INSIGHTS: The Vital Importance of the Endangered Species Act

{Editor's Note: Jamie Rappaport Clark, executive vice president, Defenders of Wildlife, served as director of the U.S. Fish and Wildlife Administrator in the administration of President Bill Clinton. She presented this statement as testimony before the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife and Water Hearing on the Endangered Species Act on May 19, 2005.}

By Jamie Rappaport Clark

WASHINGTON, DC, June 27, 2005 (ENS) - For more than 30 years, the Endangered Species Act has sounded the alarm whenever wildlife faces extinction. Today, we have wolves in Yellowstone, manatees in Florida, and sea otters in California, largely because of the Act. We can still see bald eagles in the lower 48 states and other magnificent creatures like the peregrine falcon, the American alligator, and California condors, largely because of the Act.

Indeed, there can be no denying that, with the Endangered Species Act’s help, hundreds of species have been rescued from the catastrophic permanence of extinction. Many have seen their populations stabilized; some have actually seen their populations grow. Some have even benefited from comprehensive recovery and habitat conservation efforts to the point where they no longer need the protections of the Act.

In so many ways, Congress was prescient in the original construction of the Endangered Species Act. First, it crafted an Act that spoke specifically to the value - tangible and intangible - of conserving species for future generations, a key point sometimes lost in today’s discussions.

Second, it addressed a problem that, at the time, was only just beginning to be understood: our looming extinction crisis. Currently there is little doubt left in the minds of professional biologists that Earth is faced with a mounting loss of species that threatens to rival the great mass extinctions of the geological record.

Biologist Jaime Rappaport Clark served as director of the U.S. Fish and Wildlife Service from 1997 to 2001. Beginning in 1988, Clark served as the fish and wildlife administrator for the Department of the Army where she was the lead technical authority for fish and wildlife management on Army installations worldwide. (Photo courtesy USFWS)

Lastly, in passing the Act, Congress recognized another key fact that subsequent scientific understanding has only confirmed: the best way to protect species is to conserve their habitat. Today, loss of habitat is widely considered by scientists to be the primary cause of species endangerment and extinction.

Reduced to its core, the Act simply says the federal government must identify species threatened with extinction, identify habitat they need to survive, and help protect both accordingly. And it has worked. Of the more than 1,800 species currently protected by the Act, only nine have been declared extinct. That’s an astonishing more than 99 percent success rate.

But as important as what the Act does is what it does not do.

We must remember the Endangered Species Act was not written to prevent species from becoming threatened or endangered – it was written to prevent species from going extinct. And that is an important difference.

Protecting wildlife from becoming endangered is the province of our other conservation laws – those that protect our water, air, and land. The Endangered Species Act is meant to prevent extinction when we have failed at-risk species by not passing, not enforcing, not implementing, or not funding those other measures.

To thrive, a species needs habitat. Species need to be free from pollution, sprawl, and other pressures that affect food sources, migration routes, and breeding patterns. If those pressures mount and a species does become endangered, how is that the fault of the Endangered Species Act? What about state and local land use laws and decisions? Or farming and agriculture legislation? Or transportation bills? Or laws governing public lands, forests, or rivers? These all have far more impact on the habitat available to wildlife than the Endangered Species Act ever will.

If a species becomes threatened or endangered and needs protection, invariably we have only ourselves to blame. When a species goes on the list, it is we who have failed.

The natural salt marshes of Merritt Island and the St. Johns River west of Titusville, Florida once were home to a non-migratory songbird known as the dusky seaside sparrow. Discovered in 1872, this was the only place in the world they were observed. The dusky seaside sparrow was declared extinct in December 1990. (Photo by P.W. Sykes courtesy USFWS)

It is also way too convenient for some to blame the Act itself when they run afoul of its provisions. It is akin to drivers blaming traffic laws or law enforcement officials for that stack of speeding tickets in their glove compartment, as if their behavior has nothing to do with their predicament. Most collisions with the Act can be seen long before they occur; it’s not too much to ask that we all exercise a little foresight and head off these incidents before they happen.

Unfortunately, opponents of the Act ignore these facts and call it a failure. They say we should dismantle the Act because it does not move enough species off the list to full recovery. They ignore the fact that the Act is our nation’s best tool to prevent extinction and they ignore the hundreds of species still around today because of the Act’s protections. And they ignore the simple truth that unless we prevent extinction first, there can never be any hope of recovery.

