The Endangered Species Act by DeAnna Worthington
The Endangered Species Act (ESA) was passed by Congress and signed into law in 1973
by President Richard Nixon. The goal of the ESA, then and now, is to preserve endangered
species and to conserve the ecosystems in which these species live.i The ESA has been
described as both, “the world’s most potent single piece of environmental legislation…,” iiand as,
“an utter failure.” iii The purpose of this paper will be to discuss various aspects of the ESA. In
doing so, it will: 1) review the reasons the ESA was enacted, 2) describe the features of the 1973
Act and some of its subsequent amendments, 3) discuss the criticisms raised against and support
given for the ESA, and 4) conclude that the ESA is imperative to the continuing existence and
vitality of plants, animals, fish, and human species.
A primary reason for the ESA was to combat the population decline of plant and animal
species in risk of extinction. Various factors brought about this decline. Hunting and sporting by
early settlers of America was one cause of the decline. Another cause was the destruction of
animal habitation. Farming techniques, such as the use of pesticides and herbicides, contributed
to habitat destruction. Commercial development also hindered the survival of many species due
to mining, housing developments and logging. The development of America’s infrastructure,
including highways and railways, further contributed to species decline.iv
Prior to the enactment of the ESA, certain animals were on the verge of extinction more
than others. One example was the American buffalo. “There were probably 25 to 30 million
bison in North America when the Europeans arrived...”v Native Americans used almost every
part of the buffalo and because of this respect for the animal, there was merely a minor dent in
the decline of the buffalo population. By contrast, early European settlers found the hunting of
buffalo to be a sport and used it for profit.vi “By 1870, the great herds of buffalo had vanished.
What were left were huge heaps of bones and rotting flesh. A few stragglers remained, but for
all practical purposes, the buffalo was gone.”vii
Animals were killed because of various reasons. Ranchers and herders killed the grizzly
bear and gray wolf because of their danger to humans and to their flocks and herds. “In 1905,
cattlemen forced the state of Montana to pass a law requiring the state veterinarian to infect
captive wolves and then release them to spread disease among the wolf population.”viii By
contrast, the bald eagle was not killed due to its potential harm to humans. Rather, it became
nearly extinct because it fed on small animals and insects infected by pesticides used in farming
to control insects.ix Some animals neared extinction because of the extinction of animals they
preyed on. For example, the black- footed ferret solely survived on the prairie dog for food, thus
the extinction of the prairie dog threatened the extinction of the ferret.x
Early efforts of preservation of nature protection leading up to the ESA include the
creation of national parks in the nineteenth century, including Yosemite and Yellowstone
National Parks. In addition, the growing popularity of natural history museums created an
awareness of biological diversity.xi In terms of legislation, The Lacey Act of 1900 prohibited the
interstate commerce of animals which were illegally captured according to state laws.xii “The
Lacey Act was revolutionary, essentially the first endangered species law. It enhanced existing
legislation by making the possession, transport, or sale of wildlife a separate offense from the
initial act of poaching.”xiii
As a result of the above issues, the ESA was passed by Congress and signed into law in
1973. The purpose of the ESA is to “provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved.”xiv To “take”, remove,
hunt or destruct an endangered species habitat is prohibited in the Act. “Cutting trees, clearing
land, or diverting a river or stream”xv are acts identified by the ESA as potentially being in
violation of the law.xvi A section of the Act addresses recovery plans for a species that has been
listed. The ESA also addresses how a species is to be identified and listed as endangered. Upon
being added to the list, a species is either listed as threatened or endangered. A species that is
likely to become endangered would be listed as threatened, whereas a species in more critical
need or that is likely to become extinct would be listed as endangered.xvii The ESA authorizes
the government to purchase land and give financial assistance in order to protect the habitat of
listed species.xviii The ESA also includes the protection of plants. This helps to insure not only
animals are protected but also plants that they rely on. The Fish and Wildlife Service (FWS) is
designated to oversee the ESA and this agency is provided with a large budget to effectuate its
intent.xix Under the Act, the government is also obliged to protect endangered species, thus
affecting government projects such as highways, dams and bridges.xx
Since its enactment, there have been amendments to the ESA. One amendment adds
economic considerations when determining what constitutes critical habitat.xxi The Act states,
“The Secretary shall designate critical habitat, and make revisions thereto, under subsection
(a)(3) on the basis of the best scientific data available and after taking into consideration the
economic impact, and any other relevant impact, of specifying any particular area as critical
habitat..”xxii Another amendment allows property owners to develop a portion of their land if
they will, in exchange, leave other portions of their lands protected. A compromise such as this
is called Habitat Conservation Plans (HCP).xxiii
Supporters of the ESA have promoted its effectiveness. One reason the ESA has been
viewed as a success is that it is working, in other words, recovery has been achieved for many
species. One example of a species that has been saved, in part, by the ESA is the bald eagle, the
nation’s symbol. At one time, the number of eagles had dwindled down to less than 500 pairs.
