Endangered Species Act

The Endangered Species Act of 1973 was one of dozens of environmental laws passed in the 1970s in the United States. The act is designed to protect critically imperiled species from extinction due to "the consequences of economic growth and development untempered by adequate concern and conservation." Congress passed its first legislation to protect endangered species in 1966 and expanded the laws again in 1969. The 1973 legislation, however, had much stronger provisions for the protection of endangered species.

ESA is administered by two federal agencies, the Fish and Wildlife Service and the National Marine Fisheries Service. The NMFS handles marine species (except for freshwater fish), and the FWS has responsibility over all other species.

Listing

A species can be listed via two mechanisms. The first is for the FWS or NMFS to directly list the species. The second way is via individual or organizational petition. There are two categories on the list, endangered and threatened. Endangered species are closer to extinction than threatened species. A third status is 'candidate species'. Under this status, the FWS has concluded that listing is warranted but immediate listing is precluded due to other priorities (limited time, perhaps political pressure to delay listing).

It is illegal to kill, buy, sell or trade listed species. The penalties for violating the Endangered Species Act can be as serious as a $50,000 fine and up to a year in jail.

Further, the FWS develops a plan to help the listed species recover. Some species, such as the American Bald Eagle have successfully made it off the list. Others have become extinct.

The Act provides a citizen enforcement clause. This allows anyone to sue the FWS to list a species with dwindling numbers or to force enforcement of the law or an existing plan.

Controversy about the ESA

ESA is controversial, because of the polarizing nature of the debate, which is often framed on the one hand as government intrustion into private and corporate property rights, while on the other hand as a cynical refocusing upon a single, apparently trivial species issues that properly concern endangered ecosystems. Congress has attempted to limit the reach of the act, but this has proved politically difficult. Also, some people argue that when a plan restricts the use of private property it is equivalent to a "taking" or an illegal use of the government's eminent domain powers and a violation of constitutional rights to due process. Compare similar arguments against zoning.

The first big test of ESA came in the 1970s. The case, TVA v. Hill involved a small previously unknown species of perch known as the snail darter and the Tellico Dam in Tennessee. To some, the snail darter represents environmental extremism because opponents of the Tellico Dam were able to use an obscure fish along with the ESA to stop a large project that was near completion. The case went to the Supreme Court in the first significant test of ESA. In 1978 the Supreme Court ruled that the ESA prevented all actions that threaten the existence of an endangered species and blocked further work on the dam.

Congress first tried to overturn TVA v. Hill by creating an Endangered Species Committee, known as the God Squad, that could exempt certain federal actions from section 7(a)(2) of the ESA. The God Squad can exempt actions if the benefits of the action clearly outweigh the costs. The God Squad determined that even though 90-95% completed, the Tellico Dam was not worth completing solely on economic grounds. Thus the benefits did not outweigh the costs, and the Dam was "ill-conceived and uneconomical in the first place," according to Cecil Andrus, then Secretary of the Interior and a member of the God Squad.

Failing in its attempt through the God Squad, Congress later specifically exempted the Tellico Dam from the ESA, allowing the project to be completed. Tellico Lake and Tellico Village exist now as legacies of this epic battle. Although the snail darter's principal habitat was destroyed by flooding, other populations were discovered and the status of the snail darter was downgraded from endangered to threatened in 1984.

There is some evidence that the Act's habitat-protection provisions can encourage landowners to alter their land's habitat to avoid harboring endangered species. Landowners do this to protect the right to develop their land, which can be worth up to half the total value of the property.

One example of this kind of incentive involves the red-cockaded Woodpecker, which prefers to live in trees that are at least 70 years old. [1] (http://www.perc.org/publications/percreports/dec2003/tangents.php?s=2). A study published in the Journal of Law & Economics entitled "Pre-emptive Habitat Destruction Under the Endangered Species Act" found that landowners were harvesting Old growth forest in order to prevent the woodpeckers from nesting on their property. The article appeared to offer a prescription for evasion of the Act:

Under the ESA it is not only illegal to kill an endangered species, but it is also illegal to damage their habitat. By preventing the establishment of an old-growth pine stand, landowners can ensure that red-cockaded woodpeckers do not inhabit their land and avoid ESA regulations that limit or prohibit timber harvest activity.

Many claim that this is a form of a perverse economic incentive. Landowners would normally wait for the trees to reach 70 years of age, because they are more valuable then. Some claim that the perverse incentives of ESA are doubling damaging, at least in the case of the red-cockaded woodpecker, because the rational decision that the landowner makes is both bad for the woodpecker and bad for him economically.

Pittsburgh Tribune-Review columnist Ralph R. Reiland characterized similar actions as "the 3-S treatment": "Shoot, shovel, and shut up" as another recommended method for eliminating endangered species from one's land [2] (http://www.lewrockwell.com/orig4/reiland3.html).

Reference

• Benjamin, Daniel: Preemptive Cuts (http://www.perc.org/publications/percreports/dec2003/tangents.php?s=2), PERC Reports, Volume 21, Number 4, Dec. 2003.
• Lueck, Dean, and Jeffrey A. Michael: Preemptive Habitat Destruction under the Endangered Species Act, Journal of Law & Economics 46(1): 27-60, 2003.
• Reiland, Ralph R.: Shoot, Shovel, and Shut Up (http://www.lewrockwell.com/orig4/reiland3.html), Apr. 6, 2004.
• Wheeler, William Bruce and McDonald, Michael J., TVA and the Tellico Dam 1936-1979: A Bureaucratic Crisis in Post-Industrial America (Knoxville: The University of Tennessee Press, 1986).

External Links

Read the 1978 decision related to the ESA and the snail darter (TVA vs. Hill) at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=437&invol=153