Essay
Six Biological Reasons Why the Endangered Species Act Doesn’t Work-And What to Do About It
DANIEL J. ROHLF Natural Rcsourcrs Law Institute Lewis and Clark Law School 1001 5 S.W. Terwilliger Boulevard Portland, OR 972 19, 1J.S.A.
Abstract: Lawpluys an important role in shaping lund man- Resumen: Lus lqws juegun un ppel importunte a1 dark agement decisions. The success of efforts to conserve biodi- ,formu u las deci.$iones sohre el man+ de la tima El exito versity thus depends to a large degree on how well scienttfic de 10s esfiwrzos puru conseruur la biodiversidad depende en knowledge is translated into public policy. IJnfortunute(y, huenu purte de yue tun hien seu truducido el conocimiento the Endangered ,Ypecies Act, the IJnited States’s strongest Iegul cient
Introduction Salwasser (1989) noted that to more effectively influ- ence land and wildlife management, conservation biol- Conservation biology is a unique discipline in that its ogists must also serve as teachers, biopoliticians, and practitioners not only study biodiversity, they also work even “gladiators” in the arena of land-use planning. This to slow and ultimately prevent its erosion. As such, con- article adds another calling to that list-lawyers. Law servation biologists must wear many hats. Thomas and plays a major role in shaping natural resource manage- ment, particularly (but by no means exclusively) on Paper submiCZed July 6, 1990, revised munzucrzpt uccepted October public land. Even the best advice has little 10, 1990. practical effect if it does not fit within the legal con-
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Conservation Biology Volumc 5. No. 3, September 199 I 214 Biological Shortcomings of the Endangered Species Act Rohlf straints imposed upon resource managers. Therefore, in lists based on whether a species faces extinction due to addition to their other duties, conservation biologists any variety of natural or human-caused factors (see 16 must work to ensure that lawmakers and administrators U.S.C. Section 1533 [a] [ 11). The Secretaries must also accurately translate scientifically based conservation draw up “recovery plans” for each listed species, which recommendations into public policy. set forth conservation goals and specrfy actions neces- The Endangered Species Act remains the United sary to achieve them. The current lists include over 600 States’s strongest and most comprehensive species con- species that occur within the United States and over 500 servation strategy, as well as a model for other nations’ species that occur elsewhere in the world. protection efforts (Rohlf 1989). However, the Act has Section 7 contains some of the Act’s principal sub- had very limited success in achieving its stated goal of stantive protections for listed species. It directs federal halting and reversing the trend toward species extinc- land managers and other federal agencies to insure that tions. In the seventeen years since passage of the Act in their activities do not jeopardize the continued exis- 1973, only a handful of protected species have recov- tence of listed species or adversely modrfy habitat crit- ered to the point where they no longer face extinction. ical to those species. To provide federal agencies with Meanwhile, Wilson ( 1988) estimates that human ac- expert biological advice to help them comply with this tions extirpate 17,500 species each year. Although its mandate, the statute requires agencies considering a extremely limited influence over resource management specific action to consult with the Fish and Wildlife Ser- outside the United States hampers the Act’s ability to vice or the National Marine Fisheries Service before conserve global biodiversity, other factors contribute to committing to a course of conduct. After this consulta- the statute’s domestic ineffectiveness. Politics and eco- tion, the service issues a written “biological opinion,” nomic debates have interfered with efforts to conserve which details the proposed activity’s probable influence some species, as the recent bitter controversies sur- on protected species, suggests project alternatives or rounding shrimpers’ use of turtle excluder devices and modifications that would avoid or lessen adverse effects, efforts to curtail logging in Spotted Owl habitat demon- and sets forth the biological information upon which the strate. More fundamentally, however, some provisions opinion is based. Although the action agency makes the of the statute itself, as well as key interpretations of the final decision on whether to proceed, agencies seldom Act by administrators charged with its implementation, go forward with a project if the biological opinion re- conflict with sound biological principles. Biological ports a likelihood of jeopardy to the species or adverse flaws in the law itself significantly contribute to its in- modifications of its critical habitat. Congress amended effectiveness in conserving biodiversity. section 7 in 1978 after the famous snail darter case to This article examines the interplay between the law allow a committee composed of Cabinet-level officials and science of conserving imperiled species. After to grant exemptions to the absolute protections of this briefly describing how the Endangered Species Act section. Rarely convened, the so-called “God Commit- works, I analyze provisions and interpretations of the tee” has granted only one exemption in its history. Act that are inconsistent with basic tenets of conserva- Unlike section 7, whose provisions apply only to fed- tion biology. I conclude with comments on how con- eral agencies, section 9 applies to private individuals, servation biologists can and should influence policy- corporations, and state and local governments as well. It makers in an effort to make law consistent with science. prohibits anyone from “taking” a species listed as en- dangered. “Taking” includes not only direct infliction of physical harm on a member of an endangered species, How the Endangered Species Act Works but also alteration of an endangered species’ habitat that in turn kills or injures members of the species. In addi- Congress enacted the Endangered Species Act to “pro- tion, section 9 prohibits any sort of domestic or inter- vide a means whereby the ecosystems upon which en- national commerce in endangered species and products dangered species and threatened species depend may made from those species, a particularly important pro- be conserved, [and] to provide a program for the con- vision for conservation of listed species that occur ex- servation ofsuch.. . species.. . .”