Endangered Species' Slippery Slope Back to the States: Existing Regulatory Mechanisms and Ongoing Conservation Efforts under the Endangered Species Act
Cassidy, Kevin, Environmental Law
On December 29, 2000, Endangered Species Act (ESA or Act) (1) supporters collectively winced when President-elect George W. Bush nominated Gale Norton to succeed Bruce Babbitt as the Secretary of the Interior. (2) After all, Norton argued before the United States Supreme Court that parts of the ESA were unconstitutional (3) and was a well-known supporter of private property rights movements, (4) a faction often at odds with the ESA. (5) Despite Norton's assurances to Congress during her confirmation hearings that, as Secretary, she would enforce the ESA, (6) it appeared that a weakening of the Act was inevitable.
Ironically, Norton may try to reduce the scope of the ESA by adopting and implementing a policy developed by her predecessors. In June 2000, under the Clinton-Babbitt administration, the United States Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively "listing agencies") proposed a joint draft policy that would permit the Secretary (7) to avoid listing biologically imperiled species under the ESA if state and local conservation efforts to protect those species existed or were planned. (8) If adopted, the proposed policy would formalize a longstanding agency practice of deferring to state and local conservation efforts--even if those efforts are unimplemented, unproven, or voluntary--rather than listing a species under the ESA. (9)
Both the longstanding agency practice and the more recent draft policy are based on two provisions of the ESA--subsections 4(a)(1)(D) (10) and 4(b)(1)(A). (11) Those provisions require the Secreting, in making a listing determination, to consider both the inadequacy of existing regulatory mechanisms (ERMs) and ongoing conservation efforts. (12) Under the listing agencies' interpretation of the Act, state and local conservation efforts can offset other threats to species, such as modification or destruction of habitat, thus bringing the species below the threshold necessary to warrant a federal listing. (13) Rather than providing a boon to species, state and local conservation efforts have almost universally offered false hopes and half measures. As a result, many species that the listing agencies initially declined to list in reliance on those conservation efforts have ultimately been listed, their populations often worse for the delay. (14) Moreover, many species that desperately need the substantive protections that the federal ESA offers remain unlisted because of this policy. (15)
Most courts have disagreed with the listing agencies' interpretation of the Act's listing provisions that allows for consideration of future, unimplemented, or voluntary conservation efforts. (16) As a result, several decisions by the listing agencies not to list species in reliance on state and local conservation efforts have been remanded to the agency for reconsideration. (17) It is not surprising that courts disagree with the listing agencies' overly broad interpretation of what constitutes an "ongoing conservation effort" because a careful reading of the statutory language does not support the agencies' position. (18) Other justifications for the listing agencies' broad construction of ongoing conservation efforts include the principle of federalism, which would, return decision-making power to states and localities, (19) and the difficulty of devising national standards for species' protection. (20) However, Congress carefully considered the federalism question when it enacted the ESA? and chose to satisfy the principle by giving states and localities a voice in management decisions only after the listing decision was made. (21) Moreover, the ESA itself sets out national standards for species protection, which states could incorporate into their conservation efforts. (22)
The Clinton-Babbitt administration viewed this policy as a necessary compromise to protect the ESA. …