Endangered Species Act — an Introduction

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Endangered Species Act — an Introduction

by Hugh Holub on May. 24, 2011, under Center for Biological Diversity, climate change, endangered species act, environment water and energy, global warming, litigious environmental groups, politics, Western Watershed Project, WildEarth Guardians

A nice summary article about the Endangered Species Act from FindLaw:

The Endangered Species Act
By Virginia S. Albrecht and James N. Christman of Hunton & Williams LLP

Overview
The Endangered Species Act (ESA) of 1973^[1] protects plants and animals that are listed by the federal government as “endangered” or “threatened.”^[2] Two sections, § 7 and § 9, are central.ESA § 9 makes it unlawful for anyone to “take” a listed animal, and this includes significantly modifying its habitat.^[3] This applies to private parties and private land; a landowner is not allowed to harm an endangered animal or its habitat on his property.

Section 7 applies not to private parties but to federal agencies, but it covers their issuing permits for private activities, such as § 404 permits issued by the Corps of Engineers to people who want to do construction work in waters or wetlands. Specifically, § 7 imposes an affirmative duty on federal agencies to ensure that their actions (including permitting) are not likely to jeopardize the continued existence of a listed species (plant or animal) or result in the destruction or modification of critical habitat. See 50 C.F.R. § 402.01(a). Both § 7 and § 9 allow “incidental” takes, but only with a permit.

The ESA is enforced by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Services (NMFS).^[4] In the Act, “Secretary” refers to the Secretary of Commerce, acting through the NMFS for marine species listed in 50 C.F.R. § 222.23(a) (endangered) and § 227.4 (threatened),^[5] or to the Secretary of the Interior, acting through the U.S. Fish and Wildlife Service for other plants and animals (see 50 C.F.R. §§ 17.2(b), 402.01(b)). Also, the Secretary of Agriculture has some authority over the importing and exporting of plants.

The ESA has so much potential to affect private property that it provokes heated debate and, sometimes, alarming newspaper headlines. Three cases in particular have become famous. The first was the Tellico Dam, which was begun before the ESA was enacted in 1973. The project came to a halt when the Secretary of the Interior declared a small fish called the snail darter to be endangered. Its habitat was thought to be limited to the part of the Little Tennessee River that was to be inundated by the reservoir behind the dam. The case reached the Supreme Court, which concluded that the ESA required it to stop construction of the dam, even though $53 million had already been spent. Tennessee Valley Authority v. Hill , 437 U.S. 153 (1978). Eventually Congress directed^[6] that the Tellico Dam be completed, and President Carter declined to veto the bill. Meanwhile populations of the snail darter had been transplanted^[7] to other nearby rivers, and evidence of other natural populations of them had been discovered as well. The snail darter was upgraded to merely “threatened” in 1984.

The second famous case was the 1990 listing of the northern spotted owl as endangered, with the result that millions of acres of Pacific Northwest forests became protected habitat. See Robertson v. Seattle Audubon Society , 503 U.S. 429 (1992). The timber industry was alarmed at the loss of millions of acres of timberlands, labor unions worried about the loss of jobs, and homebuilding and real estate interests argued that there would be even wider economic harm. President Bush, campaigning for his second term as President, said “[i]t is time to make people more important than owls.”

The third case was that of an immigrant who found that his farm near Bakersfield, California, was listed as habitat for the Tipton kangaroo rat and could not for that reason be plowed. He plowed anyway and was jailed, reportedly, for five months. In a related story, it was reported that restrictions on clearing brush in rat habitat had prevented firefighters from plowing a firebreak, causing more than a dozen houses to burn. The facts about these cases, however, were disputed, and it is hard to know where the truth lies.

The ESA retains its power to alarm people and business interests, especially when the economic costs are high and the species unglamorous. The statute, after all, protects insects such as the Delhi sands flower-loving fly and Hungerford’s crawling water beetle as well as the bald eagle and grizzly bear. In August 1999 Colton, California, made the news because the Delhi Sands flower-loving fly was interfering with plans to develop an industrial park. Although the law contains some provisions for considering the economic cost of protecting plants and animals, Congress wrote the most important ESA provisions in sweeping and near absolute terms.^[8] In the Tellico Dam case, the Supreme Court said that Congress had intended endangered species to be afforded the highest of priorities. 437 U.S. at 169.

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