( 16 U.S.C. Section 1531 clusively outside the United States. The Secretaries of [b]). To quallfy for Endangered Species Act protections, Interior and Commerce have issued regulations that ap- a species must appear on the official list of endangered ply the above protections to the vast majority of threat- species, defined by law as those likely to become extinct ened species as well. within all or a significant portion of their range, or of Regulations and official interpretations of the Act play threatened species, those likely to become endangered an important role in shaping the law. Regulations, issued in the foreseeable future. The Secretaries of Interior and by Fish and Wildlife Service and National Marine Fish- Commerce (acting through the US. Fish and Wildlife eries Service, define terms in the Act that the statute Service and National Marine Fisheries Service, respec- does not explicitly define. They also interpret the Act’s tively) have authority to add to and delete from these directives and set forth specific procedures for imple-
Conservation Biology Volume 5, No -3. Scptcrnhcr 1991 ROW Biological Shortcomings of the Endangered Species Act 275 menting its provisions. Although a federal court has au- that favored what it termed “higher” life forms such as thority to set aside regulations it finds in conflict with mammals and birds. Congress specifically disapproved the statute itself, this seldom happens. In practice, there- of this priority system in 1982 when it again amended fore, regulations greatly influence the scope and imple- the Act. Moreover, in committee reports accompanying mentation of the Act’s protections. Additionally, Fish the 1982 amendments, lawmakers made clear that even and Wildlife Service and National Marine Fisheries Ser- though the Act focuses on individual species, its pur- vice receive legal advice to help them interpret the Act poses are “far broader.” Amplifying the Act’s reference from the Solicitor’s Office and Office of General Counsel to ecosystem conservation, a conference committee re- within the Departments of Interior and Commerce, re- port noted that protected species “must be viewed in spectively. Regulations, solicitor’s opinions, and internal terms of their relationship to the ecosystem of which Fish and Wildlife Service and National Marine Fisheries they form a constituent element” (House of Represen- Service policies shape and define legal protections for tatives 1982), while a Senate report argued that it is endangered and threatened species. biologically prudent to place emphasis on listing species that “form the basis of ecosystems and food chains” (US. Senate 1982). These pronouncements notwithstanding, Six Biological Reasons Why the Endangered Fish and Wildlife expressly refused to incorporate spe- Species Act Is Not an Effective Tool for cies’ importance within ecosystems as a listing priority Conserving Biodiversity criterion when it rewrote its listing priority guidelines in 1983. The current guidelines instead concentrate pri- 1. The Act Primarily Protects High-Profile Individual marily on the magnitude and immediacy of threats fac- Species Rather Than Overall Biodiversity. ing species, thus officially adopting an “emergency Legal experts as well as biologists have criticized the room” approach to biodiversity conservation. The Na- Act’s single-species approach to biodiversity conserva- tional Marine Fisheries Service adopted a similar scheme tion. Smith (1984)notes that this approach has been a in its listing priority system. traditional element of conservation regulations due to Species recovery priorities also reflect little consider- the historical fact that overhunting and other forms of ation for maximizing overall biodiversity. Both Services direct exploitation depleted or extirpated many species; base their guidelines for allocating resources for recov- he goes on to point out that species currently face ery efforts primarily on degree of threat as well as a greater threats due to habitat reduction, making ecosys- subjective determination of “recovery potential.” These tem conservation preferable to single-species protec- agencies also have historically focused their recovery tion. Scott et al. (1987) argue that “Emergency Room expenditures on a handful of high-profile species. Be- Conservation” expends inordinate effort and resources tween 1982 and 1986, Fish and Wildlife Service spent on a few species that, by the time they are finally listed almost half of the funds available to it for developing and as endangered or threatened, may be too far gone to implementing recovery plans on twelve specie-nly save. six of which the agency considered highly threatened. Despite its focus on single species, the Endangered The General Accounting Office (1988) found that this Species Act could play a significant role in protecting imbakdnce resulted from the government’s attempt to biodiversity on a broader scale. The Act could serve as maintain a positive public perception of its recovery an extremely useful tool for preserving keystone spe- efforts by placing special emphasis on species with high cies, thus indirectly benefiting the many other life forms public appeal. In an attempt to force more even re- in some way dependent upon those species. Addition- source allocations between listed species, Congress in ally, the law could systematically extend protections to 1988 amended the Endangered Species Act to require indicator species whose relative abundance provides a that recovery plan development and implementation measuring stick for overall health of entire ecosystems. proceed “without regard to taxonomic classification” Such strategies could substantially mitigate many of the (I6 U.S.C. Section 1533 [f] [I] [A]). Although this shortcomings inherent in the Act’s single-species ap- amendment may encourage the Services to consider proach. species other than “charismatic megafauna,” it did not Unfortunately, despite congressional statements fa- change the emphasis on degree of threat as a primary voring ecosystem approaches, policy-makers have recovery priority criterion. tended to emphasize Endangered Species Act protection for high-profile single species rather than incorporate 2 The Act Lacks Clearly Defined Thresholds to Delineate umbrella protections for biodiversity into the statute. In Endangered, Threatened, and Recovered Species. response to a 1979 amendment to the statute requiring Shaffer ( 1987) listed agreement on an appropriate level Fish and Wildlife Service and National Marine Fisheries of security as an important element in systematic biodi- Service to develop priority systems to guide their listing versity conservation. The parameters one chooses to decisions, Fish and Wildlife Service adopted a scheme define a “secure” population have tremendous influence
