The Endangered Species Act Under Attack

The Florida panther is a highly endangered subspecies of mountain lion; due to habitat destruction from urban and agricultural development, fewer than 50 survive. Protection under the ESA is essential in preventing the extinction of this imperiled animal and its environment. The grizzly bear is a threatened species, but sadly, the ESA listing of the Yellowstone National Park grizzly population is currently at risk.

You hear about them, but to see one in the wild is rare. Many are charismatic and popular, such as the grizzly bear and the Florida panther, while others are obscure and unknown, like the humpback chub and the pallid manzanita. Whether mammal, plant, fish, crustacean or arthropod, they all share a common trait—they are species whose continued existence is largely due to the protections afforded by the Endangered Species Act (ESA).

Some, like the US population of only 30 Sonoran pronghorn, remain precariously balanced on the brink of extinction. Others, like the American bald eagle—though still classified as a threatened species—have made a remarkable recovery from near disappearance. Yet abroad, the endangered Bengal tiger remains at risk due to habitat destruction and illegal hunting to fuel an illicit trade. And the American alligator is no longer protected by the ESA, as its numbers have recovered to the point that its future seems secure.

The ESA is a safety net for over 1800 species, including nearly 600 foreign species. Considered one of the strongest environmental laws in the world, it requires federal agencies to make every effort to protect and recover imperiled US species and their habitats. Over its 32 years of existence, the ESA has been remarkably successful in preventing the extinction of 99 percent of protected species. Unfortunately, the US Fish and Wildlife Service's implementation of the ESA has been lackluster, frequently requiring litigation to force the agency's compliance with the law and to challenge scientifically fraudulent listing decisions. According to a recent report by the Center for Biological Diversity, at least 85 species have gone extinct without ever being afforded ESA protections, including 24 species whose listings were delayed.

The protection mandated by the ESA to facilitate species recovery has made it a frequent target of developers, ranchers and extractive industries. They criticize the effectiveness of the law, claiming that it impairs development and access to our natural resources. Those statements, regardless of their legitimacy, have led to a weakening of the ESA through regulatory changes. This has allowed—among other things—agreements with landowners permitting land development, regardless of the long-term implications to protected species. Not satisfied with such administrative changes to the ESA, those opposed to the law have continued their efforts to seek assistance from anti-environmental politicians on Capitol Hill to legislate its destruction.

One of these politicians is Representative Richard Pombo (R-CA), a rancher from central California who has been determined to undermine the ESA since his election in 1992. In September 2005, relying on factual misrepresentations, Pombo and his colleagues succeeded by a vote of 229 to 193 in achieving his objective of demolishing the law with the passage of H.R. 3824, misleadingly named the "Threatened and Endangered Species Recovery Act" (TESRA) in the House of Representatives. Far from providing any recovery benefits to threatened or endangered species, TESRA eliminates the requirement to designate critical habitat for listed species, allows the Secretary of the Interior (instead of scientists) to determine what constitutes the best available science in making listing decisions, removes the mandate to achieve species recovery, and exempts state agencies from ESA consultation requirements upon the adoption of conservation agreements. TESRA also requires the government to pay landowners, developers, extractive industry and others for the loss of the value of any proposed activity if it is prohibited by the ESA. This would set a precedent of paying landowners to comply with federal law while also bankrupting the endangered species program by allowing landowners to extort maximum payments from the government.

Since the battle to protect the ESA was lost in the House, the stakes for threatened and endangered species could not be higher in the Senate. Already, Senator Mike Crapo (R-ID) has introduced S. 2110, the "Collaboration and Recovery of Endangered Species Act" (CRESA). Like Pombo's legislation, it is intended to undermine the protectionist mandate of the ESA. If passed, CRESA would make habitat protection requirements completely discretionary, eliminate mandatory timelines for listing decisions, allow developers to destroy one species by protecting another, give industry interests final say over species recovery plans, and provide tax breaks to developers to comply with the law.

More moderate bills are expected to be introduced as well, but with the passage of Pombo's bill in the House, any bill passed by the Senate could be combined with TESRA—threatening the integrity of the ESA. The lynx, the manatee, the California condor, the Devil's Hole pupfish, the Cumberland sandwort and the hundreds of other protected species (as well as species awaiting listing) cannot afford a weaker ESA. The motives of the wealthy developers, ranchers, extractive industries and their political allies must not be allowed to jeopardize the life-saving protections of the ESA. Only through massive public involvement and protest during the Senate's deliberations will the ESA have any chance of being preserved.

Article by D.J. Schubert, a wildlife biologist with 20 years of experience who recently joined the AWI staff.