Endangered Species Act
Endangered Species Act (Encyclopedia of Environmental Issues, Revised Edition)
The U.S. Congress first demonstrated concern for the conservation of species in the Lacey Act of 1900, which prohibited the transportation in interstate commerce of any fish or wildlife taken in violation of national, state, or foreign laws. Following the extinction of the passenger pigeon, the Migratory Bird Treaty Act of 1918 authorized the secretary of the interior to adopt regulations for the protection of migratory birds.
In the Endangered Species Preservation Act of 1966, Congress declared that the preservation of species was a national policy. The statute authorized the interior secretary to identify native fish and wildlife threatened with extinction and to purchase land for the protection and restoration of such species. The Endangered Species Conservation Act of 1969 further empowered the secretary to list species threatened with “worldwide extinction” and prohibited the importation of any listed species into the United States. The only species eligible for the list were those threatened with complete extinction. Although the 1966 and 1969 statutes did not include any penalties for destroying species on the list, the legislation was the most comprehensive of its kind to have been enacted by any nation.
In legislative hearings in 1973, it was reported that species were being lost at the rate of about one per year and that the pace of disappearance seemed to be accelerating, with potential damage to the total ecosystem....
(The entire section is 996 words.)
Further Reading (Encyclopedia of Environmental Issues, Revised Edition)
Baur, Donald C., and William Robert Irvin. The Endangered Species Act: Law, Policy, and Perspectives. Chicago: ABA Publishing, 2002.
Burgess, Bonnie B. Fate of the Wild: The Endangered Species Act and the Future of Biodiversity. Athens: University of Georgia Press, 2001.
Goble, Dale D., J. Michael Scott, and Frank W. Davis, eds. Renewing the Conservation Promise. Vol. 1 in The Endangered Species Act at Thirty. Washington, D.C.: Island Press, 2005.
Kohm, Kathryn, ed. Balancing on the Brink of Extinction: The Endangered Species Act and Lessons for the Future. Washington, D.C.: Island Press, 1991.
Mann, Charles, and Mark Plummer. Noah’s Choice: The Future of Endangered Species. New York: Knopf, 1995.
Noss, Reed, Michael O’Connell, and Dennis Murphy. Habitat Conservation Under the Endangered Species Act. Washington, D.C.: Island Press, 1997.
Regenstein, Lewis. The Politics of Extinction. New York: Macmillan, 1975.
Rohlf, Daniel. The Endangered Species Act: Protection and Implementation. Stanford, Calif.: Stanford Environmental Law Society, 1989.
Scott, J. Michael, Dale D. Goble, and Frank W. Davis, eds. Conserving Biodiversity in Human-Dominated Landscapes. Vol. 2 in The Endangered Species Act at Thirty. Washington, D.C.: Island Press, 2006.
(The entire section is 179 words.)
Endangered Species Act
Background (Encyclopedia of Global Resources)
The first law to authorize federal government action to preserve wildlife was the Lacey Act of 1900. Using the federal power to regulate interstate commerce, the Lacey Act authorized federal enforcement of state wildlife regulatory laws and allowed the U.S. secretary of agriculture to preserve and restore bird species. In 1920, the U.S. Supreme Court used federal treaty-making authority to override state law and uphold the constitutionality of the Migratory Bird Treaty Act of 1918. The federal government further asserted its authority in the Migratory Bird Conservation Act of 1929 and the Fish and Wildlife Coordination Act of 1934.
In 1939, the management of wildlife was brought under the control of the Department of the Interior as a natural resource. In 1964, the department established the Committee on Rare and Endangered Wildlife Species, which published the “Red Book,” the first government listing of fish and wildlife threatened by extinction. Public interest in protecting species from extinction increased during the 1960’s, and the first comprehensive federal law in this regard was passed in 1966; the Endangered Species Preservation Act created broad policy without providing enforcement power. Federal agencies were to preserve, to the extent “practicable and consistent” with the primary purposes of the agencies, the habitats of native vertebrate species that the Department of the Interior declared in danger of...
(The entire section is 334 words.)
Provisions (Encyclopedia of Global Resources)
Endangered species legislation that was introduced into Congress in 1972 expanded federal power into areas formerly under state authority. It lowered the endangerment threshold, thereby covering species in a large part of their range. Federal agencies could use their authority to protect listed species, and private citizens would be allowed to bring suit in court.
With environmental concerns high, there was little controversy when the Endangered Species Act (ESA) was finalized and signed into law. As the Supreme Court stated in Tennessee Valley Authority v. Hill (1978), when it upheld stopping construction of the Tellico Dam in order to protect a tiny fish called the snail darter, “the plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as ’incalculable.’” Critics have said that in the environmental furor of the early 1970’s, Congress passed the ESA without fully considering the economic effects of the law.