<:onsewation Biology Volume 5, No 3, September 1991 276 Biological Shortcomings of the Endangered Species Act Rohlf on decisions concerning management of that population allows decision-makers, as well as the public, to per- and its habitat. Greater security for a given species or ceive a clear policy choice: should we define “safety” as population generally requires larger and more numer- one additional cancer death per ten thousand people or ous habitat areas and in some cases more extensive one additional death per one million? Use of an objec- monitoring and management. tive standard of species security would permit a simi- Although the Act implicitly sets a standard for sepa- larly clear choice. rating relatively secure species and populations from Without explicit criteria to define a secure popula- those facing extinction, the statutes does not clearly tion, however, the degree of security afforded to species define or even specifically describe its security standard. by the Act varies according to discretionary ad hoc de- The threshold separating species listed as threatened terminations by the Services. This creates a risk that the and endangered from those considered “recovered” or security afforded to particular species in listing deci- not eligible for protection in effect constitutes a stan- sions or section 7 consultations may not correspond to dard of security because it extends special protections the high value Congress placed on biodiversity protec- to species on one side of this line. The Act and its reg- tion. Absence of objective standards makes it very diffi- ulations, however, simply describe endangered species cult to challenge the Services’ decisions. Courts, which as those in danger of extinction throughout all or a sig- lack biological expertise, give these agencies a great nificant portion of their range; threatened species in- deal of deference; without specific criteria by which to clude those likely to become endangered. The law measure agency determinations, courts are unlikely to makes no reference to quantitative or even qualitative question the services’ listing decisions and biological parameters of what constitutes a “danger” of extinction. opinions. Ironically, advances in conservation biology have Moreover, making species security decisions on a demonstrated that defining a “secure” population in- case-by-case basis without reference to objective stan- volves making policy choices as well as determining dards necessarily injects political and economic consid- required habitat and population sizes. To describe a vi- erations into the process of making what by law are able population, Shaffer (1981, 1987) noted that one supposed to be biological decisions. This occurs be- must first establish a time frame of reference and desired cause without previously set, objective security param- degree of certainty of continued existence. As an exam- eters, the task of defining species security on a case-by- ple, Shaffer arbitrarily defined a viable population as the case basis involves making policy as much as making a smallest isolated population with a 99% chance of re- scientific determination. In making a listing decision, for maining extant for 1000 years in the face of stochastic example, the service must first define the point at which threats to its existence. However, he acknowledged that a particular species is “in danger” of extinction-which establishing these explicit criteria is a policy decision Shaffer notes is essentially a policy choice-and then rather than a biological question; society in essence determine biologically whether the species’ population must choose the amount of “insurance” it wishes to has reached that point. In other words, determining purchase against the risk of extinction. which biological questions to ask involves making a pol- Although Congress’s pronouncements about the im- icy choice. In the controversial Spotted Owl case, for portance of protecting imperiled species suggest that instance, the GAO ( 1989) concluded that Fish and Wild- lawmakers made a policy decision to afford species a life had refused to list owls in part due to political pres- high degree of security, the Endangered Species Act’s sure from Interior Department officials’ concern over lack of explicit biological criteria leaves species security effects on the Northwest’s timber industry. This lobby- determinations to the Services charged with implement- ing probably played a significant role in how Fish and ing the statute. However, the Services have failed to set Wildlife chose to define “danger of extinction” in that specific time and certitude standards for systematically particular case, thus influencing the agency’s suppos- differentiating “secure” species from those facing ex- edly biologically based decision not to afford Spotted tinction and thus eligible for protection under the Act. Owls protection under the Endangered Species Act. Instead, the Services have attempted to draw this dis- Finally, the agencies’ current ad hoc approach to de- tinction on a case-by-case basis in reference to qualita- termining species security under the Act virtually in- tive factors such as a species’ historic abundance and sures that security standards for different species will threats to its existence. As a result, the terms not be uniform. Such disparities raise problems similar “endangered” and “threatened” have no uniform biolog- to those inherent in the single-species approach to bio- ical meaning. Although scientific uncertainty always lim- diversity conservation discussed above. For example, its the precision of objective standards, we use them in a Service may choose to give a highly visible or popular other forms of environmental regulation. The Environ- species a relatively high degree of security even though mental Protection Agency, for example, uses an objec- it does not play a particularly important ecological role. tive estimate of the number of cancers caused to deter- Differential standards of species security thus undercut mine whether to allow use of specific pesticides. This efforts to systematically protect biodiversity.
