The Endangered Species Act: 40 Years of Compromise

The U.S Endangered Species Act was signed into law on December 28, 1973 -- 40 years ago last week. In the last few days the law has gotten a lot of mention as the signature federal environmental law, and for good reason. The ESA was the first major law that explicitly linked protection of wild species with preservation of the habitat they require, a breakthrough in basing law on actual science.

But going unmentioned in much of the coverage is the sad story of what's happened to the ESA since Richard M. Nixon put pen to paper in the Oval Office four decades ago. What was once a surprisingly strong wildlife protection law, a law that put the interests of endangered species unambiguously ahead of financial gain, was substantially weakened within a few years of its signing.

And the forty years since have seen one compromise after another in the nation's landmark wildlife protection law, with one contest after another pitting protection against profit, and the ESA has lost a huge amount of its power in the process.

When it was signed in 1973, the ESA forbade any harm to members of a listed species unless that harm was done for scientific purposes deemed important to the overall effort to conserve that species. The House of Representatives had passed the law with only four dissenting votes. It took a few years for Congressional opponents of environmental protection to realize just how powerful such a law could be. As soon as they figured it out, attempts to weaken the ESA began.

In 1975, USFWS listed as Endangered the snail darter, a small fish native to the Little Tennessee River and a few nearby tributaries. When the snail darter was listed, its habitat was on the verge of being destroyed by the Tellico Dam project, in planning by the Tennessee Valley Authority (TVA) since at least the late 1950s. The dam was unpopular among environmentally oriented locals for some time, and construction had previously been stopped for more than a year by a court injunction over lack of an Environmental Impact Statement. When the snail darter was listed, USFWS designated 17 miles of the Little Tennessee as critical habitat for the fish -- a stretch that would be destroyed by the dam project. Local law student Hiram "Hank" Hill, who had petitioned USFWS to list the darter, sued to block completion of the dam on the grounds that finishing the project would violate the ESA.Hill prevailed in a 6-3 decision in the Supreme Court in June 1978. The majority ruling, written by Chief Justice Warren E. Burger, found that building the dam would put TVA in violation of Section 7 of the ESA. Burger's phrasing in the decision was remarkably blunt:

The case made world headlines. The TVA was (and is) a federally owned corporation with billions of dollars in operating revenue per year and a network of massive, expensive infrastructure spanning parts of seven southeastern states. The snail darter is a three-inch fish that eats mollusks. The fish stopping the dam was a David versus Goliath story, and it didn't take long for Goliath's allies to rally to the cause.

If the ESA as signed in 1973 "admit[ted] no exception," then the ESA would have to be changed. Once it turned out in the Tellico Dam case that the law actually worked as intended, there were calls in Congress to "introduce flexibility" into the ESA.

Two months before the Supreme Court decision in Hall v. TVA, Senators Howard Baker and John Culver introduced legislation that would, among other things, establish a Cabinet-level Endangered Species Committee that could grant federal bodies (such as TVA) exemption from Section 7 of the ESA, including the section's requirement that federal agencies consult with USFWS or the National Marine Fisheries Service if a federal project might harm a listed species.

Passed in late 1978 and signed by President Carter, the Endangered Species Act Amendments of 1978 constituted the first serious changes to the ESA. On the plus side, the 1978 Amendments made it mandatory for the federal government to designate Critical Habitat for all listed species. Most notably, the Amendments established Baker and Culver's proposed Endangered Species Committee, popularly referred to as "The God Squad" for its overarching power to determine which species would be protected and which would go extinct. The God Squad would be composed of the heads of the Environmental Protection Agency, the National Oceanic and Atmospheric Administration, the Council of Economic Advisers, and the departments of Agriculture, the Army, and Interior as well as a representative from the state(s) in which the project would take place.

In retrospect, the God Squad wasn't a great palliative for ESA opponents' concerns. Convened to review the Tellico Dam case, the Squad decided that the dam project wasn't worth the cost to the species or to the public treasury. It took a new act of Congress to exempt Tellico from Section 7, in the form of a rider to an 1979 appropriations bill directing TVA to finish the dam project. (Thankfully, new populations of the snail darter were discovered elsewhere in the Tennessee River watershed.)

The God Squad nearly did significant damage to wildlife in the early 1990s when the Bureau of Land Management asked the committee to exempt it from Section 7 in approving timber sales that would harm the northern spotted owl, a Threatened species under the ESA. The Squad approved thirteen problematic timber sales in 1991, saying that there were no reasonable alternatives to cutting down those sections of old-growth forest on which the owl depended. That decision was made moot by a series of high-profile compromises between the Clinton administration and mainstream environmental groups, which prompted the BLM to withdraw its application.

Even at its most threatening, the God Squad was merely empowered to hand out exemptions to the ESA's absolute ban on harming listed species for non-scientific ends. A new set of amendments to the ESA passed in 1982 did more damage: it restructured the whole purpose of the law. Before 1982 ESA had worked to ban harm to protected wildlife species. After 1982, it provided a framework for federal agencies to manage that harm.

Before the Endangered Species Act Amendments of 1982 passed in October of that year, you could only get clearance to harm members of a listed species (that harm, or "take," defined broadly to include killing, injuring, harassing, or infringing on habitat) for research purposes. (Getting a blood sample from an endangered species, for example.)