After implementation of the act, there is estimated to be nearly 4,000 pairs.xxiv Other animals
which are considered recovered are “the whooping cranes, California sea otters, peregrine
falcons, black-footed ferrets, Kirtland’s warblers, brown pelicans, red wolves, Aleutian Canada
geese and Peter’s Mountain mallow wildflowers.”xxv
In addition to species recovery, other benefits have resulted in the passage of the ESA.
For instance, supporters of the act have emphasized the economic value brought about by the
ESA. Jobs have been created in industries such as the sustainable extraction of species and
ecotourism.xxvi In addition, medical and pharmaceutical fields have benefited from the
preservation of plants and animals as it is estimated that “as many as 40 percent of prescription
medicines today are derived from wild plants and animals.”xxvii Consequently, with the
availability of these plants and animals for use as medications, human health has improved and
lives have been saved.
Others have raised criticisms against the ESA. One of the biggest criticisms is that is
violates private property rights, or personal freedoms, as guaranteed by the Bill of Rights of the
US Constitution. Private property owners must abide by regulations in the ESA which include,
“clearing dead brush, grazing cattle, putting in erosion barriers, home improvements or anything
else that might harm, capture, trap, collect, pursue, harass, wound or kill one federally protected
beetle, snail, snake or bird.”xxviii Fines and jail time are possible results for those caught
violating the regulations.xxix
Another criticism against the ESA is that the data provided to add or remove a species to
the endangered list is not scientifically accurate or reliable. The information is based off of the
“best available data.”xxx However, since scientific data is not required by the ESA, many believe
the recovery of a species may be the result of an initial undercounting when the species was
initially added to the list.xxxi
Other critics of the ESA point to the enormous cost associated with listing and protecting
endangered species. People often overlook that protection costs are in the billions. In addition,
jobs are lost when they conflict with the executed protection plans. For instance, if the plans to
save the spotted owl proceed and, it will cost more than $700 million annually to pay for
unemployment benefits. xxxii
Despite the criticisms raised, we, as a nation are better off because of the ESA. It is our
moral obligation to protect species because we are all part of a shared ecosystem. If a species
becomes extinct because of human causes, the result is an imbalance in the natural order.xxxiii
“The biological integrity of the world and its spiritual integrity are stunningly intertwined…”xxxiv
The Native Americans do not separate species, land and humans into separate categories, but see
them as belonging to an interconnected whole .xxxv “What is man without the beasts? If all the
beasts were gone, man would die from a great loneliness of spirit. For whatever happens to the
beasts, soon happens to man. All things are connected… “xxxviA is a vital importance to all of us
because in protecting plant, animal and fish species, we are, in turn, protecting the human race
for generations to come.
i
Endangered Species Act of 1973 SEC. 2. [16 U.S.C. 1531] http://epw.senate.gov/esa73.pdf
ii
Douglas Chadwick, quoted in Bonnie B. Burgess, Fate of the Wild: The Endangered Species
Act And The Future of Biodiversity,The University of Georgia Press, 2001 at 20.
iii
Robert E. Gordon, The Endangered Species Act Is a Failure, in Endangered Species:
Opposing Viewpoints, Greenhaven Press, 1996 at 67.
iv
A list of contributing factors for the decline of species can be found at David Goodnough,
Endangered Animals of North America: A Hot Issue, Enslow Publishers (2001) at 25-27.
v
Joe Roman, Listed: Dispatches From America’s Endangered Species Act, Harvard University
Press (2011), at 55.
vi
Goodnough at 11-14.
vii
Goodnough at 14.
viii
Goodnough at 41.
Goodnough at 8.
x
Goodnough at 44.
xi
Roman at 54
xiixii
Roman at 58
xiii
Roman at 58
xiv
Endangered Species Act of 1973 SEC. 2. [16 U.S.C. 1531] found at
http://epw.senate.gov/esa73.pdf
ix
xv
Roman at 53.
Roman at 53.
xvii
Roman at 53, 54.
xviii
Roman at 53.
xix
Goodnough at 37, 38.
xx
Goodnough at 37, 38.
xxi
Endangered Species Act of 1973 S SEC. 4. [16 U.S.C. 1533] found at
http://epw.senate.gov/esa73.pdf
xvi
xxii
Endangered Species Act of 1973 S SEC. 4. [16 U.S.C. 1533] found at
http://epw.senate.gov/esa73.pdf
xxiiixxiii
Goodnough at 39.
xxiv
Michael J Bean, The Endangered Species Act Is Effective, in Endangered Species: Opposing
Viewpoints, Greenhaven Press, 1996 at 75, 76.
xxv
Bean at 75, 76.
Burgess at 132.
xxvii
Burgess at 55.
xxviii
Gordon at 71.
xxix
Gordon at 71.
xxx
Gordon at 68.
xxxi
Gordon at 67, 68.
xxvi
xxxii
Gordon at 71.
Burgess at 53.
xxxiv
Burgess at 53.
xxxv
Burgess at 54.
xxxvi
Burgess at 54.
xxxiiixxxiii