Conservation Biology Volume 5, No. 3. September 1991 Rohlf Biological Shortcomings of the Endangered Species Act 277
3. The ESA Does Not Adequately Protect Metapopulations. endangered, each remaining population could play a critical role in improving the species’ chances for long- Metapopulation dynamics play an important role in the term persistence. However, barring limited exceptions persistence of many species. The existence of several or and relatively rare instances of separate listings for each many populations is critical for species that inhabit population, the Act does not protect distinct popula- patches in a shifting mosaic of habitats (Picket & Thomp- tions of listed species. son 1978). Multiple populations also serve as a source of colonists and thus as a hedge against environmental sto- 4. Many Biological Determinations Under the Act Are Not chasticity. Additionally, even minimal interbreeding be- Adequately Documented, Preventing Meaningful Scrutiny tween relatively isolated populations can be a key factor and Participation from the Public and Scientific Community. in maintaining such populations’ overall genetic fitness The Endangered Species Act directs federal agencies to (Gilpin 1987). Finally, metapopulation and patch dy- use the “best scientific and commercial data available” namics are likely to become increasingly important as to fulfill their responsibilities under the Act. Other pro- habitat areas become fragmented. In cases of extreme visions of the statute are designed to reinforce this re- habitat fragmentation, artificial breeding exchanges be- quirement. Section 7 requires agencies to prepare writ- tween populations that have become completely repro- ten biological assessments that evaluate how proposed ductively isolated could be a vital future management actions are likely to affect listed species. Additionally, tool. the Services must include in their biological opinions The Endangered Species Act permits protection of summaries of the information upon which the opinions’ populations as well as entire species by authorizing the conclusions are based. Secretaries to list distinct population segments of verte- Since biological assessments and biological opinions brate fish and wildlife as threatened or endangered. For are public documents, they permit public as well as example, grizzly bears in the lower 48 states are listed as independent scientific scrutiny of federal decisions that threatened, whereas the relatively healthy Alaska grizzly affect threatened and endangered species. Such scrutiny population receives no Endangered Species Act protec- plays an important role in assuring that agencies’ deci- tions. Thus, the Act prohibits actions that jeopardize the sions are biologically sound. Congress encouraged in- continued existence of grizzlies in the contiguous states terested parties outside the government to take an ac- even if such actions would not jeopardize grizzlies as a tive role in enforcing the Act’s provisions by granting species. anyone the right to challenge in court agency actions When distinct population segments of a given species alleged to violate the statute. Taking advantage of this are not separately listed, however, they generally do not right, plaintiff groups have overturned several federal enjoy this type of protection. Under Fish and Wildlife agency decisions made without sufficient biological Service policy, an action that jeopardizes or even wipes ddtd. out a population of a listed species is not considered a However, current administrative interpretations of section 7 violation of the Act unless the action jeopar- the Act have reduced the documentation required to dizes the entire species. For example, assume that an accompany federal decisions that affect listed species, imperiled species has five distinct population segments. correspondingly limiting the public’s and scientific If Fish and Wildlife Service separately listed each of the community’s opportunity to independently evaluate five populations as threatened or endangered, a federal these decisions. In 1986, the Services adopted regula- action that threatened to destroy only one of the pop- tions substantially limiting application of the Act’s con- ulations would violate section 7, since as a result of its sultation procedures. Prior to 1986, federal agencies separate listing the population would legally be consid- were required to comply with section 7’s “formal” con- ered a separate species. Separate listings for populations sultation procedures-which result in preparation of a are exceptional, however. On the other hand, if the biological opinion-whenever they determined that a agency had declared the entire species-including all proposed activity could affect a listed species. Under five populations-threatened or endangered in one list- current practice, however, agencies need not go ing decision, an action resulting in destruction of one through this process if they decide that a proposal will population would probably not be precluded under sec- not “adversely affect” protected species. Predictably, tion 7 since four others would still remain. In the latter the number of consultations resulting in biological opin- case, each population would not legally constitute a sep- ions immediately dropped dramatically. In 1979, 1980, arate species and thus would not be eligible for separate and 1981, the Services together conducted an average protection. of about 3500 consultations and issued around 650 writ- This legal shell game with the definition of species ten biological opinions each year (US. House of Repre- adversely affects conservation efforts by ignoring meta- sentatives 1982). However, while the number of con- population dynamics. If an entire biotic species has de- sultations in 1986 alone soared to almost 1 1,000, the clined to the point where it is considered threatened or number of biological opinions issued dropped to 421.
