Endangered Species Act Lessons over 30 Years, and the Legacy of the Snail Darter, a Small Fish in a Pork Barrel
Plater, Zygmunt J. B., Environmental Law
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. …