Missing the Link: The Importance of Keeping Ecosystems Intact and What the Endangered Species Act Suggests We Do about It
Robbins, Kalyani, Environmental Law
I. INTRODUCTION II. BACKGROUND A. Listing Species Under the ESA B. Defining "Species" to Include "Distinct Population Segments" C. The DPS Policy III. SPECIES INTERACTIVITY AND ECOSYSTEM FUNCTIONING A. While You Were Sleeping B. Waking Up: Scientists Are Analyzing These Data and Providing Good Food for Policy 1. Keystone Species a. Top Predators b. Ecosystem Engineers c. Competitors and Facilitators 2. Species Interactivity on a Continuum IV. THE DPS POLICY MUST BE CHANGED TO CONSIDER A POPULATION'S SIGNIFICANCE TO ITS ECOSYSTEM A. Individual Ecosystem Survival: Why Should We Care? B. What Needs To Be Changed and How C. Why This is Practicable D. Context, and Why the DPS Policy is the Best One for Applying This Science V. THE LAST WORD
The very first goal Congress expressed in the "Purposes" subsection of the Endangered Species Act (1) was "to provide a means whereby the ecosystems upon which threatened and endangered species depend may be conserved." (2) This clear statement, much like the recognition of species' "ecological" value, (3) demonstrates an understanding of the interdependence of species and their ecosystems, as well as a corresponding intent to protect both. Indeed, one cannot be saved without the other.
In spite of how clearly Congress expressed its intent to conserve ecosystems in the text of the Act, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), the agencies charged with administering the Act, claim that they have no authority to do so. (4) Granted, most of the Act is focused on direct species protection via the process of listing certain species for special protections. (5) However, in 1978, Congress amended the Act in a manner that had the potential to fill the void in ecosystem protection by allowing one population of a given species to be separately listed while leaving the rest of that species (perhaps healthy in other regions) unprotected. (6) Species can be of varying value to their ecosystems, which should be treated as an important consideration in protecting individual populations.
The goal of this Article is to combine consideration of the purposes of the Endangered Species Act (ESA) with an understanding of the science of ecosystem functioning in order to promote better policy. Part II of this Article will provide some of the background information needed for a basic understanding of the regulatory framework at issue throughout the Article. Then, in Part III, I will provide a relatively in-depth discussion of the complexities of ecosystem science, in a manner accessible to non-scientists (like myself), in the hope that better understanding will lead to a greater willingness to change policy. Part IV will apply this science to determine how we might best work toward the goals of the ESA, making a case for better protection of ecosystems and suggesting how to go about it. The Article will then conclude with a plea for policy change in light of the previous discussions.
A. lasting Species Under the ESA
The ESA was enacted in 1973 as the first comprehensive U.S. effort to preserve biodiversity. (7) While there are other components to the statute, the one most relevant to this discussion is the process created for listing threatened or endangered species to recieve substantial protections via the various other provisions in the Act. (8) The power to list these species belongs to the Secretary of the Interior and the Secretary of Commerce, who have delegated that power to FWS and NMFS, respectively (collectively "the Services"). (9) Getting on this list is an extremely important achievement because once a species is listed its preservation becomes more important than competing economic interests. (10)
A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range," (11) and it is threatened if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. …