Conservation Biology Volume 5, No. 3, September 1VV 1 278 Biolugicaf Shortcomings of the Endangered Species Act ROM
Such a trend is troubling. Although the Services must the Services to define-the extent “prudent” and deter- concur with other federal agencies’ “no adverse affect” minable+ritical habitat for a species at the same time determinations in writing, such concurrence state- it was added to the protected list, Congress also allowed mentsunlike biological opinions-need not discuss or these agencies to exclude areas from critical habitat sta- even mention the information upon which the Services tus on economic or other grounds. This provision based their findings. This forecloses any outside scrutiny marked a significant departure from the Act’s emphasis of the methods used to determine that a proposal will on biologically based decision-making. not adversely affect listed species, or of the information The agencies charged with implementing the Act es- upon which such a determination is based. Further, Fish sentially responded to the controversy over critical hab- and Wildlife Service also greatly reduced the number of itat designation by avoiding the issue altogether. In activities for which agencies must prepare biological 1979, Fish and Wildlife Service withdrew several pro- assessments. posed critical habitat designations, included a 10- Public disclosure of biological conclusions and the million-acre critical habitat designation for grizzly bears. information upon which those conclusions are based Moreover, by broadly interpreting Congress’s exception promotes decision-making based on sound science. that critical habitat need not be established if not Though the Act requires agencies to use the best scien- “prudent” or determinable, the Services avoided desig- tific information aVdihbk when making decisions-and nating critical habitat concurrent with listings. In 1986, encourages outside parties to enforce this provision- for example, Fish and Wildlife Service listed 45 species reduction of Act documentation requirements threatens as threatened or endangered, but made concurrent crit- to erode scientifically credible decision-making by driv- ical habitat designations for only four species. ing science behind closed doors. Also in 1986, the Services made critical habitat des- ignations essentially moot by reading out of the law 5. The Act Does Not Protect Habitat Reserves Suficiently to section 7’s protections for habitat sufficient to support Sustain “Recovered” Populations. recovered populations of listed species. The agencies interpreted section 7 to prohibit only those actions that The Act ultimately strives to bring populations of listed diminish the value of critical habitat for both the sur- species to the point where they are no longer endan- vival and recovery of listed species. In other words, if a gered or threatened with extinction. To do so, the law federal action hurts a species’ chances for recovery but recognizes that adequate habitat must exist to sustain does not imperil its bare survival, the action does not so-called recovered population levels. Section 7 of the violate section 7. Although this view of the law is ques- Act prohibits federal agencies from destroying or ad- tionable in light of the Act’s language and intent, it has versely modifying habitat that either service formally never been successfully challenged. declares to be “critical” to protected species. Critical Webster (1987) notes that a similar standard appar- habitat, as defined by the Act, means specific geograph- ently applies to habitat of listed species in private own- ical areas that contain those physical or biological fea- ership. Although the Act’s section 7 standards govern tures necessary for recovery of listed species. In light of only federal or federally controlled activities, section 9 this definition, section 7’s prohibition against destroying also applies to private as well as public land. It prohibits critical habitat provides listed species with an important “taking” of listed species, and has been broadly con- legal protection above and beyond the Act’s prohibition strued to ban habitat alterations on private land that kill against jeopardizing the continued existence of listed or injure protected species. However, in 1982 Congress species, that is, kg4 protection for species’ chances of created a process that allows private parties to apply for recovery to healthier population levels. a permit to “incidentally” take threatened and endan- For a few years after the Act was enacted, the services gered species in the course of otherwise lawful activi- actively implemented the statute’s protection of critical ties. To obtain such a permit, a party must submit a habitat, occasionally even declaring large areas critical “habitat conservation plan’’; Fish and Wildlife Service or habitat for listed species. In 1975, for example, Fish and National Marine Fisheries Service may grant the permit Wildlife Service declared over 100,000 acres in Missis- if it finds that the plan will not appreciably reduce the sippi as critical habitat for sandhill cranes, a designation survival and recovery of listed species. As in their inter- that later played a key role in forcing the LJ.S. Depart- pretation of the phrase “survival and recovery” in the ment of Transportation to reroute a highway planned to context of section 7’s critical habitat provision, the ser- be built through the area. By the late 1970s, however, vices apparently feel free to issue incidental “taking” fierce opposition to critical habitat designations set off permits unless a proposal threatens to appreciably di- legislative as well as administrative actions to weaken minish a species’ survival-a deleterious impact on re- Endangered Species Act habitat protections. covery alone is not sufficient grounds for permit denial. Congress dealt with the critical habitat issue when it For example, Fish and Wildlife Service approved a hab- amended the Act in 1978. Though lawmakers required itat conservation plan for the threatened Coachella Val-
