Home > Major Acts of Congress > Endangered Species Act (1973)

Federico Cheever

The Endangered Species Act (ESA) represents two important legal traditions: environmental law and wildlife law. Congress passed the ESA as part of the explosion of federal legislation enacted between 1970 and 1980 to protect the environment. As a wildlife law, the ESA is part of a thousand-year common law tradition of government regulation of the taking of wildlife.

The United States Constitution grants the federal government no specific authority over wildlife. Congress protects endangered species under the commerce clause authority the Constitution grants it to regulate interstate and foreign commerce. Wildlife is generally a matter of state concern, as it has been since the American Revolution, when the power once invested in the British crown to protect and regulate the taking of wildlife passed to the states. States grant hunting and fishing licenses and monitor and manage wildlife populations.

During the twentieth century, the federal government became increasingly involved in wildlife protection. The Lacey Act of 1900 allowed federal officials to assist in enforcement of state laws against unauthorized takings of wildlife by making interstate transportation of wildlife taken in violation of state law a federal crime. The Migratory Bird Treaty Act of 1918 authorized federal protection of migratory birds, which habitually cross both state and national borders.

In the 1960s the federal government began specifically to protect species in danger of extinction. Congress passed early forms of endangered species protection legislation in 1966 and 1969. Dissatisfaction with this early legislation, coupled with the increased concern for the environment expressed in the demonstrations on the first Earth Day in April 1970, led to the passage of the broader, more powerful, Endangered Species Act of 1973.

NEED FOR THE ESA

Over the course of the twentieth century, scientists became increasingly concerned about the disappearance of once common species of animals and plants. Scientific organizations began to keep lists of extinct and endangered species as an indicator of the health of the environment. By the late twentieth century, most recognized that human activities were driving species to extinction at many times the natural rate. If unchecked, these human activities would result in the annihilation of a significant share of the species inhabiting the planet. The legislative history of the Endangered Species Act of 1973 demonstrates concern about this extinction crisis and a commitment to "the conservation of species and of the ecosystems on which they depend." Many statements in Congress supporting enactment of the law contained references to the extinction crisis. Legislative documents recognized the limited scientific understanding of the crisis and recommended both a "certain humility and sense of urgency" in our efforts to protect the "incalculable" value of biological diversity.

ENFORCEMENT AND CORE PROVISIONS

Two federal agencies administer and enforce the ESA. The United States Fish and Wildlife Service (FWS), in the Department of the Interior, administers the act for all terrestrial and fresh water species. The National Marine Fisheries Service (NMFS), in the Department of Commerce, administers the act for marine and anadromous species (animals, such as shad, that ascend rivers from the sea for breeding).

Four provisions form the core of the ESA. Section 4 requires the federal designation or "listing" of both endangered and threatened species of both plants and animals. Species must be listed as endangered if they are "in danger of extinction throughout all or a significant portion of their range." Species must be listed as threatened if they are "likely to become ... endangered ... within the foreseeable future throughout all or a significant portion of its range." Since 1978, section 4 has also explicitly required the designation of critical habitat for protected species. It also authorizes individuals and groups to petition for the listing of species and notifies the public when a species is subject to the protections of the 1973 act.

Section 7 requires all federal agencies to insure that activities they "authorize, fund or carry out" will not jeopardize the continued existence of any species listed under section 4 or any critical habitat designated under section 4. This obligation must be fulfilled in consultation with the FWS or NMFS. Section 9 forbids any person in the United States or on the high seas from taking any endangered species of fish or wildlife. Take is broadly defined in this section "as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

The protections offered by section 7 and section 9 differ in three significant ways. First, section 7 protects all listed threatened and endangered species of plants and animals and all designated critical habitat, whereas section 9 protects only endangered species of fish and wildlife. Second, section 7 protects species as a whole, while section 9 protects every member of every species of endangered fish or wildlife. Third, section 7 applies only to actions authorized, funded, or carried out by federal agencies, while section 9 prohibits takings by any person.

Finally, section 10 provides exceptions to the prohibitions of section 9. First, the federal government may grant an exception for scientific purposes or to enhance the propagation or survival of the affected species. Second, since 1982 the federal government may authorize takings of protected species that do not jeopardize the continued existence of the species if (1) the takings occur as part of an otherwise legal action, and (2) the taking results from an activity subject to an approved habitat conservation plan (HCP).

EXPERIENCE UNDER THE ACT

The ESA emerged as a powerful wildlife preservation law in 1978 when the United States Supreme Court in Tennessee Valley Authority v. Hill, affirmed an order stopping construction of the Tellico Dam to protect an endangered fish, the snail darter. A majority of the Court found that "the language, history, and structure of the legislation under review ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." Despite the opinion and other controversy surrounding the project, Congress subsequently passed a law authorizing completion of the Tellico Dam, which resulted in destruction of the snail darters' habitat.

Later in 1978, Congress amended the Endangered Species Act, creating a narrow exception to section 7's prohibition against jeopardizing species or habitats. The exception applies to actions of "regional or national significance" when "the benefits of the action clearly outweigh the benefits of alternative courses of action" and "there is no reasonable and prudent alternative" to the proposed action. Under the amendment, this exception could be invoked by decision of the Endangered Species Committee, which the amendment created. This committee is often called the "God Committee" or "God Squad" because it has the power to sentence an entire species to extinction. The Endangered Species Committee exception has rarely been invoked.

The Supreme Court revisited the Endangered Species Act in 1995 in Sweet Home Communities for Greater Oregon v. Babbitt. In that case, the Court upheld an FWS regulation defining harm in the statutory definition of take to include destruction of habitat essential for species breeding, feeding, or sheltering. This regulation can make destruction of essential habitat a violation of the section 9 taking prohibition.

See also: PLANT VARIETY PROTECTION ACT.