The Concept of Species and the Endangered Species Act
By Kevin W. Grierson
INTRODUCTION
The Endangered Species Act (ESA) has been the focus of a great deal of controversy for the last several years. While environmentalists describe the ESA as “one of the finest pieces of wildlife legislation ever implemented,” others criticize it for being too stringent and failing to take human needs into account. Critics in both Congress and the Bush administration have continually sought to weaken the ESA, with the greatest outcry against the Act resulting from the Supreme Court's 1978 decision in Tennessee Valley Authority v. Hill, the infamous “snail darter” case. Ultimately, Congress's only significant action against the ESA was the creation of a cabinet-level oversight committee with the power to exempt projects from ESA requirements under certain circumstances. However, this “Endangered Species Committee,” more commonly known as the “God Squad,” has been used sparingly, thus far granting only one exemption.
Over the past few years, pressure to modify the ESA has again mounted, especially from Western members of Congress who increasingly see pet projects delayed or halted entirely because of a threat to an endangered species. Senator Slade Gorton (R-Washington), stung by the spotted owl controversy, has pushed to exempt certain forest areas from the purview of the ESA. Representatives Denny Smith (R-Oregon) and Ron Marlenee (R-Montana) have publicly called for the repeal of the ESA. Republican Senator Jake Garn of Utah, angered by the fact that the rare mottle-bellied spotted frog threatens a water project in his home state, suggested applying the ESA to “vertebrate mammals” only. Most attempts to weaken the ESA have met with little success in Congress, which has affirmatively refused, through several reauthorizations, to weaken the ESA.
A greater threat to the ESA comes from attacks by those charged with administering it. Manuel Lujan, the current Secretary of the Interior, has complained that “[i]t's just too tough an act. . . . We've got to change it.” Officials in the Bush Administration were quick to point out that Lujan does not speak for the President, who currently plans no legislation that would seriously weaken the ESA.
Recalcitrant Interior Department officials have nonetheless undermined the effectiveness of the ESA by dragging their feet in implementing key provisions. For example, the ESA directs the Department to designate endangered or threatened species and draft recovery plans, but Department officials have delayed carrying out these mandates. The Department failed to list the Louisiana Black Bear from 1987, when it first received petitions to do so, until 1991, when Defenders of Wildlife filed suit to compel listing. Similarly, the Department recently delayed its release of a draft recovery plan for the spotted owl by forty-five days. Kevin Kirchner, an attorney for the Sierra Club Legal Defense Fund, charged the Department with “looking for any excuse not to get the recovery plan in place.”
In addition to taking a lackadaisical approach to implementing the Act, the Interior Department has increasingly attempted to cabin off from ESA protection subspecies or populations of species which are threatened. For instance, in the late 1980s, the Department promulgated regulations regarding federal funding of state conservation projects which give priority to projects that work to preserve species instead of subspecies. Secretary Lujan has continued in this vein, publicly questioning the necessity of protecting subspecies. Typical of this stance is Lujan's response to a controversy in Arizona. The University of Arizona planned to build an observatory but discovered that its plans would endanger the rare Mount Graham Red Squirrel. Arguing that protecting the squirrel at the expense of the proposed observatory imposed too great a burden, Lujan asked: “Do we have to save every subspecies? Do we have to save [an endangered species] in every locality where it exists? . . . The red squirrel is the best example. Nobody's told me the difference between a red squirrel, a black one, or a brown one.” If taken to their logical conclusion, the Secretary's remarks and actions regarding subspecies indicate that he believes these subspecies are not worth saving because they are not really “species.”
The Secretary also has shown a willingness to short-circuit the definition of “species” in the ESA where he is given any interpretive leeway. For instance, the Secretary has advocated limiting the protection of the Act such that it only applies when the species as a whole is threatened. The Secretary stated that “[j]eopardy opinions can not be used for individuals or populations unless the loss of such will jeopardize the listed species or listed population throughout its range.” Thus, if a distinct population segment is not considered a separate “species” under the terms of the ESA, it is not protected unless its loss would adversely affect the species as a whole. Although the Secretary has retreated from this position to some degree, allowing the protection of individual populations of a number of wideranging species, it still remains the policy regarding most species.
While the Secretary's attempts to exclude from the ESA protection for subspecies are counter to the plain language of the Act, they highlight some very real problems with the definition of the term “species” within the Act. Congress gave the term a broader definition than the common biological definition. While this definition laudably protects a wide variety of important animal population groups, it also creates a number of problems. The definition is based on taxonomic classifications which are neither static nor predictable, creating a climate of uncertainty regarding the coverage of the Act. The definition also arguably overextends the coverage of the Act in some instances. This makes the ESA more burdensome than it need be to serve the interests intended and fosters hostility against the Act.
This Note considers the current statutory definition of the term “species” in the ESA and suggests an alternative bright-line rule which utilizes developing genetic technology. Section II examines the reasons why Congress and the people of the United States wish to preserve endangered species. Section III recounts the historical roots of the Endangered Species Act and explicates the provisions of the Act itself. Section IV discusses both the biological and statutory definitions of “species” and the implications and shortcomings of each. Finally, Section V suggests a way to measure diversity objectively and apply a standard based on that measurement to more controversial situations, specifically, instances where the population in question is a subspecies of a species that is not considered endangered as a whole.
