Endangered Species Act: a radical piece of legislation

Endangered Species Act (1973) provided the most sweeping overhaul of governmental regulation of wildlife in history . . . now in its third decade of success in conservation -- but controversy about this law is increasing . . .

How did we get to this point?

states provided some precedents -- New York Environmental Conservation Law 1970 banned sale of endangered wildlife and their parts and included a list of protected species (longer than the current federal list of endangered species, including all cats and crocodilians) -- but did not protect habitats of these species -- this NY law prompted Congress to enact the . . .

Endangered Species Act 1973 . . .

  1. bans imports or sale of endangered species (as listed by the Secretary of the Interior) or their parts
  2. prohibits "taking" of species on this list
  3. bars federal agencies from any action that jeopardizes critical habitat of a listed species
  4. allows legal suits by citizen interest groups
  5. creates a second category of species (threatened) that can be killed provided there is reasonable evidence that a particular individual is responsible

first provision above clearly follows in the footsteps of the Lacey Act 1900, New York Environmental Conservation Law, and CITES -- nothing radically new here -- but remaining provisions are all new

second provision above has been interpreted broadly by US Supreme Court -- Babbitt versus Sweet Home...(1995) bars real estate development that destroys critical habitat -- even when no federal agency is involved

third provision also has sweeping effects -- most famous test involved a small fish restricted to a few small rivers in TN -- snail darter -- its habitat was jeopardized by a federally funded dam that was almost finished -- US Supreme Court upheld mandate to halt this project (Tennessee Valley Authority versus Hill 1978)

Congress then amended ESA to create an Endangered Species Committee with authority to exempt projects when no reasonable alternatives exist -- but the new Committee failed to exempt the dam -- so Congress finally passed its own special exemption for this dam

nevertheless the legal precedent for preservation of critical habitats of endangered species had been established -- also Endangered Species Committee established with authority to make final decisions

fourth provision is still unclear -- courts have tended to require people bringing suits to have an economic interest in the outcome -- rather than a general concern about the environment

other federal legislation that protects endangered species . . .

  • Marine Mammal Protection Act 1972 bans imports of baby seals and their fur

  • African Elephant Conservation Act bans imports or sale of ivory in accordance with international treaties

  • separate law protects Bald Eagles and sale of their feathers -- even feathers taken before implementation of the law -- challenged by Native Americans who use eagle feathers for ceremonies -- US Supreme Court upheld prohibition on sales of feathers taken beforehand (1979) -- because the law did not prohibit possession of such feathers it did not constitute unlawful taking of property by the federal government

  • International Convention for Regulation of Whaling 1946 (also US laws ratifying the treaty) established International Whaling Commission -- imposed moratorium on commercial whaling since 1986 -- Japan claims its current whaling is limited to scientific research -- disputed but US has not taken any punitive actions against Japan as a result -- US Supreme Court ruled that provisions of the treaty allowed but did not require such actions

  • Control of International Traffic in Endangered Species CITES -- treaty that bans international trade in endangered species or their parts