In summary, the ESA provides for the regulation of activities relating to species listed as endangered or threatened in terms of the Act as well as the protection of habitat of such species. It also prohibits certain activities with such species, while allowing limited exceptions. The Act incorporates various international commitments that are legally binding on the US, including for international trade in species. The ESA provides for permits to be
issued as well as for the development of recovery plans for species to ensure its long term survival. The Act further provides for enforcement and compliance as well as penalties for violations in terms of the Act. The ESA is enforced by Federal Agencies and sets a national standard, while still allowing for concurrent competence by states over their species in the wild.
The ESA is described by the US Supreme Court as ‘the most comprehensive legislation for the preservation of endangered species ever enacted by any nation,’354
while former Secretary of the Interior Bruce Babbitt describes it as ‘undeniably the most innovative, wide-reaching, and successful environmental law which has been enacted in the last quarter century’355
and Senator Graham describes it as the ‘crown jewel of the nation’s environmental laws’.356
However, as much as there are protagonists singing the praises of the ESA, there are also antagonists who critique its weaknesses. The ideals of the ESA will be considered in the context of strengths, but the weaknesses will also be considered in this section. Important lessons from case law as well as relevant literature will also be deliberated. The ESA was preceded by the Endangered Species Preservation Act passed by the US Congress in 1966 following concerns about the predicament of the whooping crane. The main aim of the Act was to authorise the Secretary of the Interior to list endangered species and to purchase land for the conservation of habitat of such species. The Secretary of the Interior was authorised to spend up to USD15 million per year for the purchase of habitat by the US Fish and Wildlife Service (USFWS). Federal Agencies that owned land were also encouraged to preserve endangered species habitat wherever possible.357 Considering that habitat loss is the single greatest threat to continued existence of species,358 the approach of protecting both species and habitat is sensible.
354
Tennessee Valley Authority v Hill 437 US 153, 180 (1978).
355 Bruce Babbitt ‘The Endangered Species Act and “Takings”. A Call for Innovation Within the Terms of the
Act’ (1994)24 Environmental Law 355.
356
Endangered Species Act amendments of 1993: Hearings on S. 921 Before Subcomm. On Clean Water, Fisheries & Wildlife of the Senate Comm. On Environment and Public Works, 103d Cong. 2 (1994) (statement of Sen. Graham) available at
https://archive.org/stream/endangeredspecie199402unit/endangeredspecie199402unit_djvu.txt, accessed on 14 March 2016.
357 Shannon Petersen ‘Congress and Charismatic Megafauna: A Legislative History of the Endangered Species
Act’ (1999) 29 Environmental Law 463. Michael J Bean and Melanie J Rowland The Evolution of National
Wildlife Law 3rd ed (1997).
358 David S Wilcove, David Rothstein, Jason Dubow, Ali Philips and Elizabeth Losos ‘Quantifying Threats to
Imperilled Species in the United States: Assessing the relative importance of habitat destruction, alien species, pollution, overexploitation and disease’ (1998) 48(8) BioScience 607-615.
The Act also included the first ever listing of endangered and threatened species.359 The Act applied to vertebrate native fish and wildlife species, however plants were not included. While the Act created the National Wildlife Refuge System, the ‘taking’ of species within the refuges was strictly prohibited. A shortcoming of the Act at the time was that the prohibition was limited to the refuges, which meant that endangered species outside of refuges had no protection. The Act made provision for voluntary inter-agency cooperation, which further weakened the Act as agencies were not compelled to work together. Due to some of these limitations, the Act was supplemented by the Endangered Species Conservation Act in 1969.360
The Endangered Species Conservation Act of 1969 was spurred on by public concern for whales at a time when commercial whaling was in force. The Act then expanded the purview of its predecessor by allowing the Secretary of the Interior to list foreign species ‘in danger of worldwide extinction’, while prohibiting the import of products derived from such species.361 However, listing of foreign species required the cooperation of the Secretary of State for consultations with the foreign country where the species occurs. By 1970 eight species of whales were listed under the Act as threatened as a result of commercial harvesting of whales.362 Nevertheless, at the time this listing was controversial as the Pentagon, US Department of Defence, opposed the listing of whales. It was reliant on sperm-whale oil for use in its submarines. However, regardless of protests from the Pentagon, the Secretary of the Interior listed the whales.363
Another important difference between the 1969 Act and its predecessor was that the definition of ‘fish and wildlife’ was expanded to not only apply to vertebrates, as in the 1966 Act, but now meant ‘any wild mammal, fish, wild bird, amphibian, reptile, mollusc, or crustacean.’ This had the effect of expanding the scope of application of the 1969 Act. The 1969 Act allowed a few exceptions from the general prohibitions, which included the
359 The list of endangered and threatened species was informed by the Red Book on Rare and Endangered Fish
and Wildlife of the United States which was published in 1964. This was the first official federal document of species in the US that potentially faced extinction available at http://www.fws.gov/endangered/species/faq-first- species-listed.html, accessed on 24 July 2015.
360
Shannon Petersen ‘Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act’ (1999) 29 Environmental Law 463.
361 Congress intended for the activities of US nationals not to impact foreign species requiring greater
protection. Michael J Bean and Melanie J Rowland The Evolution of National Wildlife Law 3rd ed (1997).
