Commit c553259c authored by Jean Michel Rouly's avatar Jean Michel Rouly

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<h1>Congress and Charismatic Megafauna: a Legislative History of the
Endangered Species Act</h1>
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<h2>Shannon Petersen</h2>
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<p><em>
The author explores the Endangered Species Act's past to provide a thorough
analysis of the expectations of the bill upon its passage in 1973. The Act was
sold on the passionate images of large and breathtaking wildlife. Further,
legislative history indicates that many of the problems that the ESA has
encountered were not foreseen. Since 1973 the scientific understanding of the
scale of threatened extinction and the needs of endangered species has grown,
indicating that a much greater effort and cost than originally thought will be
needed to preserve species. Meanwhile, judicial interpretation of the Act has
broadly expanded its power. Though both the strengths and weaknesses of the ESA
trouble many, the experience of the ESA offers great wisdom for the future of
environmental protection.
</em></p>
<blockquote>
The last word of ignorance is the man who says of an animal or plant: 'What
good is it?'... If the biota, in the course of aeons, has built something we
like but do not understand, then who but a fool would discard seemingly useless
parts? To keep every cog and wheel is the first precaution of intelligent
tinkering.'<br/>
-Aldo Leopold
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<blockquote>
I would be in favor of undertaking tremendous costs to preserve the bald eagle,
and other major species, but that kind of effort is out of proportion to the
value of the woundfin minnow, or the snail darter, or the louse wort, or the
waterbug, or many others that we are attempting to protect.<br/>
-Senator Jake Garn (R-Utah)
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<h2>I. Introduction</h2>
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Coming soon!
Today, the Endangered Species Act of 1973 (ESA) stands among the strongest of
environmental laws. The U.S. Supreme Court has described it as "the most
comprehensive legislation for the preservation of endangered species ever
enacted by any nation." The ESA is also unique among environmental laws because
its link to the protection of human health and quality of life is most tenuous.
For this reason, historian Roderick Nash has called it "the strongest American
legal expression to date of environmental ethics." Secretary of the Interior
Bruce Babbitt describes the ESA as "undeniably the most innovative,
wide-reaching, and successful environmental law which has been enacted in the
last quarter century." But while the ESA may be the "crown jewel of the
nation's environmental laws," it is also the "pit bull of environmental laws."
</p>
<p>
The power of the ESA rests primarily in three sections: section 4, section 7,
and section 9.9 Together, these sections form the substantive foundation of the
Act, and the source of most controversy over the ESA today. The ESA also
includes a citizen suit provision that has served as a powerful tool for
environmental groups to expand and enforce the powers in sections 4, 7, and
9.10 Indeed, litigation has played a crucial role in expanding the scope of the
Act and provoking controversy. Although many other sections of the Act provide
significant protection for species, these three sections are the most
important. Section 4 instructs the Secretaries of the Interior and Commerce to
list species as either threatened or endangered "solely on the basis of the
best scientific and commercial data available."" The Secretary of the Interior,
responsible for avian, terrestrial, and freshwater species, has delegated the
power to the National Marine Fisheries Service. The ESA defines the term
"species" to include subspecies of fish or wildlife or plants, and distinct
population segments of vertebrate fish or wildlife, that interbreed when
mature.' 3 Endangered species are those in danger of extinction throughout all
or a significant portion of their range, while threatened species are those
likely to become endangered in the near future.' Species eligible for listing
include all plants, mammals, fish, birds, amphibians, reptiles, mollusks,
crustaceans, arthropods, or other invertebrates.' Section 4 precludes any
consideration of economic factors when determining whether or not a species
should be listed as threatened or endangered.
</p>
<p>
Labeled "Interagency Cooperation," section 7 commands federal agencies not to
take any action that might harm a listed species. Specifically, it directs all
federal agencies to consult with the Secretary to ensure that "any action
authorized, funded, or carried out by such agency... is not likely to
jeopardize the continued existence of any endangered species or threatened
species."' 7 Originally twelve lines long, this section has since expanded to
several pages, beginning with a series of amendments starting in 1978.18 The
power of section 7 came not from amendments, however, but from the judiciary.