After the 1982 amendment, it got a lot easier to win permission to harm protected species. It was (and is) still a violation of ESA to go out and hunt a California condor, or to collect its eggs or feathers. But if your plans for a strip mall involve cutting down condor roosting trees and leveling a hillside they nest on, an Incidental Take Permit can now excuse you from legal liability if your bulldozer runs over a condor nest.

Central to the 1982 Amendment was the Habitat Conservation Plan (HCP) concept. Despite its wholesome sounding name, HCPs were designed explicitly to give private landowners and non-federal land managers ways to develop endangered species habitat without running afoul of the law. Widely reviled by developers as infringement of their perceived rights to maximize profit at the expense of wildlife, HCPs actually constitute a near-180-degree reversal of ESA's original intent.

An HCP allows a landowner to develop or alter habitat of a listed species as long as the damage is minimized and "mitigated." That mitigation may involve something as simple as leaving other habitat undeveloped, or paying into a fund to buy up and protect undeveloped habitat.

The first HCP, drawn up as the ink was drying on the 1982 Amendments, concerned the endangered Mission blue butterfly, whose coastal scrub and grassland habitat has been almost completely converted to housing in San Francisco and northern San Mateo County. Developers sought to build even more housing on several hundred acres of San Bruno Mountain that turned out to host a population of the Mission blue. Under the original ESA, the discovery of the butterfly would have ended the development's chances. With an HCP, developers were able to write checks to a conservation fund in exchange for permission to destroy up to 828 acres of Mission blue butterfly habitat. As it turned out, much of the land the conservation fund protected was unsuitable habitat for Mission blues, as the butterflies' larval food plants couldn't grow there.

With a stroke of President Reagan's pen, in other words, the Endangered Species Act was transformed from one of the strongest wildlife protection laws on Earth to a law under which developers could write a check to gain permission to destroy wildlife habitat.

HCPs are now commonplace. They're often bundled directly into resource exploitation plans, as in the case of the Desert Renewable Energy Conservation Plan (DRECP) to govern wind and solar development in the California desert, and the Bay Delta Conservation Plan (BDCP), which would involved building twin tunnels big enough to divert the entire Sacramento River past its outflow. In other words, HCPs weld Habitat Conservation to habitat destruction and alteration.

The 1982 Amendments weren't the last big blows to the ESA. A series of serious compromises to it were enacted by Administrative fiat during the Clinton administration, mainly at the behest of then-Interior Secretary Bruce Babbitt. Babbitt was ostensibly seeking to blunt attacks on the law by the 104th Congress -- especially by California Representative Richard Pombo, who famously claimed in 1995 that his family had suffered when their ranch had been declared critical habitat for the San Joaquin kit fox.

If subsequent revelations that USFWS had never designated any such critical habitat for the kit fox embarrassed Pombo, he didn't let it show, going on to write bill after bill to restrict the ESA -- including a 2005 bill that would have eliminated the requirement that the feds designate critical habitat for listed species. The bill failed of passage despite strong House support. But that didn't really matter: Babbitt had already stopped designating critical habitat a decade earlier.

Bruce Babbitt has environmental bonafides on paper to shame the most ardent conservationist. In his 2005 book "Cities in the Wilderness: A New Vision of Land Use in America," Babbitt advocated for expanding the ESA to protect habitats of species not yet in danger: certainly a laudable idea. But Babbitt may actually bear more personal responsibility for weakening endangered species protection in the United States than any other person alive. During his tenure as Interior Secretary, from 1993-2001, Babbitt implemented a number of controversial compromises in ESA enforcement that significantly weakened the law's effectiveness on the ground. The most damaging of these was likely the "No Surprises" rule, which strips USFWS of its power to protect any new populations of listed species found on a piece of land after an HCP is signed.

But Babbitt's longest-lasting contribution to weakening ESA likely came from his capping the line item in the USFWS budget earmarked for critical habitat designations, on the rationale that getting more species listed under ESA was more important. As a result, critical habitat designations ground to a halt during the Clinton administration, with new designations taking place only when environmental groups sued to force USFWS' hand. When Clinton left office, Babbitt's successor at Interior, Gale Norton, continued his budgetary policy rather seamlessly.

The lawsuits to force designation of critical habitat -- and listing in the first place -- only grew during the Bush administration. Critics on the right charge that the entire process of listing and designation of critical habitat has become driven by environmentalists' lawsuits. They have a minor point, as the administrative overhead of responding to the litigation does eat up resources that could be used protecting species in the first place.

The thing is that those lawsuits only seek to force the government to follow its own law. It's utterly proper to celebrate the anniversary of Nixon's signing of one of the strongest wildlife and habitat protection laws the world has ever known. But it does no one good to pretend that law hasn't been gutted as thoroughly as the snail darter's original habitat was by the Tellico Dam.

Throughout its 40-year history, the ESA has been challenged by those who find it unthinkable that their next-quarter's profits should be granted less importance than an entire species' right to exist. That camp has won major changes that have weakened the 1973 law considerably. Those legal changes may well compromise the ESA less thoroughly than the agencies charged with enforcing it do.

USFWS is famously considering the possibility of delisting the gray wolf in much of its U.S. range. Though wolf numbers have climbed in some places since the species was listed, ESA protection is the only thing keeping legions of wolf hunters and state wildlife "managers" from driving the large predators to extinction. The only reason gray wolves are up for delisting is in response to pressure by the very people that want them killed.

It's really hard to find a more appropriate symbol of how the Endangered Species Act has devolved than that.