Conservation Biology Volume 5. No. 3. September 1991 ROM Biological Shortcomings of the Endangered Species Act 279 ley fringe-toed lizard that calls for development of 75% rence, this type of analysis ignores all human-related of the lizards’ remaining habitat, with the remainder to stochastic threats to a species save those that are virtu- be placed in reserves. Elimination of three-quarters of ally sure to occur. In effect, therefore, this procedure the species’ habitat clearly will adversely affect its re- discounts the role environmental stochasticity plays in covery chances. However, the permit was approved be- species persistence. Consequently, the services overes- cause it did not threaten both the lizard’s survival and timate species’ chances of survival and thus underpro- recovery. tect listed species. These agencies have demonstrated a similar tendency 6. Bodies Charged with Implementing and Enforcing the Act when considering nonimmediate threats to listed spe- Tend to Discount Uncertain or Nonimmediate Factors in cies. For example, when Fish and Wildlife Service re- Their Decision-Making Processes. moved brown pelicans from protected status under the Uncertainty plays a critical role in scientific study of the Act, it dismissed threats to the birds’ habitat posed by extinction process. Stochastic factors substantially influ- manganese mining, not on the grounds that such oper- ence population persistence; estimates of population ations posed no threat to the species, but because it persistence must therefore be expressed in terms of determined that mineral development was unlikely to probabilities. Additionally, scientists do not completely take place in the near future (USFWS 1985). understand many biological and ecological processes. Courts too sometimes discount nonimmediate threats Researchers often express this scientific uncertainty as a to listed species. In a case challenging offshore oil and factor of error, which they report along with their con- gas leasing, for example, plaintiffs argued that leasing clusions. violated the taking prohibition in section c) of the Act, Those charged with making decisions under the Act which forbids actions that “harm” endangered species. also must often deal with uncertainty. Rather than treat- The court, despite an admission by the government that ing uncertainty in a probabilistic manner, however, de- future activities stemming from the leases could harm cisions involving conservation of threatened and endan- protected whales, refused to interfere with leasing be- gered species often ignore or discount uncertain threats cause the harm was not “sufficiently imminent or to these species or use the existence of uncertainty to certain” (North Slope Borougb v. Andrus [ 19791). just@ inaction. Such refusals to consider future risks to listed species’ Environmental stochasticity-chance events such as survival are particularly dangerous. Most human plan- forest fires, drought, floods, and similar habitat disrup- ning horizons span at most a few decades, a very short tions-is an important factor influencing population period from the standpoint of biological evolution. persistence. Although scientists typically study stochas- Thus, risks that seem far in the future from a human tic natural events that affect habitat, environmental sto- perspective can loom as significant threats to species’ chasticity has a human-related component as well. For persistence. Conservation biologists take such risks into example, a given population existing in a riparian habi- account when calculating a species’ time to extinction tat faces the threat of chance environmental events such by considering the biological consequences of an event, as flooding. In addition, the population may be affected discounted by that event’s likelihood of occurring. Ig- by future human-caused environmental changes such as noring uncertain future threats causes agencies and construction of a dam or water pollution. However, en- courts to overestimate species’ chances of long-term tities that implement and enforce the Act’s protections survival and thus to underprotect those species in tend to overestimate species’ chances of survival by dis- present-day decision-making. counting or ignoring natural as well as human-related stochastic threats to species’ environments; as a result, A Note on Biopolitics listed species often receive less protection than is nec- essary to ensure their continued existence. Reviewers who provided valuable comments on an ear- For example, Endangered Species Act regulations re- lier draft of this essay wondered whether reforms to fer to future activities to be conducted by private enti- address the Act’s shortcomings are politically feasible. ties or state and local governments in the same area as a Their point in essence is that our efforts to protect bio- proposed federal action as “cumulative effects.” How- diversity come up short due more to a lack of political ever, when either service prepares a biological opinion will than to the Act’s technical deficiencies. At first analyzing a federal action’s effect on protected species, glance, this view seems incorrect. Congress apparently it considers only those cumulative effects that are “rea- has already made a clear policy choice in favor of pro- sonably certain” to occur. Under this standard, the ser- tecting species, even in the face of serious economic vice accounts only for planned activities that have consequences. Lawmakers stressed that the Act gives cleared all legal and financial hurdles and thus presently listed species “the benefit of the doubt” and, despite give every indication of taking place. Rather than con- persistent efforts by groups opposed to the Act’s con- sidering all risks based on their probability of occur- straints, have consistently refused to significantly
Conservation Biology Volume 5, No. 3, September 1991 280 Biological Shortcomings of the Endangered Species Act ROM weaken its provisions. Moreover, the US. Supreme 1. Scientists should develop a degree of legal so- Court construed the ESA as protecting listed species “at phistication. any cost” (TVA v. Hill [ 19781). Law exerts a strong influence over wildlife and public Despite these pronouncements, efforts to strengthen land management, and to a generally lesser degree over protections for threatened and endangered species will management of private land, in two ways. First, it sets indeed face serious political hurdles. At least initially, substantive standards for management activities and es- the greatest lies in separating policy from science. As is tablishes incentives to comply with, or penalties for vi- common in other contexts, Congress has said one thing olating, those standards. Additionally, laws and regula- about species protection yet actually done another. The tions specify the procedures public agencies must Act makes general commitments to preserve biodiver- follow in making decisions and biological determina- sity but transfers important policy decisions to those not tions, often including procedures that give the public directly accountable