The Ethical Underpinnings of the Endangered Species Act
By Andrew E. Wetzler
INTRODUCTION
Enacted in 1973, the Endangered Species Act (“ESA” or “the Act”) was a congressional declaration of war against the growing problem of species extinction. Passed nearly unanimously, the ESA is a powerful and comprehensive statute that places the highest priority on the protection of endangered species. Under the Act, government agencies are prohibited from authorizing, funding or carrying out any activities that might harm an endangered species or the habitat on which it relies. Private individuals are forbidden from “taking” endangered species. “Taking” is so broadly defined that it prohibits virtually any activities on public or private lands that could result in harm to a protected species.
It is not surprising, then, that the ESA did not remain uncontroversial for long. It soon became apparent that the strictures of the Act often clashed with many industrial and private economic interests. Over the years, opposition to the ESA has grown, with critics pushing hard for legislative and administrative reform. With congressional reauthorization hearings currently underway, the clamor for reform has only grown.
As the administration of the ESA developed, the Department of the Interior (DOI) adopted a policy of excluding hybrid species from the Act's coverage.6 For nearly twenty-four years, this policy went largely unnoticed. Then, in 1991 the red wolf propelled DOI's hybrid policy into the center of the controversy surrounding the ESA. The red wolf was one of the jewels of the nation's endangered species recovery program. Once endemic to all of the American Southwest, the red wolf's population slowly dwindled over the course of the twentieth century until in 1970 red wolves could be found only in a small area along the Texas-Louisiana border. Due to the wolf's rapidly shrinking population, the Fish and Wildlife Service (FWS) began a captive breeding program in 1974. A year later the red wolf was completely extinct in the wild. For the next twenty years, FWS bred seventeen pairs of captured red wolves in an effort to replenish the lost population, at a cost of six hundred thousand dollars a year.
By all accounts the captive breeding program was a complete success. In the late 1980s, the breeding population had grown to over seventy animals and FWS began to plan their reintroduction into the wild. FWS chose three sites, and in 1987, released red wolf packs in portions of North Carolina. More releases were slated for 1991 in the Great Smokey Mountains of Tennessee. FWS was justifiably proud of its achievement and touted its red wolf program as a model of species conservation.
Then in June 1991, geneticists Robert K. Wayne and Susan M. Jenks made a discovery that turned the red wolf recovery program on its head. Employing advanced mitochondrial DNA (mtDNA) analysis to compare the genetic makeup of coyotes, northern grey wolves and red wolves, they found that the red wolf—long thought to be a separate species or subspecies—was actually a hybrid, a genetic combination of coyotes and grey wolves, presumably produced through extensive interbreeding.
Under other circumstances, the Wayne and Jenks study would have been interesting but not earth-shattering. However, the combination of DOI's hybrid policy and the controversial and high profile nature of the wolf reintroduction program propelled the two scientists' findings into the spotlight. DOI, through a semi-official opinion, had previously adopted its policy of denying ESA protection to hybrid species. Anticipating the publication of the Wayne and Jenks study, DOI retracted the hybrid policy in 1990. Still, ranchers in North Carolina and Tennessee, wary of the prospect of wolves near their livestock, petitioned FWS to remove the red wolf from the endangered species list. Even though the petition was ultimately denied on the grounds that more study was needed, FWS reportedly began to reconsider its plans to proceed with wolf reintroduction at other sites.
As it turned out, the red wolf was not the only high profile animal on the Department of Interior's endangered species list which showed signs of hybridization. Studies had also revealed that the Florida panther had interbred with a closely related species of South American panther. A plan to capture and breed the endangered panther was opposed by animal rights groups on the grounds that the species was a hybrid and therefore not covered by the ESA. Similarly, other studies had revealed that grey wolf populations in the United States showed signs of hybridization with coyotes, prompting a petition by the Montana, Idaho and Wyoming Farm Bureaus to de-list the renowned canid. Reintroduction of the grey wolf into Yellowstone National Park, long a cause celebre of environmentalists, was also opposed on similar grounds. Additionally, there have been reports of interbreeding among the Pacific Northwest's northern spotted owl and the barred owl, producing a hybrid known as the “sparred” owl. Finn whales and blue whales, both endangered species, have also been reported to be interbreeding.
Facing the growing realization that strictly applying a hybrid policy to the ESA would deny protection to a number of highly popular and politically charged species, members of Congress referred the hybrid policy to the National Academy of Sciences for review. Currently, DOI is formulating a revised hybrid policy that Congress will no doubt closely examine at the upcoming ESA reauthorization hearings.
This Note examines the policy behind the protection of endangered species, and argues that ethical justifications must be considered when determining whether any particular species should be protected under the ESA. Part II of this Note examines DOI's legal authority to interpret the ESA either to protect or to exclude hybrid species, ultimately concluding that either interpretation is probably sustainable under the Chevron doctrine. In Part III, the Note turns to a substantive examination of the competing rationales for species protection, arguing that the ESA can only be understood in light of an implicit congressional intent to protect species for moral as well as utilitarian reasons. Finally, in Part IV, the Note directs this analysis at the hybrid policy itself, demonstrating that the hybrid policy places an excessive stress on genetic rationales for species protection and that—in order to be true to the ESA—it must also be justified on ethical grounds. This Part also notes the difficulty of articulating a comprehensive ethic of species protection, given the limits of the Western ethical tradition, and suggests several criteria that any ethic of species protection must embrace.
