PROHIBITIVE POLICY AND THE IMPLEMENTATION OF THE ENDANGERED SPECIES ACT by STEVEN LEWIS FFEE B.S., The University of Michigan (1972) M.S., The University of Michigan (1973) SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY at the MASSACHUSETTS INSTITUTE OF TECHNOLOGY (MAY 1979) Copyright Q) by Steven L. Yaffee Signature of Author ................. Dep rtnt of Urban St g f Planning, May 7, 1979 Certified by.................. .................................... Thesis Supervisor Accepted by ............... - ...... Chairperson, Department Committee Archives MASSACHUSETTSINSTITUTE OFTECHNOLOGY OCT 9 1979 LIBRARIES PROHIBITIVE POLICY AND THE IMPLEMENTATION OF THE ENDANGERED SPECIES ACT by STEVEN LEWIS YAFFEE Submitted to the Department of Urban Studies and Planning on May 7, 1979 in partial fulfillment of the requirements for the Degree of Doctor of Philosophy ABSTRACT Throughout American history there has been an increase in the involve- ment of the federal government in the regulation of social behavior. Increasingly regulation has taken the form of prohibition: Thou Shalt Not Do; no discharge of pollutants into the navigable waters by 1985. The environmental area is rife with examples of prohibitive policy. The thesis studies the formation and implementation of one of these -- the extremely prohibitive Endangered Species Act -- through case studies and measures of program output. Critics argue that prohibitive policy is bad because it does not allow for a balancing of the costs and benefits of alternative actions. They assume that implementation decisions are made solely on technical criteria, that outside parties are excluded from decision-making, and that agency discretion is limited. The thesis argues, however, that these are bad assumptions. Prohibitive policy is not implemented prohibitively. Resource scarcity and huge amounts of technical uncertainty force administrators to exercise discretion. The political context in which implementation takes place provides an opportunity for other interests to enter into decisions. Indeed, the thesis outlines a set of nonstatutory forces that shape implementation at least as much as the original statute. These include resource limitations, conflicting organizational goals, bureaucratic and scientific conservatism, internal advocates, constituent support groups, and legislative and judicial pressures. If prohibitive policy is not implemented prohibitively, why use it? The thesis argues that there are observable impacts of a prohibitive prescription that are useful to interest groups, agencies, and politicians. For example, prohibitive policies have a definite impact on the initial balance of power in a political negotiation. The analysis further identifies two substantive criteria for deter- mining whether to advocate the use of prohibitive mandates in the future -- in cases of extreme risk, and where the goal is to define or protect a social ethic. Thesis Supervisor: Lawrence E. Susskind Associate Professor of Urban Studies and Planning TABLE OF CONTENTS Page PREFACE vi ACKNOWLEDGEMENTS viii 1. INTRODUCTION 1 A Note About Structure and Method 11 Notes 17 2. THE CASE FOR PRESERVING ENDANGERED SPECIES 20 Historical Perspective 21 Human Utility -- Present and Future 24 Ecosystem Stability 28 The Ethical Argument 33 Notes 39 3. EVOLVING PROHIBITIVE ENDANGERED SPECIES POLICY 42 The Evolution of Federal Wildlife Law 42 Developing a Technical Definition of the Endangered Species Problem 44 A Growing and Changing Constituency 49 The First Step: The 1966 Legislation 52 Incremental Expansion: The 1969 Legislation 57 Building Comprehensive, Prohibitive Policy: The 1973 Legislation 64 The Endangered Species Act of 1973: In Summary 75 Notes 78 4. IMPLEMENTING THE 1973 ACT 89 Listing Species and Their Critical Habitats: In Theory 90 The Legacy of Past Action 93 Post-73 Listings and Habitat Designations 95 Implementing Prohibitive Policy Nonprohibitively 100 Notes 105 5. COPING WITH SCARCE RESOURCES AND TECHNICAL UNCERTAINTY: EXERCISING ADMINISTRATIVE DISCRETION 110 Resource Limitations: 6000 Years of Work 111 Resolving Technical Uncertainty: A Mixture of Art and Science 116 Resolving Technical Uncertainty: Population Size and Status 121 Resolving Technical Uncertainty: Predicting the Future 122 Notes 130 iii Page 6. COPING WITH THE INSTITUTIONAL ENVIRONMENT: NEGOTIATING SCIENTIFIC DECISIONS 134 Responding to Political Controversy 135 Modifying Listing Actions 138 Modifying Critical Habitat Designations 141 Working Towards Compromise Through Interagency Consultation 148 Notes 156 7. NONSTATUTORY FORCES THAT SHAPE IMPLEMENTATION 159 Internal Forces 160 Resource Constraints 160 The Match Between Organizational Goals 162 OES - Biologists 163 OES - Managers 166 