to the electorate. This permits pol- opportunities to participate. iticians to point to their solid environmental voting rec- It is important for scientists to understand the legal ord while at the same time pressuring administrative meaning of substantive terms, as well as how that mean- agencies responsible for implementing the Act not to ing affects management. The legal meaning of a techni- make decisions that significantly curtail economic activ- cal term can substantially differ from the term’s scien- ities, particularly in their districts. Reduced protections tific definition. For example, biologists generally for biodiversity are then passed off as “science” rather broadly define “cumulative effects” acting on a species than conscious, politically driven policy choices. to include synergisms, “nibbling” or incremental effects, Conservation biologists and others need to redouble indirect effects, effects that overlap in time or space, and their efforts to impress upon elected officials and the even delayed or remote effects (National Research public the worth of saving imperiled species. However, Council 1986). However, as defined by regulations im- until policy decisions-the degree of security to give plementing the Act, cumulative effects include only listed species, for example-are taken away from admin- those state and private activities that are reasonably cer- istrative agencies and given to politically accountable tain to occur in the vicinity of a federal project (50 decision-makers, such efforts will have limited influ- C.F.R. Section 402.02). Knowledge of such distinctions ence. is critical to understand, evaluate, and itlfluence efforts to protect threatened and endangered species. It is also vital for scientists to understand how legal terms actu- A Call for Scientific Involvement in the ally affect management activities. As outlined above, for example, regulatory revisions in 1986 changed the stan- Legal Process dard for triggering section 7 consultation from “may affect” to “may adversely affect.” This seemingly insig- This section encourages conservation biologists and nificant change drastically reduced the public’s access other scientists to take on a role as focused advocates to information for outside evaluation of federal agencies’ working to make the Act more effective at preventing biological determinations. human-caused species extinctions, and provides specific Attorneys have done a good job of convincing people suggestions on how to do so. Salzman (1989) describes that they play an indispensable role in making and de- focused advocacy as a person (or group) reporting data ciphering the law. Unfortunately, this has tended to dis- concerning an area in which he or she has expertise as courage scientists from participating in the legal process well as deeply held convictions, and pressing to ensure of formulating and implementing guidelines for manag- that the information is interpreted correctly and acted ing threatened and endangered species. Left to their upon. It is entirely appropriate-and crucial-for scien- own devices, lawyers and policy-makers have commit- tists to become focused advocates for strengthening the ted critical biological errors that limit the effectiveness Endangered Species Act. Congress has already made a of such guidelines. To recognize and successfully work policy decision to protect species facing extinction, to correct these biological errors, conservation biolo- even if such protection carries substantial economic or gists need to increase their knowledge of the law. One other costs. Conservation biologists have a strong incen- need not attend three years of law school to develop a tive to support and further the Act’s policy of preventing good working knowledge of laws that deal with biodi- human-caused species extinctions. They also possess versity conservation. Simon (1988), for example, con- the biological knowledge and data crucial to strengthen tains an excellent introduction to many federal land current efforts to reach that goal. What are urgently management statutes, as well as an excellent basic legal needed are increased efforts to ensure that such knowl- primer for nonlawyers. edge and information are translated into the law and 2. Perform directed research. regulations that govern resource management. The Endangered Species Act is “information forcing” in The following are specific suggestions to facilitate much the same way that antipollution laws are “tech- such efforts. nology forcing.” The Clean Air Act, for example, re-
Conservation Biology Volume 5, No 3, September 1991 RoM Biological Shortcomiiigs of the Endangered Species Act 281 quires some pollution sources to employ the “best avail- ther service to add or delete species or populations able control technology.” Part of the thrust of this from the threatened and endangered lists. Whenever a requirement is to encourage technological advances in service concludes that a petitioned action may be war- pollution control by guaranteeing private developers of ranted, or is considering listing a species or population superior technology a market for their product. Simi- on its own initiative, it conducts a status review. Notices larly, the Endangered Species Act requires federal agen- of ongoing status reviews appear in the Federal Register cies to use the “best scientific and commercial data Immediately after such a notice is published, the listing available” in fulfilling their responsibilities under the agency solicits written comments from the public con- Act. This requirement simply refers to the best data cerning the proposed action, and, if requested, a public available, not just to data produced by government sci- hearing. Through use of the petition process and partic- entists. ipation in status reviews, conservation biologists can ex- This legal requirement provides conservation biolo- ert powerful and desperately needed influence over the gists with broad opportunities to perform “directed process of determining which elements of biodiversity research” to benefit species conservation. Salzman need the Act‘s protections. (1989) described how the Point Reyes Bird Observa- The agencies responsible for implementing the Act tory intentionally directed research efforts toward spe- practice so-called “notice and comment” rule-making cific biologically sensitive areas and species. This re- when formulating regulations and policies relating to search encouraged biopolitical decisions to protect the conservation of listed species. Under these procedures, Point Reyes biota by providing