Federal Efforts to Ensure Biodiversity: The Endangered Species Act

The Endangered Species Act

            In the mid-nineteenth century, John James Audubon, founder of the world-renowned birding organization that bears his name, identified the passenger pigeon as the most prolific bird species in North America.  Migrating birds spread across the sky for miles, so dense that ornithologists reported flocks of the pigeon so enormous that they blocked the sun for hours or even days as they passed overhead.  At that time, the passenger pigeon population numbered in the billions. Just a few decades later, not a single specimen existed in the wild.  The very last passenger pigeon died in the Cincinnati Zoo in 1914.[i]

            Biodiversity loss is a major environmental problem.  Although the populations of all plant and animal species fluctuate naturally, the current threats to species extinction are primarily due to human activity.  Species loss has escalated to between 1,000 and 10,000 times the natural rate of extinction, with thousands of extinctions occurring every year.[ii]  The Endangered Species Act was passed to halt and ultimately reverse extinction by protecting key wildlife species and their critical habitat areas from manmade threats.[iii]  Through direct intervention by federal agencies, the Act has contributed to the recovery of dozens of plant and animal populations.

The purpose of this article is to examine the development of legislation aimed at protecting endangered species as well as analyzing the operation of the Endangered Species Act.

Early Attempts at Protecting Endangered Species

            The first national law protecting wildlife species threatened with extinction was the Endangered Species Preservation Act of 1966.[iv]  Certain aspects of the 1966 law – such as the process for identifying and listing endangered species and protecting critical habitat – laid the foundation for the Endangered Species Act currently in existence.  However, this early version of the law only protected vertebrate animal species native to the United States and did not regulate poaching or commercial markets for endangered animals or their byproducts. 

Recognizing these shortcomings, Congress passed the Endangered Species Conservation Act of 1969.[v]  The 1969 amendments prohibited trade in endangered animals and added invertebrates to the set of species that qualify for protection under the law.  Further, the new law pivoted the focus away from native species to the protection of biodiversity internationally. The 1969 amendments called upon other nations to adopt a treaty drafted to protect endangered wildlife across the world.  The Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”) was held in Washington D.C. in 1973, and the broad multinational treaty adopted by the 80 countries represented at the conference established the framework for the Endangered Species Act as we know it today.[vi] 

The Endangered Species Act of 1973

            The Endangered Species Act of 1973 (“Act”) broadens and bolsters government protection over all plant and animal species listed by the United States as threatened or endangered.  To be “listed” under the Act, a species must be:

·         impacted by destruction or modification of its habitat;

·         be subject to over-use in commercial or other markets; or

·         have its existence threatened due to disease, predation, inadequate existing regulation, or any other natural or manmade factors threatening its existence.[vii] 

The listing process may be initiated by the United States Fish and Wildlife Service, the National Oceanic and Atmospheric Administration, or by private petition to one of these agencies.  The reviewing agencies have a great deal of discretion in the listing process, but they are required to make an ultimate determination based upon the best scientific and commercial information currently available; economic impacts are expressly excluded from species listing determinations. 

Operation

After a species is listed as threatened or endangered, public and private entities are both prohibited from attempting “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” any specimen – a broad category of impacts collectively known as a “taking” of the species.[viii]  The Act allows the issuance of permits that authorize the taking of a protected species under two very limited circumstances: takings necessary for scientific research enhancing the survival of the species and takings that are incidental to an otherwise lawful activity.  Incidental take permits are very difficult to procure, extremely limited in scope, and require the development of and strict adherence to Conservation Plans that list specific requirements for the protection of the impacted species and its habitat.[ix]  In keeping with the extremely protective spirit of the Act, permits are very difficult to procure and often disapproved.

Detecting Violations under the Act

Like other environmental laws, alleged violations of the Act can be either pursued administratively by the implementing agencies or litigated through private citizen suits. Penalties for Act violations range from harsh civil penalties to incarceration, and the law allows for exemptions only in extremely limited circumstances.  However, the worldwide scope of the Act sets it apart from most other national laws.  Species that meet listing criteria are entitled to protection under the law regardless of which country the plant or animal lives in.  Very few laws are enforceable outside of the physical jurisdiction in which they are passed, but the Act can be enforced against U.S. citizens and corporations even when they are acting abroad.[x] 

There are several examples of international enforcement under the Act.  In 2014, a Chinese antiques dealer was sentenced to nearly six years in federal prison and a fine of $3.5 million for buying and selling rhinoceros horns and an American who purchased narwhal tusks from Canadian co-conspirators was sentenced to over three years in prison and ordered to forfeit over $92,000 in fines and illegal proceeds.[xi]  Altogether, the broad scope and strict implementation of the Act has laid the groundwork for meaningful species recovery in the United States and abroad.

Only a few generations ago, the passenger pigeon defined the American ecological landscape.  Now, not a single specimen survives.  The fate of the passenger pigeon, and dozens of other species made extinct by hunting and other manmade forces, cannot be reversed.  Despite the tragic loss of these species, it awakened the public consciousness to the importance of biodiversity protection. It also led to the development of what has been called “one of the most popular and effective environmental laws ever enacted.”[xii]  

While the veracity of this statement can be debated, the Endangered Species Act has successfully managed the recover of near-extinct species, including the California condor, blackfooted ferret, peregrine falcon, grey wolf, American alligator, and the bald eagle.  Without this law, thousands of wild plants and animals would be lost. The Act’s continued success is a reflection of the power of the law to compel change, even under the most oppressive circumstances.