The FWS Hierarchy 167 Department of the Interior 171 Department of Commerce - National Marine Fisheries Service 171 Federal Development Agencies 176 Non-Federal Groups 180 Scientific and Bureaucratic Conservatism 183 The Advocates Within 192 External Pressures 194 The Uneven Popularity of the Issue 194 Constituency 197 Conflicting Interests 201 Intermediaries 202 Other Governmental Influences 203 Notes 207 8. THE IMPACT AND USES OF PROHIBITIVE POLICY 213 Prohibitive Policy and Bureaucratic Behavior 215 Prohibitive Policy as Political Strategy 219 Prohibitive Policy as a Means of Regulating Agency Behavior 224 Prohibitive Policy and the Substance of the Issue 228 Notes 234 APPENDICES A. Flow Diagram of Listing and Critical Habitat Designation Procedures 236 B. Numbers of Species in Actions Taken Pursuant to the 1973 Endangered Species Act 237 C. Cumulative Numbers of Species Listed By Year, 1964-1973 238 D. Numbers of Species and Critical Habitats Listed By Year, 1967-1978 239 iv Page E. Chronology of Actions Taken to Implement the Interagency Consultation Process 240 F. Institutional Environment for Listing Species and Designating Their Critical Habitats 241 G. Flow Diagram of the Interagency Consultation Process 242 H. Hierarchical Procedure for Resolving Conflicts in Interagency Consultation (Section 7) 243 I. Implementation Time Line 244 J. Key Provisions of the Endangered Species Acts 245 BIBLIOGRAPHY 248 v PREFACE This thesis tells several stories. On the surface, it examines prohibitive policy -- a kind of policy that prohibits a set of actions without allowing for a balancing of the costs and benefits of alternatives. But it also describes what happens during the implementation of a bill, how bureaucracies behave, and how professionalism and expertise influence the actions of administrative agencies. In addition, it deals with the process of policy formation and the development of regulatory policy. The thesis is also very much concerned with the endangered species issue. I started out -- and remain -- fairly well persuaded by the preservationists' argument. The statistics on declining diversity and changing world land use patterns are dramatic, promoting a sense of urgency about determining the values that should be assigned to plant and animal populations, and the institutions that should be established to manage them. Nevertheless, while I find the argument persuasive, I cannot defend it absolutely on the basis of the rational economic paradigm. I was relieved, therefore, to find that my hypothesis was true: There is in fact enormous amounts of uncertainty and latitude involved in these seemingly-technical decisions. Choice and judgment is pervasive. Supposedly the two things that are certain in life are death and taxes. Yet we all know people who don't pay taxes, and we have some latitude over when, how, and where we will die. Indeed, many cultures eliminate death by defining it away: Physical death is not death, but a step into eternal life. Discretion is prevalent in most facets of life, probably more so than we generally realize. Even in seemingly-irreconcilable vi conflicts between preservation and development, compromise between social objectives is usually possible if the incentives are large enough to force the parties into negotiation, and if the conflicts are approached creatively and early in the planning process. The endangered species problem has both technical and institutional dimensions. The institutional question is the toughest: Who can manage animal populations that -- God help them -- do not respect political boundaries? In the United States, we have only rudimentary land use planning. State-level critical areas programs are in an infant stage. National- scale land use management (and ecosystem preservation) is almost nonexistent. Yet the American institutional question is minor compared with that at the international level. Not only are there few international manage- ment institutions that work, but the issue of social conflicts is much more real. It is a lot easier to deny an agency a development project under conditions of affluence, than to deprive a poacher of his ability to feed his family: The ecological issue begs the social question. Until some of the problems of human society are solved, it is unlikely that much headway will be made in preserving ecological diversity. I am not optimistic. Yet if this analysis encourages several readers to think creatively about the problem, then it will have served a useful purpose. vii ACKNOWLEDGEMENTS As with all endeavors, this thesis is a collaborative effort: It draws on the ideas, energy, and support of others. To all of them, I owe an enormous debt. I would especially like to thank my advisor, Larry Susskind, and