Enacted in 1973, the Endangered Species Act (“ESA” or “the Act”) was a congressional declaration of war against the growing problem of species extinction. Passed nearly unanimously, the ESA is a powerful and comprehensive statute that places the highest priority on the protection of endangered species. Under the Act, government agencies are prohibited from authorizing, funding or carrying out any activities that might harm an endangered species or the habitat on which it relies. Private individuals are forbidden from “taking” endangered species. “Taking” is so broadly defined that it prohibits virtually any activities on public or private lands that could result in harm to a protected species.
It is not surprising, then, that the ESA did not remain uncontroversial for long. It soon became apparent that the strictures of the Act often clashed with many industrial and private economic interests. Over the years, opposition to the ESA has grown, with critics pushing hard for legislative and administrative reform. With congressional reauthorization hearings currently underway, the clamor for reform has only grown.
As the administration of the ESA developed, the Department of the Interior (DOI) adopted a policy of excluding hybrid species from the Act's coverage.6 For nearly twenty-four years, this policy went largely unnoticed. Then, in 1991 the red wolf propelled DOI's hybrid policy into the center of the controversy surrounding the ESA. The red wolf was one of the jewels of the nation's endangered species recovery program. Once endemic to all of the American Southwest, the red wolf's population slowly dwindled over the course of the twentieth century until in 1970 red wolves could be found only in a small area along the Texas-Louisiana border. Due to the wolf's rapidly shrinking population, the Fish and Wildlife Service (FWS) began a captive breeding program in 1974. A year later the red wolf was completely extinct in the wild. For the next twenty years, FWS bred seventeen pairs of captured red wolves in an effort to replenish the lost population, at a cost of six hundred thousand dollars a year.
By all accounts the captive breeding program was a complete success. In the late 1980s, the breeding population had grown to over seventy animals and FWS began to plan their reintroduction into the wild. FWS chose three sites, and in 1987, released red wolf packs in portions of North Carolina. More releases were slated for 1991 in the Great Smokey Mountains of Tennessee. FWS was justifiably proud of its achievement and touted its red wolf program as a model of species conservation.
Then in June 1991, geneticists Robert K. Wayne and Susan M. Jenks made a discovery that turned the red wolf recovery program on its head. Employing advanced mitochondrial DNA (mtDNA) analysis to compare the genetic makeup of coyotes, northern grey wolves and red wolves, they found that the red wolf—long thought to be a separate species or subspecies—was actually a hybrid, a genetic combination of coyotes and grey wolves, presumably produced through extensive interbreeding.
Under other circumstances, the Wayne and Jenks study would have been interesting but not earth-shattering. However, the combination of DOI's hybrid policy and the controversial and high profile nature of the wolf reintroduction program propelled the two scientists' findings into the spotlight. DOI, through a semi-official opinion, had previously adopted its policy of denying ESA protection to hybrid species. Anticipating the publication of the Wayne and Jenks study, DOI retracted the hybrid policy in 1990. Still, ranchers in North Carolina and Tennessee, wary of the prospect of wolves near their livestock, petitioned FWS to remove the red wolf from the endangered species list. Even though the petition was ultimately denied on the grounds that more study was needed, FWS reportedly began to reconsider its plans to proceed with wolf reintroduction at other sites.
As it turned out, the red wolf was not the only high profile animal on the Department of Interior's endangered species list which showed signs of hybridization. Studies had also revealed that the Florida panther had interbred with a closely related species of South American panther. A plan to capture and breed the endangered panther was opposed by animal rights groups on the grounds that the species was a hybrid and therefore not covered by the ESA. Similarly, other studies had revealed that grey wolf populations in the United States showed signs of hybridization with coyotes, prompting a petition by the Montana, Idaho and Wyoming Farm Bureaus to de-list the renowned canid. Reintroduction of the grey wolf into Yellowstone National Park, long a cause celebre of environmentalists, was also opposed on similar grounds. Additionally, there have been reports of interbreeding among the Pacific Northwest's northern spotted owl and the barred owl, producing a hybrid known as the “sparred” owl. Finn whales and blue whales, both endangered species, have also been reported to be interbreeding.
Facing the growing realization that strictly applying a hybrid policy to the ESA would deny protection to a number of highly popular and politically charged species, members of Congress referred the hybrid policy to the National Academy of Sciences for review. Currently, DOI is formulating a revised hybrid policy that Congress will no doubt closely examine at the upcoming ESA reauthorization hearings.
This Note examines the policy behind the protection of endangered species, and argues that ethical justifications must be considered when determining whether any particular species should be protected under the ESA. Part II of this Note examines DOI's legal authority to interpret the ESA either to protect or to exclude hybrid species, ultimately concluding that either interpretation is probably sustainable under the Chevron doctrine. In Part III, the Note turns to a substantive examination of the competing rationales for species protection, arguing that the ESA can only be understood in light of an implicit congressional intent to protect species for moral as well as utilitarian reasons. Finally, in Part IV, the Note directs this analysis at the hybrid policy itself, demonstrating that the hybrid policy places an excessive stress on genetic rationales for species protection and that—in order to be true to the ESA—it must also be justified on ethical grounds. This Part also notes the difficulty of articulating a comprehensive ethic of species protection, given the limits of the Western ethical tradition, and suggests several criteria that any ethic of species protection must embrace.