decision-makers with the agencies publish a notice of proposed regulations or data on bird and seal populations as well as biological policies in the Federal Register and invite public com- information on threats to those populations. Similar re- ments. Scientists, other than those affiliated with inter- search directed at specific endangered and threatened est groups, seldom take advantage of these opportuni- species and the threats they face could have significant ties to provide input. As detailed in this article, however, influence over federal decisions that affect listed species biologically unsound regulations and policies detrimen- and their habitat. tally affect species conservation efforts. The participa- Federal agencies most commonly use outside biolog- tion of the scientific community in the Services’ regula- ical studies in the context of section 7 consultation be- tory and policy-making procedures is thus particularly tween Fish and Wildlife Service or National Marine Fish- crucial. eries Service and other federal agencies proposing Finally, the Act requires that a recovery plan for particular actions. Accordingly, the influence of a par- threatened and endangered species be prepared. Recov- ticular study varies in proportion with its specificity in ery plans set forth and prioritize actions deemed neces- relation to the project under consideration. For exam- sary to increase the numbers and security of listed spe- ple, a study examining the effect of open-road density cies to the point where they no longer require on grizzly bears’ use of specific habitat types will have a protection under the Act. Since the law specifies that greater impact on national forest management decisions tk Services base recovery plans solely on biological than general studies of human-bear interactions. Re- considerations, and that plans contain objective, mea- searchers should thus practice focused advocacy by di- surable criteria, the public participation procedures for recting their research toward determining the likely im- recovery planning also give scientists an important av- pacts of ongoing or future federal actions on listed enue for focused advocacy. species of concern. By law, federal agencies must con- sider the resulting information. 3. Take full advantage of opportunities for par- ticipation. Conclusion The Endangered Species Act encourages public partici- pation in the federal government’s efforts to conserve Because law wields considerable influence over the ac- endangered and threatened species by providing several tions of resource managers, biological deficiencies in opportunities for interested parties to give their input legal guidelines can adversely affect efforts to conserve on questions of both biology and policy. Traditionally, species facing extinction. Both the Act itself and the environmental organizations, local, state, and federal regulations and policies of agencies charged with imple- agencies, and representatives of affected industries have menting the statute contain significant biological defi- comprised the overwhelming majority of outside par- ciencies. Fortunately, however, the Act’s extensive pub- ticipants in Endangered Species Act proceedings and lic involvement provisions give conservation biologists policy-making. However, rectlfying current biological many opportunities to practice focused advocacy for deficiencies in legal guidelines for species protection biodiversity conservation. Given the current precarious will require widespread and effective participation from state of the earth’s biological resources, conservation the scientific community. biologists can no longer afford to leave law solely to The Act permits any interested party to petition ei- lawyers.
Acknowledgment Scott, J. M., B. Csuti, J. D. Jacobi, and J. Estes. 1987. Species richness: a geographical approach to protecting future biodi- The author wishes to thank the Natural Resources Law versity. Bioscience 37( 1 1):782-788. Institute at Northwestern School of Law, Lewis and Shder, M. 1981. Minimum population sizes for species con- Clark College for a Fellowship which made work on this servation. Bioscience 31( 2)13 1-1 34. article possible. Shaffer, M. 1987. Minimum viable populations: coping with uncertainty. Pages 69-86 in M. E. Soule, editor. Viable popu- Literature Cited lations for conservation. Cambridge University Press, Cam- bridge, England. General Accounting Office. 1988. Management improvements could enhance recovery program. Report No. RCED-89-5. Simon, D. J., editor. 1988. Our common lands: defending the national parks. Island Press, Washington, D.C. General Accounting Ofice. 1989. Spotted owl petition evalu- ation beset by problems. Report No. RCED-89-79. Smith, E. M. 1984. The Endangered Species Act and biological conservation. Southern California Law Review 57( 1):36 I- Gilpin, M. E. 1987. Spacial structure and population vulnera- 413. bility. Pages 125-140 in M. E. Soule, editor. Viable populations for conservation. Cambridge University Press, Cambridge, En- Thomas,J. W.. and H. Salwasser. 1989. Bringing conservation gland. biology into a position of influence in natural resource man- agement. Conscrvation Biology 3( 2):123-127. National Research Council. 1986. Ecological knowledge and environmental problem-solving. National Academy Press, 7VA v. Hill, 437 1J.S. 153 (1977). Washington, D.C. L1.S. Fish and Wildlife Service. 1985. Endangered and threat- North Slope Borough v. Andrus, 486 F. Supp. 326 (D.D.C. ened wildlife and plants; removal of the Brown Pelican in the 1979), affd & rev'd, 642 F. 2d 610 (1980). southeastern IJnitcd States from the list of endangered and threatened wildlife. Federal Register 50:4938-4956. Pickett, S. T. A,, and J. N. Thompson. 1978. Patch dynamics and LJS. House of Representatives. 1982. House Conference Re- the design of nature reserves. Biological Conservation 13:27- port No. 97-835. 37. US. Senate. 1982. Senate Report No. 418. Rohlf, D. R. 1989. The Endangered Species Act: a guide to its protections and implementation. Stanford Environmental Law Webster, R. E. 1987. IIabitat conservation plans under the En- Society, Stanford, California. dangered Species Act. San Diego Law Review 24( 1):24-3-271. Salzman, J.E. 1989. Scientists as advocates: the Point Reyes Wilson, E. 0. 1988. The current state of biological diversity. Bird Observatory and gill netting in central California. Con- Pages 3-18 in E. 0.Wilson, editor. Biodiversity. National Acad- servation Biology 3( 2):170--180. emy Press, Washington, D.C. Conservation Biology Volume 5, No. 3, September 1991