Endangered Species Act Legislation in the House

Efforts currently underway in the House of Representatives to alter the Act should definitely undergo some serious scrutiny. Amid claims that the Act is not adequately protecting wildlife, we have only seen legislation that would weaken those protections. So far, we have seen three bills. The first, introduced by Representative Dennis Cardoza of California [a Democrat] this year, dramatically changes the way we protect habitat for species. We are essentially hemorrhaging habitat in this country.

Unfortunately, the Congressman’s solution totally misses the mark, ultimately eliminating any effective habitat protection measure from the Endangered Species Act. The bill does this primarily in two ways: by making designation of critical habitat discretionary and by changing the focus of critical habitat from recovery of species to accommodating their mere survival.

Even under the most optimistic interpretation of this bill, there is no chance that its passage would lead to more protected habitat, greater species conservation and more timely species recovery and delisting.

Another bill, introduced last year by Representative Greg Walden of Oregon [a Republican], undermines the Endangered Species Act from the science angle by hamstringing agency decision-making with needless additional bureaucracy.

Congressman Greg Walden (right) with Interior Secretary Gale Norton at the Deschutes County Fairgrounds (Photo courtesy Office of the Congressman)

In addition, the bill requires that greater weight be given to certain types of scientific evidence, taking the decision on what constitutes “best available” science in any given situation out of the hands of the science professionals. Decisions to list species or protect habitat would be required to receive special review while decisions NOT to list species or NOT protect habitat - the very decisions often sought by industry - need not be peer reviewed at all.

The third, introduced by Representative Jeff Flake of Arizona [a Republican], would prohibit the designation of critical habitat along any rivers, streams, and lakes affected by dams or waterways, a sweeping exemption in some of the most vital habitat to endangered species, as well as allowing destruction or degradation of critical habitat on other lands.

The bill also undermines other Endangered Species Act protections by lowering the standards that must be met for Habitat Conservation Plans to minimize and mitigate damage to species and habitat and by exempting water projects from requirements to mitigate damage caused by invasive species.

If any of the bills under consideration in the House were to pass they would seriously cripple the Act’s ability to fulfill its purpose and only intensify an effort already underway by the current administration to undermine the protections of the Endangered Species Act.

Current Administration Policy

Effective implementation of the Endangered Species Act has suffered greatly in recent years. Under this administration, the number of species being added to the Endangered Species Act list has plummeted. Over the past four years, less than 10 species per year have been added to the list, despite the fact that approximately 286 candidates await protection under the Act.

This is in marked contrast to recent previous administrations: 32 species per year under President [Ronald] Reagan, 58 per year under the first President Bush, and 65 per year under President [Bill] Clinton.

The Florida Panther Refuge was established to protect the critically endangered Florida panther, a local subspecies of mountain lion. It is thought that there are fewer than 50 of these animals remaining. (Photo by George Gentry courtesy USFWS)

And, in one of the most significant rollbacks of Endangered Species Act protections ever, the administration asked, and Congress agreed, to exempt the Department of Defense from some Endangered Species Act requirements for military training exercises, despite Government Accountability Office studies showing that there is no documented evidence the Endangered Species Act hampers military readiness or national security.

In recent years, the administration has also worked systematically to undermine the Endangered Species Act in the courts, employing a wide variety of legal tactics to circumvent the clear language of the law and to skew its function.

Defenders of Wildlife research of more than 100 Endangered Species Act-related cases revealed an alarming pattern of illegal acts, rigged science, settlement deals favoring industry, and flagrant disregard of court orders that require one simple thing of the federal government: obey the law. Interestingly, the administration has been sternly rebuked by federal court judges on more than one occasion for their questionable legal approach to the Endangered Species Act.

But most concerning has been the unbalanced intrusion of politics into decisions that should remain the purview of scientists. I was a long time career wildlife biologist with the U.S. Fish and Wildlife Service and had the privilege of serving as the agency Director from 1997-2001. Never have I seen so many decisions overturned, so much scientific advice ignored, and so much intrusion into the daily work of rank and file Fish and Wildlife Service employees as I do today - all by political appointees.

The Union of Concerned Scientists surveyed Fish and Wildlife Service employees about this very problem and an astonishing 73 percent of respondents said they know of cases where U.S. Department of Interior political appointees have injected themselves into ecological services determinations. Interestingly, Fish and Wildlife Service employees were ordered, again by political appointees, not to participate in the survey. Thankfully many did anyway, providing us with a startling and disconcerting look into a scientific agency turned on its head and stymied from implementing its mission by political meddling.

But I don’t need a survey to shed light on this problem. I know these people. I worked side-by-side with them for many years. I know how dedicated they are and how professional and committed they are to the mission of conserving our nation’s natural resources legacy. I know how strongly they feel about conserving wildlife in this country. And I know how much they are struggling, how frustrated they are because they can’t do their jobs. I know because they tell me.