Under the ESA, species in need of protection may be listed by the Fish and Wildlife Service and the National Marine Fisheries Service as either “threatened” or “endangered.” Section 7 requires that the activities of federal agencies—including those involved with federal land and resource management plans (LRMPs)—not jeopardize listed species or their habitats. Section 9 has been particularly contentious. One...
(The entire section is 266 words.)
Amendments and Suggested Changes (Encyclopedia of Global Resources)
The 1978 amendments to the ESA required that designation of the “critical” habitat of a species accompany the listing of the species, and they permitted consideration of the economic impact of the listing. These changes almost stopped the listing of additional species. Amendments to Section 4 required the secretary of the interior to prepare “recovery plans” for all listed species in order to bring the population of a species to a healthy level.
Amendments in 1982 loosened the connection between the listing of a species and its critical habitat designation by requiring concurrent listing of the habitat only to the “maximum extent prudent and determinable.” A new approach was instituted to ease enforcement of the act. Called the habitat conservation plan (HCP), it allows “incidental takes” of an endangered species as its habitat is being developed as long as there are plans to minimize the loss of the species and to offset potential future losses. An executive committee consisting of local governments, landowners, developers, and environmentalists directs an HCP, with the Fish and Wildlife Service supervising and approving the plan. Scientific guidelines are laid down by a biological advisory team, which creates population viability analyses (PVAs) to estimate the survival chances for a species.
The 1988 amendments added to the listing procedure by requiring that the Department of the...
(The entire section is 464 words.)
Impact on Resource Use (Encyclopedia of Global Resources)
In the late twentieth century, a contentious debate, involving laypersons as well as scholars, occurred on whether the ESA had been a success or failure. The crux of the disagreements was how to achieve a balance between human needs and those of threatened or endangered species of plants and animals. Some scientists pointed out that the ESA may have saved a few species but its policies actually resulted in the extinction of many more. Furthermore, attempts to preserve every species run counter to evolutionary laws. Libertarians insisted that administering the act often led to the violation of landowners’ rights, even prompting some to destroy habitats and eliminate species to prevent government interference.
On the other hand, environmentalists have argued that the ESA has either stabilized or improved the numbers of listed endangered species, with only a small number becoming extinct. Furthermore, administrative faults have been seen as the result of inadequate funding from Congress. In order to resolve the deadlock over what to do with the ESA, discussions have taken place at various venues. For example, in 1996, participants at a forum at the University of Wyoming debated the contentious issue of species protection on private and public lands. This debate was not purely academic; ranchers and environmentalists had clashed over the success or failure of the reintroduction of wolves into Yellowstone Park....
(The entire section is 892 words.)
Further Reading (Encyclopedia of Global Resources)
Baur, Donald C., and William Robert Irvin, eds. Endangered Species Act: Law, Policy, and Perspectives. Chicago: Section of Environment, Energy, and Resources, American Bar Association, 2002.
Burgess, Bonnie B. Fate of the Wild: The Endangered Species Act and the Future of Biodiversity. Athens: University of Georgia Press, 2001.
Czech, Brian, and Paul R. Krausman. The Endangered Species Act: History, Conservation Biology, and Public Policy. Baltimore: Johns Hopkins University Press, 2001.
Foreman, Paul, ed. Endangered Species: Issues and Analyses. New York: Nova Science, 2002.
Goble, Dale D., J. Michael Scott, and Frank W. Davis, eds. The Endangered Species Act at Thirty: Renewing the Conservation Promise. Washington, D.C.: Island Press, 2006.
Liebesman, Lawrence R., and Rafe Petersen. Endangered Species Deskbook. Washington, D.C.: Environmental Law Institute, 2003.
Littell, Richard. Endangered and Other Protected Species: Federal Law and Regulation. Washington, D.C.: Bureau of National Affairs, 1992.
Mann, Charles C. Noah’s Choice: The Future of Endangered Species. New York: Knopf, 1995.
Petersen, Shannon. Acting for Endangered Species: The Statutory Ark. Lawrence: University Press of Kansas, 2002.
Rohlf, Daniel J. The Endangered Species Act: A Guide to Its Protections and...
(The entire section is 256 words.)
Endangered Species Act (West's Encyclopedia of American Law)
The federal Endangered Species Act of 1973 (ESA) (16 U.S.C.A. §§ 1531 et seq.) was enacted to protect animal and plant species from extinction by preserving the ecosystems in which they survive and by providing programs for their conservation.
The act classifies species as either endangered or threatened. It defines an endangered species as one "in danger of extinction throughout all or a significant portion of its range" (§ 1532). A threatened species is one that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range" (§ 1532). A current detailed listing of endangered and threatened animal and plant species is provided in the CODE OF FEDERAL REGULATIONS (see 50 C.F.R. §§ 17.1112). As of March 2003, the code listed approximately 1,260 endangered and threatened species (up from 1,000 in 1996). Between the years of 1995 and 2002, 12 species were removed from the list.
