A Welcome Addition to the ESA Literature

Authors


The Endangered Species Act. The Stanford Environmental Law Society . 2001 . Stanford University Press , Stanford, California . 312 pp. $55.00 (hardcover). ISBN 0-8047-3842-4 . $19.95 (paperback). ISBN 0–8047–3843–2.

In an era when scientists debate whether the global rate of extinction exceeds one species per day or more, the U.S. Endangered Species Act ( ESA) serves as a critical counterbalance to the most important threats against species—environmental degradation, habitat destruction, and collection. The ESA embodies the United States' commitment to protect wildlife by mandating the dedication of resources and the tempering of development. The scope of the ESA's coverage now ranges across federal, state, and local governments to private landowners as well, a far cry from the innocuous creation of the Office of Endangered Species in 1966 with a staff of two.

The ESA is arguably the most controversial of all our environmental laws, and implementation of the ESA often neatly frames the conflicting demands of people and species. Consider the Pacific salmon's 10,000-mile journey from the rivers of the U.S. Northwest to the Pacific Ocean and back again. Its survival conflicts with the fishing rights of tribal, commercial, and recreational fishers, logging practices, hydroelectric dams, irrigation, livestock grazing, and interstate transfers of water. Think also about the case of the Florida panther, or any number of other species whose habitat is increasingly squeezed by encroaching human development. Has there been a more divisive struggle in recent years than that over the Northern Spotted Owl, a species used as a legal proxy to combat logging in the old-growth forest stands of the Pacific Northwest? Not surprisingly, every congressional session introduces proposals to amend the ESA.

Because, by statutory definition, implementation of the ESA occurs after most of the harm to the species has already occurred, difficult questions must be answered. At the broad policy level, for example, which of the many threatened species should we save? How precarious must their survival be before we act? At the detailed field level, how much habitat is required to ensure some minimal level of population persistence? How much and what kind of habitat disturbance can occur without jeopardizing recovery?

Not surprisingly, attention to these questions (and the questions themselves) has changed over time, both as our experience with the ESA has accrued and as different administrations have instituted a range of approaches, from selective nonenforcement in the Reagan years to the recent explosion of habitat conservation plans. It is not easy for practitioners to find answers to questions about the ESA, because they are scattered among judicial opinions, departmental regulations, agency opinion letters, and statutory amendments.

To help find useful answers, a user-friendly guide to the ESA's policy and practice has just been published. The Endangered Species Act, written by the Stanford Law School's Environmental Law Society, provides a comprehensive guide to the ESA and how it works—its history, structure, implementation, and innovations. Accessibly written, the book is intended for a wide audience, from government officials, scientists and lawyers to community activists, land-owners, and journalists. Bruce Babbitt writes on the dust jacket that the book is useful reading for “anyone who needs to know what the Endangered Species Act requires, and how to work with others in this most contentious field.” Speaking as someone who has litigated, written about, and taught the ESA, this book is the best single treatment I have found of the ESA's practical requirements and implications.

The book starts with a general introduction to the field, reviewing the ethical, ecological, and utilitarian justifications for endangered species protection and then describing the most important human causes of extinction. As with every chapter in the book, each section is short (no more than two or three pages), with useful headings, briefly setting out the main issues. Although the material in the introduction is well known to those who work in the field, discussing the reasons we should care about endangered species protection provides useful background for those unfamiliar with these issues or exposed to only one side of the argument.

Chapter 1 provides a brief history of the ESA, tracing federal wildlife law from the turn of the twentieth century to the adoption of the ESA in 1973 and its subsequent amendments (as well as the reasons for the amendments) in 1978, 1982, and 1988. It ends with a recounting of the Northern Spotted Owl controversy, the rise of property-rights groups, and the current deadlock over ESA amendments. Chapter 2 covers the mechanics of ESA Section 4—listing, critical habitat designation, and recovery plans. Of particular use to conservation biologists, it includes a helpful discussion of the act's definitions of species, subspecies, and populations. For illustration, it quotes from the National Research Council's view on subspecies and presents a case study of the Pacific salmon.

Chapter 2 includes a thorough description of the listing process. The section first sets out the legal requirements for listing a species, using as illustration the application for listing of the Alameda whipsnake. Next, separate petition requirements are discussed as are the required time periods for action. With the backlog of listing candidates on the increase, priority ranking has become a major issue, and the manual provides both a helpful diagram and a clear explanation of how prioritization occurs. The section then moves to judicial review of listing challenges, explaining the types of procedural errors that have led to successful challenges. The final portion of this chapter addresses emergency listing, delisting, reclassification, and monitoring. All of this information is provided succinctly in seven subsections over 20 pages.

Chapter 3 addresses Section 7, the ESA's statutory requirements for federal agencies. It was Section 7 that turned the snail darter into a household name and stopped construction on the Tellico Dam in the classic 1977 ESA case, TVA v. Hill. The chapter covers the basic requirements of Section 7: setting baselines, the process of consultation and biological assessments and opinions, and the designation of critical habitat. Critical habitat designation has become a particularly charged topic in recent years, with the U.S. Fish and Wildlife Service being forced to designate critical habitat more by lawsuit than agency discretion.

Chapter 4 turns to Section 9's general prohibition against “taking.” It covers the gradual expansion of the definition of harm in the courts and the requirements for an incidental take permit. The last part of the chapter will be particularly useful to people who are not lawyers because it sets out the debate over regulatory takings, legal claims that the government has lowered the value of a parcel of private property to the extent that the owner must be compensated for the loss. The prospect of an enormous takings case was a major concern in the negotiations with Maxxam Corporation over the Headwaters Forest in California and has provided much of the impetus for habitat conservation plans ( HCPs) discussed in the chapter that follows.

Chapter 5 describes the most important innovation in ESA implementation over the last decade, the growth of HCPs. Habitat conservation plans allow the incidental taking of endangered species in exchange for development restrictions and other measures to promote the conservation and recovery of the species. Although highly controversial among environmental groups, HCPs have acted as a political steam valve, weakening calls for disabling amendments to the ESA. The chapter provides an excellent discussion of the mechanics of HCPs, reviewing each step in the approval process and where it can be challenged. It also reviews experiences with recent HCPs, pointing out the relative strengths and weaknessess of such an approach.

Chapter 6 describes the international aspects of the ESA and presents a nice description of the Convention on International Trade in Endangered Species (CITES). Chapter 7 discusses the issues related to suing under the ESA, setting out the causes of action, the requirements for standing, notice, and attorney fees. The single appendix provides the text of the ESA.

Authorship of the book is unusual. As the preface explains, The Endangered Species Act was written over a 4-year period by successive members of Stanford Law School's Environmental Law Society. Although the student editors stayed with the project to ensure continuity, this arrangement would normally give cause for concern over substantive accuracy and emphasis. I certainly don't accept memos from my research assistants as the last word on a subject. Aware of this problem, however, the Environmental Law Society sent the chapters out for review to leading practitioners, including Bill Snape, J. B. Ruhl, and others. One cannot be certain such expert review will catch everything, but it appears that great efforts were made to ensure accuracy.

This brief overview provides, I hope, a sense of the book's comprehensive coverage and sensible structure. As a guide to the ESA, it may not answer every question you have, but it will almost certainly touch on each question, and its extensive footnotes will likely provide further references on the subject. The book is a welcome addition to scholarship on the ESA and will prove a practical and useful reference for anyone working in the field.

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