I get the frustrated, fear-filled phone calls. I get the dire hushed accounts of bad politics trumping good science, of phone calls from political appointees bypassing Service leadership and ordering changes to documents to support outcomes they want to see.

I talk with these folks and a picture emerges of an agency under siege from within, an agency, created and designed to protect our nation’s national wildlife heritage, now seemingly more concerned with protecting the interests of those for whom wildlife and habitat are obstacles to be overcome on the way to a bigger bottom line.

Making the Endangered Species Act Work Better

As we move forward, we should be mindful that we do have one important and undeniable benchmark, a measurement against which all efforts to alter the Act should be evaluated: Does it truly aid species conservation? If the answer is no, then we have failed. If all “reform” does is make it easier to pave over or through the Act, then we have failed. If all “reform” does is decrease habitat available to wildlife, then we have failed.

So is it possible to strengthen the Endangered Species Act so that is works better for all stakeholders, including species, without sacrificing its purpose and intent? Yes. Although the Act is fundamentally sound, like any law, it can be improved. The more difficult question is whether the political process can accomplish that without succumbing to “false reforms” that actually weaken and undermine the law.

How Can the Act Be Improved?

Start by improving the protection and conservation of habitat. That means both more effective regulatory protection and more and better incentives to encourage voluntary habitat management and restoration, with species recovery as the overarching, governing standard. Incentives are especially important for private landowners, many of whom have demonstrated a keen eagerness to be true partners in species conservation.

Let’s also take the common sense step of linking the protection and conservation of habitat to the development and implementation of recovery plans. And yes, economic consideration should play a role in determining how best to protect habitat, but they should never be allowed to trump science or be used to effectively block recovery.

We should also look for opportunities to enhance the role of the states in helping to recover listed species where appropriate. States that have the legal and financial capabilities and the political commitment should be encouraged to help tackle species conservation challenges within their borders in a much more engaged, transparent and collaborative fashion.

A U.S. Fish and Wildlife Service staffer with two red wolf pups bred in captivity. The red wolf is an endangered species that is found in the wild only as experimental populations in Tennessee and North Carolina, about 60 animals. (Photo by George Gentry courtesy FWS)

We need to make sure the federal government does its job too. We forget that it is not just the expert wildlife agencies that have a role in protecting and recovering listed species. All departments and agencies of the federal government have an affirmative obligation, expressed in the Act, to conserve endangered and threatened species, but this obligation is mostly ignored. If federal agencies did their job of helping to conserve imperiled and listed species, we would be much farther down the road to recovery for many of these species and their habitats.

Everyone knows the U.S. Fish and Wildlife Service and NOAA Fisheries are chronically underfunded to carry out their responsibilities under the Endangered Species Act. Interestingly, it wouldn’t take much to change that. We’re talking about a mere fraction of the money the government spends on roads, mines, timber hauls and other “habitat-busting” projects. Adequate funding would help address the listing backlog and backlog of species awaiting habitat designation, saving money in the long run by addressing situations before they’re on the border of being too late.

And the extent to which we can make the Endangered Species Act less contentious and more effective will only help all parties concerned, including species. We need to ensure that the Endangered Species Act is not politicized through the abuse of discretion, especially by political appointees; it just invites rancor and ultimately litigation. Same thing with lackadaisical enforcement of listing and habitat decisions. The vigorousness with which the government enforces the Endangered Species Act can’t wax and wane with each new administration.

Finally, we must remember that the Endangered Species Act has been given too much of a burden to bear when so many other mechanisms should have come into play far sooner to stop species declines. We need to do a better job of using available upstream mechanisms for species conservation and be more creative in developing new ones so that we never even get to the point where the Act must be triggered.

Bottom line: The Endangered Species Act is one of our nation’s most critical and essential environmental laws. Its basic premise and intent remain as sound today as when it was first crafted. And now, more than ever, our nation needs a strong Endangered Species Act. The Endangered Species Act was passed to address a looming crisis of wildlife extinction that affects us all.

It is simply naïve to think we wouldn’t revert to crisis mode absent a strong federal species protection law. And it is the height of ignorance to think, even for a minute, that weakening the Endangered Species Act wouldn’t have dramatic and tangible consequences that would affect our entire ecosystem, and ultimately us.

When the nation rejoiced last month at the return of the ivory-billed woodpecker, [Interior] Secretary [Gale] Norton said that we rarely have a second chance to save wildlife from extinction. But the Endangered Species Act is all about first chances to do the same thing, about preventing wildlife extinction now, just in case nature is out of miracles.