Reckoning with History: How the once-radical Endangered Species Act was weakened

The ESA started out strong, but opponents have chipped away at the landmark law.

 

Reckoning with History is an ongoing series that seeks to understand the legacies of the past and to put the West’s present moment in perspective.

In his classic book, A Sand County Almanac, conservationist Aldo Leopold wrote of ecological communities, “A land ethic of course cannot prevent the alteration, management, and use of these ‘resources,’ but it does affirm their right to continued existence, and, at least in spots, their continued existence in a natural state.” Congress essentially agreed with Leopold when it passed the Endangered Species Act (ESA) in 1973, with only 12 dissenting votes in the House and none in the Senate.

aldoleopold1-jpg
Leopold bow hunting, Chihuahua, Mexico, in 1938.

This congressional consensus existed because few legislators understood the ESA’s full implications. But for decades, as scientific research accumulated and judges established precedents, the ESA’s full scope made it arguably the nation’s most controversial environmental law. Today, private landowners and industry in the West are calling for Congress and the president’s administration to gut the law, weakening a system already riddled with compromises that threaten species’ continued existence.

In Leopold’s day, solving endangered species issues seemed easy: Stop overhunting. Leopold himself told one of conservation’s most famous fables about reconsidering his own hunting practices after killing a wolf and watching “a fierce green fire dying in her eyes,” a conversion experience that led him to “think like a mountain,” his eloquent metaphor for considering things from nature’s perspective.  

But through the mid-20th century, scientists developed new ways to understand species. Joseph Grinnell, who directed the University of California, Berkeley’s Museum of Vertebrate Zoology, leveraged this scientific shift through his influence. Grinnell and his students helped habitat protection emerge as the central factor in species survival, as historian Peter S. Alagona wrote in his book, After the Grizzly: Endangered Species and the Politics of Place in California. Protecting habitat to keep species alive eventually flipped to using endangered species to protect habitat.

Young Aldo Leopold and his brother, Carl, in Burlington, Iowa, after a successful hunt in 1904. Leopold's experiences hunting led him to consider conservation from nature's perspective.

Yet protecting habitat opened Pandora’s box, particularly after the Supreme Court clarified the ESA’s power. In the first major test of the law, Tennessee Valley Authority v. Hill (1978), the Court found, “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost” (emphasis my own). Later, the Supreme Court affirmed in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon (1995) that the law’s prohibition of “harm” extended to damaging habitat, including on private lands. Such precedents demonstrated the ESA’s radical potential to upend economics and property, inciting a backlash against federal land-use regulation that began with the Sagebrush Rebellion in the late 1970s and has only quickened since.

The legislative and executive branches sought remedies after the judicial branch bolstered the ESA. Congress countered with amendments, and executive agencies, especially the U.S. Fish and Wildlife Service, rewrote rules for greater flexibility. For example, in 1982, amendments to the ESA initiated habitat conservation plans (HCPs), which included incidental take permits. HCPs allow landowners to craft land-use plans that may harm endangered species or habitat incidental to the project, while protecting landowners from legal penalties. This legal innovation allowed negotiation over endangered species habitat, something welcomed by those seeking to move beyond lawsuits.

Recent history extends this worrying trend. For instance, the years-long effort to protect the sage grouse across the West, which had been promoted as a cooperative model, has devolved. After fostering collaboration among federal agencies, states, industries, landowners and conservationists, the Interior Department adopted a sage grouse recovery plan in 2015. But under Secretary Ryan Zinke the department has changed the plan to favor oil and gas development and undermine species protection, throwing collaboration to the wind and undermining the goodwill developed painstakingly over years of work. Meanwhile, congressional Republicans introduced bills last summer to reform the ESA, and the Trump administration’s Interior and Commerce departments have proposed new rules that would give more power over rare species to the states, while allowing greater flexibility for development favored by industry — suggesting that no amount of compromise may satisfy critics of the law.

With the climate crisis and other environmental challenges confronting the West, endangered species require vigorous action if they are to survive. Compromise, although a necessary lubricant to politics, often fits poorly with species’ biology. Just as important, standards of right and wrong, as Leopold framed these issues, do not permit concessions easily. No matter how central science may be to solutions, it is worth remembering that the ESA is a product of politics.

Adam M. Sowards is an environmental historian, professor, and writer. He lives in Pullman, Washington.

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