The Endangered Species Act (ESA) has been the focus of a great deal of controversy for the last several years. While environmentalists describe the ESA as “one of the finest pieces of wildlife legislation ever implemented,” others criticize it for being too stringent and failing to take human needs into account. Critics in both Congress and the Bush administration have continually sought to weaken the ESA, with the greatest outcry against the Act resulting from the Supreme Court's 1978 decision in Tennessee Valley Authority v. Hill, the infamous “snail darter” case. Ultimately, Congress's only significant action against the ESA was the creation of a cabinet-level oversight committee with the power to exempt projects from ESA requirements under certain circumstances. However, this “Endangered Species Committee,” more commonly known as the “God Squad,” has been used sparingly, thus far granting only one exemption.
Over the past few years, pressure to modify the ESA has again mounted, especially from Western members of Congress who increasingly see pet projects delayed or halted entirely because of a threat to an endangered species. Senator Slade Gorton (R-Washington), stung by the spotted owl controversy, has pushed to exempt certain forest areas from the purview of the ESA. Representatives Denny Smith (R-Oregon) and Ron Marlenee (R-Montana) have publicly called for the repeal of the ESA. Republican Senator Jake Garn of Utah, angered by the fact that the rare mottle-bellied spotted frog threatens a water project in his home state, suggested applying the ESA to “vertebrate mammals” only. Most attempts to weaken the ESA have met with little success in Congress, which has affirmatively refused, through several reauthorizations, to weaken the ESA.
A greater threat to the ESA comes from attacks by those charged with administering it. Manuel Lujan, the current Secretary of the Interior, has complained that “[i]t's just too tough an act. . . . We've got to change it.” Officials in the Bush Administration were quick to point out that Lujan does not speak for the President, who currently plans no legislation that would seriously weaken the ESA.
Recalcitrant Interior Department officials have nonetheless undermined the effectiveness of the ESA by dragging their feet in implementing key provisions. For example, the ESA directs the Department to designate endangered or threatened species and draft recovery plans, but Department officials have delayed carrying out these mandates. The Department failed to list the Louisiana Black Bear from 1987, when it first received petitions to do so, until 1991, when Defenders of Wildlife filed suit to compel listing. Similarly, the Department recently delayed its release of a draft recovery plan for the spotted owl by forty-five days. Kevin Kirchner, an attorney for the Sierra Club Legal Defense Fund, charged the Department with “looking for any excuse not to get the recovery plan in place.”
In addition to taking a lackadaisical approach to implementing the Act, the Interior Department has increasingly attempted to cabin off from ESA protection subspecies or populations of species which are threatened. For instance, in the late 1980s, the Department promulgated regulations regarding federal funding of state conservation projects which give priority to projects that work to preserve species instead of subspecies. Secretary Lujan has continued in this vein, publicly questioning the necessity of protecting subspecies. Typical of this stance is Lujan's response to a controversy in Arizona. The University of Arizona planned to build an observatory but discovered that its plans would endanger the rare Mount Graham Red Squirrel. Arguing that protecting the squirrel at the expense of the proposed observatory imposed too great a burden, Lujan asked: “Do we have to save every subspecies? Do we have to save [an endangered species] in every locality where it exists? . . . The red squirrel is the best example. Nobody's told me the difference between a red squirrel, a black one, or a brown one.” If taken to their logical conclusion, the Secretary's remarks and actions regarding subspecies indicate that he believes these subspecies are not worth saving because they are not really “species.”
The Secretary also has shown a willingness to short-circuit the definition of “species” in the ESA where he is given any interpretive leeway. For instance, the Secretary has advocated limiting the protection of the Act such that it only applies when the species as a whole is threatened. The Secretary stated that “[j]eopardy opinions can not be used for individuals or populations unless the loss of such will jeopardize the listed species or listed population throughout its range.” Thus, if a distinct population segment is not considered a separate “species” under the terms of the ESA, it is not protected unless its loss would adversely affect the species as a whole. Although the Secretary has retreated from this position to some degree, allowing the protection of individual populations of a number of wideranging species, it still remains the policy regarding most species.
While the Secretary's attempts to exclude from the ESA protection for subspecies are counter to the plain language of the Act, they highlight some very real problems with the definition of the term “species” within the Act. Congress gave the term a broader definition than the common biological definition. While this definition laudably protects a wide variety of important animal population groups, it also creates a number of problems. The definition is based on taxonomic classifications which are neither static nor predictable, creating a climate of uncertainty regarding the coverage of the Act. The definition also arguably overextends the coverage of the Act in some instances. This makes the ESA more burdensome than it need be to serve the interests intended and fosters hostility against the Act.
This Note considers the current statutory definition of the term “species” in the ESA and suggests an alternative bright-line rule which utilizes developing genetic technology. Section II examines the reasons why Congress and the people of the United States wish to preserve endangered species. Section III recounts the historical roots of the Endangered Species Act and explicates the provisions of the Act itself. Section IV discusses both the biological and statutory definitions of “species” and the implications and shortcomings of each. Finally, Section V suggests a way to measure diversity objectively and apply a standard based on that measurement to more controversial situations, specifically, instances where the population in question is a subspecies of a species that is not considered endangered as a whole.
