Federal V. State Effectiveness: An Analysis of the Endangered Species Act and Current Potential Attempts at Reform

By Primo, Nicholas | Pepperdine Policy Review, January 1, 2014 | Go to article overview

Federal V. State Effectiveness: An Analysis of the Endangered Species Act and Current Potential Attempts at Reform


Primo, Nicholas, Pepperdine Policy Review


Introduction

On November 19, 2013, Senators Rand Paul of Kentucky and Dean Heller of Nevada, along with Representative Mark Amodei of Nevada sent out a press release describing a new bill they had authored to reform the Endangered Species Act of 1973 (ESA) (Paul, 2013). In it, the authors described their hope to update the very important law that had for decades been the federal response to preserving and protecting wildlife and plant species across the country from extinction. This new law, titled the Endangered Species Management Self-Determination Act (ESMSDA), would, according to Senator Paul, "better protect endangered species by allowing a more tailored response as implemented by the states" (Paul, 2013, para. 2). This state-oriented approach to protecting endangered species, rather than the current approach that relies on the federal government through the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), would attempt to minimize federal bureaucratic oversight and replace it with localized oversight instead. Such removal of "red tape" would leave, "state governments better equipped to manage, regulate, develop, and implement recovery plans for their critical habitats" (Paul, 2013, para. 2). Though the likelihood of the law's passage in the politically charged Senate of the 113th U.S. Congress is low in its current form, it has the potential to be debated and revised, becoming one of the first major attempts at updating the crucial U.S. environmental policy in decades.

However, questions remain over whether or not this new bill would actually reform the ESA to the betterment of both effective policy implementation and, more importantly, species protection. Many environmentalists have seen this move by members of Congress as yet another attempt in a long history of attempts to diminish the scope and power of the ESA. This, they fear, will weaken policies in various regions across the country with threatened species, causing extinctions and the diminishment of the biodiversity and species variation of the nation. Yet, the supporters of the new bill see it as a much needed step towards removing the enormous bureaucratic system out of the way of local policymaking strategies that better understand the environment within their own state. Moreover, state governments could and would respect the manifold issues and interests that motivate their constituents, especially those whose land or water property is at risk due to the protection of the threatened species. Both environmentalists and state reformists seek to control the act of making policy geared toward the protection and recovery of endangered species. Both do so for very different goals, and very important values.

This article will analyze the original 1973 ESA, followed by an analysis of the ESMSDA currently being considered as a reforming addition to the original bill. It will discuss the various strengths and weaknesses of both bills in the hopes of gleaning which approach, federal-oriented or state-oriented policymaking, is ultimately more effective at implementing regulations that not only benefit American citizens, but the many endangered species the law was created to protect. Through this discussion, the article will discuss issues of federal versus state authority, as well as which is more effective at showing results. It will discuss the role of science in each and where and how such science is important to the process overall. Ultimately, the article argues that the original law is still the most effective form of endangered species environmental policy, and the current attempt to change it, while written to take into account valid concerns over current policies, may cause more harm to potentially threatened species than benefits. It concludes with some alternatives that seek to improve the relationship between federal and state governments, thereby allowing aspects of the ESA to be better implemented to the benefit of the citizens, whether human, wildlife or plant, of the United States. …

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