362 Ibid. It should be noted that the International Whaling Commission (IWC) had competence over whaling
matters, but the US public had no confidence in the IWC managing sustainable use of whales. Therefore, the public pressure to list the eight whale species persisted in federal legislation.
exceptions to import endangered fish and wildlife for zoological, educational, scientific purposes and for propagation or breeding in captivity for ‘preservation’ purposes. However, as with its predecessor, plants had no protection under the 1969 Act.364
The change in use of terminology in the title of the 1966 Act from ‘preservation’ to ‘conservation’ in 1969 is interesting to note. The term ‘preservation’ is an out-dated term, yet within three years the US adopted the more contemporary term of ‘conservation’, which is defined by the ESA of 1973 to mean ‘to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary’.365
It is further argued that the term conservation incorporated sustainable use as the intent was to prevent extinction of the species while allowing limited use under exceptional circumstances, however sustainable use is not explicitly mentioned. The term preservation was more restrictive and embraced a hands-off approach that sought to provide strict sanctuary for endangered species.
Another significant difference between the 1966 and the 1969 Act was that it directed the Secretary of the Interior to work towards a coordinated international effort for conserving wildlife. The Act directed the Secretary to ‘seek the convening of an international ministerial meeting’ in order to conclude ‘a binding international convention on the conservation of endangered species’.366
This resulted in the US convening the Plenipotentiary Conference on the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES) in Washington DC from 12 February to 2 March 1973 and the subsequent signing and entry into force of CITES.367
In the lead up to the ESA President Nixon in his Environment Message stated that the prevailing law:
simply does not provide the kind of management tools needed to act early enough to save a vanishing species. In particular, existing laws do not generally allow the Federal Government to control shooting, trapping, or other taking of endangered species.368
This statement was made in the same year as the first-ever United Nations Conference on the Human Environment (UNCHE) that took place in Stockholm in June 1972,
364
Ibid.
365 ESA Section 3(3).
366 Michael J Bean and Melanie J Rowland The Evolution of National Wildlife Law 3rd ed (1997). 367 See section 3.2.1 above.
368 Richard Nixon ‘Special Message to the Congress Outlining the 1972 Environmental Program’ February 8,
1972. Online by Gerhard Peters and John T. Woolley, The American Presidency Project available at http://www.presidency.ucsb.edu/ws/?pid=3731, accessed on 14 July 2015.
culminating in the Stockholm Declaration.369 From President Nixon’s speech it is evident that there were serious concerns regarding the use of species and lack of sufficient regulation for activities like shooting, trapping and taking of species.
On 28 December 1973, President Nixon signed the Endangered Species Act (ESA) of 1973 into law. Upon signing of the ESA, President Nixon stated that ‘nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed.’370 The 1973 ESA applies to species of fish, wildlife and plants.371 While the ESA scope was broader than its predecessors of 1966 and 1969, the sentiment carried by the President’s speech still reflected one of concern predominantly for animals.
The ESA of 1973 repealed its 1969 predecessor, the Endangered Species Conservation Act. In the preamble to the ESA, Congress found that in the US certain species of fish, wildlife and plants have been rendered extinct as a result of development and economic growth with little or no regard for conservation.372 It is argued that such economic development with no regard for conservation was contrary to the notion of sustainable development, which included economic development that took account of social and ecological considerations.373 Congress further noted that other species numbers have declined to levels where they face great risk of extinction and that these species ‘are of aesthetic, ecological, educational, historical, recreational and scientific value to the Nation and its people.’374
While it is noted that ecological value is mentioned, the values that Congress placed on these species were predominantly people-centred values for which there were benefits to people, as opposed to the altruistic existence value of species. However, some antagonists may argue that the ESA is opposed to economic development with too much emphasis on the aesthetic and moral justification for species protection.375 Nevertheless the
369 Stockholm Declaration. Declaration of the United Nations Conference on the Human Environment 1972
available at
http://staging.unep.org/Documents.Multilingual/Default.Print.asp?DocumentID=97&ArticleID=1503&l=en, accessed on 18 May 2014.
370 President Nixon’s Statement on Signing of the Endangered Species Act of 1973, 374 Pub. Papers 1027-28
(Dec. 28, 1973).
371 ESA Section 2(4).
372 ESA Section 2(a) Findings.
373 See chapter 2 of this thesis for a full discussion on sustainable development and sustainable use. 374 See chapter 2 of this thesis for a discussion of the values that humans place on species.
375 Zygmunt J.B. Plater ‘The Embattled Social Utilities of the Endangered Species Act – A Noah Presumption
ESA regulatory processes provide for a utilitarian approach to species, which is discussed further below.376
As part of the international community Congress also acknowledged the US responsibilities for implementation of various international agreements. The ESA therefore incorporates the US obligations in terms of the Migratory Bird Treaty Act,377 the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere,378 the International Convention for the Northwest Atlantic Fisheries (ICNAF),379 the International Convention for the High Seas Fisheries of the North Pacific Ocean (INPFC),380 CITES381 and other international agreements. The Migratory Bird Treaties, ICNAF, INPFC and CITES have been described earlier in this chapter.