The ESA is administered by two agencies: the National Marine Fisheries Service, which designates marine fish and certain marine mammals, and the U.S. Fish and Wildlife Service, which has jurisdiction over all other wildlife. These agencies may list a species on their own initiative, or any interested person may submit a petition to have a species considered for listing. In either case, the act requires that the decision to include a...
(The entire section is 1909 words.)
Endangered Species Act (1973) (Major Acts of Congress)
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.
Bean, Michael J., and Melanie J. Rowland. The Evolution of National Wildlife Law, 3d ed. Westport, CT: Praeger, 1997.
Cheever, Federico. "The Road to Recovery: A New Way of Thinking about the Endangered Species Act." 23 Ecology L.Q. 1 (1996).
Hood, Laura C. Frayed Safety: Conservation Planning Under The Endangered Species Act. Washington, DC: Defenders of Wildlife, 1998.
Mann, Charles, and Mark Plummer. Noah's Choice: The Future of Endangered Species. New York: Knopf, 1995.
National Research Council. Science and the Endangered Species Act. Washington DC: National Academy Press, 1995.
Stein, Bruce A., Lynn S. Kutner, and Jonathan S. Adams. Precious Heritage: The Status of Biodiversity in the United States. New York: Oxford University Press, 2000.
Wilson, Edward O. The Diversity of Life. Cambridge, MA: Belknap Press, 1992.
United States Fish and Wildlife Service, Endangered Species Program. <http://www.fws.gov/>.
Endangered Species Act (Encyclopedia of Public Health)
Species have evolved throughout the course of natural history, and the fossil record is filled with evidence of extinctions, some of which have been sudden and catastrophic. Ecologists believe that we are in such an era of rapid species extinctions today. The most prominent current cause is human activity, which brings about loss of habitat for species and also causes pollution and overharvesting. For example, the spotted owl is endangered by overharvesting of old growth forests in the Northwest; the bald eagle was nearly rendered extinct in the United States outside of Alaska due to poisoning with DDT and its metabolites; and many species have been hunted to extinction. Species biodiversity has a number of health benefits for people, including maintenance of stable environmental processes that support human life, provision of biological substances that may be useful in pharmaceutical and other applications, and enhancement of the enjoyment of the environment and recreational opportunities.
Enacted in 1973, the Endangered Species Act emerged as a result of concern about extinctions of "various species of fish, wildlife, and plants in the United States" and an understanding that many other species had become "so depleted in numbers that they are in danger of or threatened with extinction." In the act, an endangered species is defined as one for which there is a danger of extinction in "all or a significant portion of its range," unless the species is an insect that has been determined by the secretary of the interior to be a "pest that presents an overwhelming and overriding risk to man." A threatened species is one that is likely to become endangered in the foreseeable future. The Endangered Species Act replaced an earlier statute, the Endangered Species Conservation Act of 1969.
The Endangered Species Act was revolutionary in that it explicitly recognized that to protect species one must conserve "the ecosystems upon which endangered species and threatened species depend." Specifically, "critical habitat" is the area occupied by a species requiring protection that contains the physical or biological features that are essential to the conservation of that species. It does not include the entire potential geographic area that can be occupied by the threatened or endangered species. The Department of the Interior (DOI) is responsible for making determinations of which species are threatened or endangered, and defining the critical habitat for these species. This activity is carried out within the department's Fish and Wildlife Service. The department is also charged with development of protective regulations, recovery plans, and monitoring efforts.
The act explicitly applies to the actions of "all departments and federal agencies" and also requires that the federal government work in concert with state and local agencies to resolve water resource issues involved with the conservation of endangered species. DOI issues "biological opinions" that set the stage for actions to protect endangered species by other agencies.
The act also incorporated provisions for implementation of a number of international agreements, including:
- Migratory bird treaties with Canada and Mexico;
- The Migratory and Endangered Bird Treaty with Japan;
- The Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
- The International Convention for the Northwest Atlantic Fisheries;
- The International Convention for the High Seas Fisheries of the North Pacific Ocean;
- The Convention on International Trade in Endangered Species of Wild Fauna and Flora.
The protection of endangered species is very complex and involves inherent conflict and competition over the use of resources. Critical habitat may be in the hands of private owners, and there may therefore be conflicts regarding property rights. The DOI has evolved mechanisms to help minimize these conflicts. Biological opinions and listing decisions written by its biologists receive peer review by outside scientists to provide assurance of a strong scientific basis. Interior has a policy of developing "habitat conservation plans," which seek to bring all the critical players to the table to develop and agree on plans for conserving critical habitat for endangered and threatened species.
LYNN R. GOLDMAN
(SEE ALSO: Biodiversity; Ecosystems; Environmental Justice; Environmental Movement)
U.S. Congress (1973). Endangered Species Act of 1973. Available at .