NIXONS BEST LAW
ESA at 50: Celebrating the Nation’s Most
Effective Environmental Law
Photograph Source: Sounds Wild – CC BY-SA 4.0
December 28th marks the 50th Anniversary of the Endangered Species Act (ESA), widely regarded as America’s most potent and effective environmental law. The Act has saved hundreds of species from extinction, and is overwhelmingly popular with the American voters. When it originally passed in 1973, to be signed by President Nixon, it carried the Senate unanimously and won a bipartisan majority of 390 in favor to 12 against. Preventing extinction, it turns out, is a bedrock American value.
The strength of the ESA is its legal requirement that decisions must be made solely based on the best available science, sidelining politics. In the absence of this law’s protection, powerful special interests – like the timber, livestock, oil, and mining industries – that drive rare plants and wildlife to extinction through their profit-driven resource extraction flex their influence to prevent conservation of declining species. Through good-old-boy-networks, payola schemes to support political candidates, and collaboration with state and federal agencies, they block efforts to rein in their excesses, and lock in guarantees that their environmentally destructive practices can continue. Endangered Species Act listing interrupts these power dynamics and puts science in the driver’s seat.
The bald eagle, decimated by the insecticide DDT that thinned eggshells and caused widespread nest failures, as well as by shooting by livestock producers, now has populations in every state except Hawai’i. The peregrine falcon was brought back from the brink and today numbers over 72,000 birds. The spotted owl was nearly wiped out by the unsustainable logging of old-growth forests, and its ESA listing did more to reform the logging industry in the Pacific Northwest than any other single environmental action. The black-footed ferret, killed off as collateral damage in the livestock industry’s campaign to eradicate the ecologically important prairie dog, now has multiple populations in the wild (although continued poisoning and shooting campaigns targeting prairie dogs continue to frustrate ferret recovery).
The enemies of ESA protections – mostly states that resent federal intervention in wildlife management decisions, and commercial interests with a profit motive in continuing or resuming exploitation of lands and wildlife – are very fond of calling for the premature de-listing of species. Sometimes they even ask Congress to interfere in the listing process. So-called “extinction riders” are introduced every year which seek to legislate delisting or block uplisting, and sometimes these bad bills even pass on the House side, but they tend to die for lack of 60 votes in the Senate. Unfortunately for the sage grouse, a rider added in 2014 and maintained in the annual spending legislation has prevented ESA protection and meaningful land management reforms, and the trajectory of the species continues on its grim path downward.
Political tampering by career professionals inside the U.S. Fish and Wildlife Service happens as well. The agency has lost multiple lawsuits brought be conservation groups on the basis that the best available science was not being followed. For species like Montana’s Arctic grayling, the American bison, the Yellowstone grizzly population, and the Mono Basin sage grouse population, courts have rejected “not warranted” findings by the US Fish and Wildlife Service, finding that the agency failed to follow the best available science. That’s the strength of the ESA – it keeps federal agencies, states and individuals accountable for complying with the law.
Wolves are a special case, because they face chronic efforts to strip their protections whenever states elect anti-wildlife administrations; in 2011 a rider advanced by Senators Tester and Simpson forced de-listing in Montana and Idaho, as well as parts of Oregon, Washington, and Utah, and set the stage for delisting in Wyoming. This pernicious attack on the ESA has resulted in today’s absurd anti-wolf policies that allow unregulated hunting and trapping across much of the wolf’s natural range in these states, and even blocked court oversight at the time. They clearly deserve to be re-listed in these states based on the best available science, but the U.S. Fish and Wildlife Service is ducking their responsibilities. As a result, wolf populations are declining (or even extirpated) across large areas of states where they are delisted, even as wolves are expanding their range in states where they remain federally protected. This provides an object lesson in both the effectiveness of the ESA, and the hazards in allowing states to manage populations of large native carnivores.
But despite the politics in Congress and inside the Fish and Wildlife Service, deserving species like the wolverine, lesser prairie chicken, and Gunnison sage grouse have recently run the gauntlet and received federal protections they deserve under the law. These species are getting far more conservation attention, and measurable protections, than they did under state management before their listing under the ESA.
Looking ahead to the next 50 years, the climate crisis will continue to stress native ecosystems, and the distribution of plant communities is likely to shift in response. As the global biodiversity crisis hits home in the United States, we’ll need reforms of federal agencies, corporate activities, and humanity’s relationship with nature in order to help fragile and interconnected ecological communities survive. As humanity faces these stressors, we will need to lean ever more heavily on the natural resilience of healthy ecosystems, and the ESA will be more important to our own survival than ever before.
