The Application of the Endangered Species Act to the Protection of Freshwater Mussels: A Case Study
Biber, Eric, Environmental Law
The Endangered Species Act (ESA or Act) (1) remains one of the most controversial environmental laws in the United States. Supporters depict it as the only legal bulwark against the mass extinction of species in the United States and the destruction of threatened ecosystems essential to the survival of natural biological systems. (2) Opponents depict it as a misguided law that has failed to achieve its objectives of protecting and conserving endangered species, and that has created hostility towards its goals among the private landowners who are crucial to efforts to preserve biodiversity. (3)
This Comment examines the success or failure of the ESA in protecting a particular group of endangered species: freshwater mussels. Freshwater mussels constitute a substantial portion of the species listed as threatened or endangered under the ESA, and moreover, are the most endangered taxonomic group of species that scientists are aware of in the United States. (4) As such, they represent a group that should be a focus of conservation efforts under the Act, if the goal is the preservation of all species, regardless of economic, aesthetic, or social value. Mussels are also a group that has almost been entirely ignored in the legal literature's analysis of the Act, (5) and therefore represent an understudied area in the analysis of the Act's success or failure.
This Comment begins with an overview of the biology and status of freshwater mussels (Part II), and then provides a detailed survey of the current human threats to the survival of freshwater mussel species (Part III). Part IV gives a short overview of the ESA and the tools the Act provides that might be used to protect and restore freshwater mussel species. Part V discusses the current legal and regulatory efforts by the United States Fish and Wildlife Service (the Service or FWS), the federal agency responsible for the application of the ESA to protect freshwater mussels, and discusses the current success of those enforcement and recovery efforts. Part VI summarizes the legal, policy, and biological literature analyzing why the ESA may be unsuccessful. Part VII assesses the conclusions of the legal literature, and discusses possible reasons for the success or failure of the ESA in the context of freshwater mussels. (6)
This case study reveals that, while the ESA has prevented the extinction of most species of freshwater mussels, nonetheless many, if not most, freshwater mussel species remain critically endangered and declining. This Comment concludes that the inability of the ESA to provide for the recovery of freshwater mussel species is due to three factors: 1) the near-impossibility of recovering a species after most of its habitat has been destroyed and its populations eliminated; 2) underlying flaws in the ESA that make it much more difficult to address the threats to endangered freshwater aquatic species; and 3) a persistent and substantial historic bias against funding and enforcement of the ESA to protect freshwater mussel species. To provide for greater protection of freshwater species such as mussels, the ESA may need to adopt provisions similar to that of the Clean Water Act (CWA), (7) or alternatively, the CWA may need to be implemented in a manner that is more protective of endangered species. This case study of freshwater mussels not only reveals some fundamental areas of needed reform for the ESA, but also the broader importance of using environmental laws that have absolute theoretical mandates (such as the ESA's requirement that all species be saved) to ensure that otherwise ignored environmental harms are addressed.
II. BASIC BIOLOGY AND CONSERVATION STATUS OF FRESHWATER MUSSELS
Freshwater mussels are similar to the saltwater or estuary mussels that are familiar to any lover of seafood--they are mollusks, (8) and are protected by a hardened shell made of calcium and other minerals, with an interior soft body that contains all vital organs. …