas emissions, to combat the impacts of urbanization by mandating green buildings, or to mitigate ecological degradation by demanding that resource users take into account the values of natural capital and ecosystem services? This article suggests that it would be unwise to push the ESA in that direction, but that the ESA nonetheless has a supporting role to play in the development of policies designed to address those problems. In particular, the ESA should be focused toward consolidating its core power to arrest the conversion of intact habitat to urban land uses, and from there it should be used to leverage its habitat protection function to promote policies responding to climate change, urban impacts, ecological degradation, and other ecological problems characterized by complex, large-scale, indirect causal mechanisms.

I. INTRODUCTION

At a time when climate change, the impacts of expanding urbanization, and the deterioration of ecological systems threaten to push an ever-growing number of species into dire conditions, (1) it may seem preposterous to suggest, as the title of this article does, that the Endangered Species Act (ESA) (2) could be in danger of becoming irrelevant. But the question is not whether a policy aimed toward managing the species imperilment problem is relevant--it appears we will need one in the Obama Administration and well into the future (3)--but rather, whether the ESA in particular is well-positioned to address the collection of social, economic, and environmental problems that seem most likely to present problems for species in the foreseeable future. The ESA has long been the workhorse of species protection in contexts for which a species-specific approach can effectively be employed to address discrete human-induced threats that have straightforward causal connections to the decline of a species, such as clearing of occupied habitat for development or damming of a river. (4) Yet, is the statute adaptable to the sprawling, sometimes global, phenomena that are wearing down our environmental fabric on landscape scales through complex causal mechanisms? Many seem to hope so, (5) but I have my doubts about whether trying to move in this direction makes the best use of the ESA in the long run.

Consider, for example, three policy trends that have taken center stage as offering traction on the problem set just described: (1) greenhouse gas emission regulation to respond to climate change, (6) (2) the promotion of green building design to respond to the impacts of urban development, (7) and (3) the integration of ecosystem service and natural capital values into environmental decision-making to respond to unsustainable ecological resource uses. (8) Because the problems that have motivated these policy trends present clear and substantial threats to species, (9) one might reasonably assume that the ESA could be aggressively employed to put these policies into motion. But that is not nearly as firm a case as it may seem. This article explores why, and offers an alternative strategy for the Obama Administration's ESA implementation.

Part II of the article identifies the practical limits the ESA faces when its impressive regulatory power (10) is aimed at problems like climate change, urbanization, and ecological fragmentation. …

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