Happy Endangered Species Day!
Created by United States Senate in 2006, Endangered Species Day is the third Friday in May. Every year for the past five years, wildlife refuges, zoos, aquariums, botanical gardens, museums, libraries, schools, scout troops and community organizations have held Endangered Species Day events, not only to raise awareness of challenges facing endangered species, but to celebrate the success stories in endangered species protection - the Peregrine Falcon, Kirtland's Warbler, the Wyoming toad, among others. So of course, you can't celebrate Endangered Species Day without celebrating the main legal tool for protecting endangered species - the Endangered Species Act (ESA). In fact, according to the U.S. Fish & Wildlife Service, the ESA has saved hundreds of species from extinction since its inception in 1973.
But the ESA, it appears, is only as strong as the political will to enforce it. A recent budgetary rider put forth by Congress and signed into law by President Obama included a line delisting grey wolves from federal protection under the ESA in Montana, eastern Oregon, eastern Washington, and north-central Utah. What is significant about this is that, under the ESA, delisting a species from protection should be a long process, including scientific study and public debate; yet this recent delisting was accomplished during a last minute budget compromise by Congress. Although, as Keith Rizzardi of the ESA Blawg points out, the U.S. Fish & Wildlife Service may have delisted the wolves anyway, but for the problems with wolf management in Wyoming, the end result is that the ESA was significantly weakened by this eleventh hour legislation. Rizzardi points out: "Sadly, by effectively repealing the ESA as applied to canis lupus, Congress has opened the door to a whole new world...."
Why is this a problem? Some history is in order. The current ESA was passed by Congress in 1973, nearly unanimously. The ESA, drafted in "recogn[ition] that endangered and threatened species needed worldwide protection through development of international treaties and conventions," aimed to make "endangered species protection of highest priority of the government." In 1978, the Supreme Court ruled that the "plain intent" of the ESA must be followed, "whatever the cost" - arguably a recognition that science must trump economic and political arguments where the ESA is concerned. As Law Professor Taimie L. Bryant writes, "The ESA, by protecting animals in fact, implies that animals are valuable, which in turn reinforces the norm of protecting animals."
Over the years, the ESA was amended several times. Notably, after the 1978 Supreme Court ruling in Tennessee Valley Authority v Hill, quoted above, Congress sought to weaken the power of the act by introducing exemptions from its stringent requirements. Various other amendments honed the act, or strengthened it, amended listing and pre-listing requirements.
The current ESA works, in short, by "listing" endangered species, and then protecting the listed species. Listing is a long process, requiring scientific study of the species in question, its habitat and threats to its survival, a comment period when independent scientists and the public may submit comments on the species, and a final determination to list the species or not. Notably, the listing process must be "based solely on science, not on economics or other factors." This requirement, that science trumps economic or political factors where endangered species are concerned, is the key to the successes of the Act.
The other side of the coin - "delisting" - removes federal protections from a species. Delisting should only happen once a species has either recovered and no longer needs protection, or has become extinct. Delisting, like listing, is to be based on scientific studies and an examination of the same factors as in listing. Again, the final determination to delist should come only after scientific study and a lengthy comment period. After delisting, the federal government is supposed to monitor the health of the species for five years.
Despite these requirements, on April 13, 2011, for the first time ever, Congress, not the U.S. Fish & Wildlife Service, deliberately removed an animal - grey wolves - from the endangered species list. There was no extensive study and no comment period. Instead, the delisting was done behind closed doors, the language buried in an eleventh hour bipartisan budget proviso later signed into law by President Obama. As Oregon Governor John Kitzhaber noted in a letter to the president, this delisting is "a highly undesirable precedent" on an issue that "deserve[s] open and informed debate."
That is a good thing to remember on Endangered Species Day. It is wonderful that the Senate created a day dedicated to raising awareness of the challenges facing endangered species. But creating a feel-good holiday and doing the real work of protecting endangered species are two different things.
The Committee on Animals and the Law invites you to visit our Endangered Species Day page at:
http://www.nysba.org/AM/Template.cfm?Section=Endangered_Species_Day
to become better informed about the important role the law plays in the protection of animal species in greatest need of our help.
1. Huffington Post,
http://www.huffingtonpost.com/leda-huta/senate-unanimously-declar_b_575853.html.
2. ESA Blawg, http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/budget_bill_delists_wolf.
3. A History of the Endangered Species Act of 1973, US Fish and Wildlife Services, (2008).
4. History of the United States Endangered Species Act, Florida Museum of Natural History Ichthyology Department, http://www.flmnh.ufl.edu/fish/education/ESA.htm.
5. Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).
6. Similarity or Difference as a Basis for Justice: Must Animals Be Like Humans to Be Legally Protected From Humans? Taimie L. Bryant, 70 Law & Contemporary Problems 207-254 (2007).
7. (Emphasis added), The Citizens' Guide to the Endangered Species Act, Earthjustice and the Endangered Species Coalition.