In Tennessee Valley Authority v. Hill, 19 decided in 1978, the U.S. Supreme
Court interpreted section 7 as an absolute bar against any federal action that
might jeopardize a listed species. The Court's decision in that case halted
the completion of Tellico Dam on the Little Tennessee River to protect the
endangered snail darter, a small fish.
</p>
<p>
Section 9 prohibits the taking of endangered species. 22 The term "take" means
"to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct." 23 In 1975 the Secretary of the
Interior promulgated a regulation interpreting "harm" to include activities
that result in "significant environmental modification or degradation." Under
this definition, the ESA may limit land use activities on private property that
might indirectly harm a listed species, making the ESA "perhaps the most
powerful regulatory provision in all of environmental law." The courts
consistently have upheld this broad interpretation of section 9.
</p>
<p>
The ESA's very strength, however, threatens its future. Some critics claim that
while the ESA was "[o]nce lauded as the salvation of the bald eagle and the
grizzly bear, the law often thwarts individuals and businesses from using their
property in order to protect little-known birds, rodents, and insects." In 1995
the newly elected conservative Congress pledged to "rethink, not repair"
environmental laws. Newt Gingrich (RGa.), Speaker of the House at that time,
said that it made little sense to spend money on species protection because
extinction is "the way life is." That same year, Congress succeeded in placing
a temporary moratorium on ESA listings. Since the spotted owl controversy in
the early 1990s, Congress has deadlocked over the Act, and attempts to weaken
it by amendment have failed. Nevertheless, the fate of the ESA remains
uncertain.
</p>
<p>
This Note, however, does not analyze the current debate over the ESA or propose
ways to improve the Act. Instead, it examines the Act's past, particularly its
legislative history, in an attempt to demonstrate what Congress intended when
it passed the Act in 1973. This Note concludes that the Act has had
unanticipated consequences. Specifically, it argues that Congress did not
intend to pass a law that would protect seemingly insignificant species
irrespective of economic considerations, halt federal development projects, and
regulate private property. Instead, most in Congress believed the Act to be a
largely symbolic effort to protect charismatic megafauna representative of our
national heritage, like bald eagles, bison, and grizzly bears. Congress
believed it could accomplish this simply by preventing the direct killing of
endangered species and by halting the international trade in such species.
</p>
<p>
But if this was the case, then how did the ESA eventually become one of the
most powerful and controversial of environmental laws? There are two reasons.
First, Congress and the affected economic interest groups simply lacked the
foresight to anticipate how environmental groups might use the relatively plain
language found in sections 4 and 7 to force the listing of obscure species
without economic consideration and to halt federal development projects.
Second, scientific developments after 1973, especially the popularization of
ecology and the emergence of the idea of biodiversity, led scientists and
environmentalists to a more expansive interpretation of what it meant to "take"
a species under section 9 and to "jeopardize" a species under section 7. These
developments in scientific understanding transformed section 9 from essentially
a ban on hunting to a powerful provision for the regulation of land use, and
justified the rigorous application of section 7 to save critical habitat. In
1973 it would have been difficult, if not impossible, for Congress to
anticipate such a fundamental change in circumstances.
</p>
<p>
Despite its conclusions, this Note does not argue that the ESA should be
weakened or repealed. Nor does it advocate that the courts should adhere to the
original intent of the legislators who enacted the ESA. Instead, it merely
attempts to provide a historical context for discussion about the future of
endangered species policy. This story of unanticipated consequences, while not
new, typifies much legislation, and Congress should occasionally be reminded of
it. Finally, this Note will demonstrate the important role that Congress, the
administration, and the courts played in shaping the modern environmental
movement.
</p>
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<h2>II. Protecting Species Before the ESA</h2>
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<h3>A. Saving Individual Species</h3>
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<p>
Prior to the twentieth century, the federal government played a minor role in
wildlife management. It limited its efforts primarily to the conservation of
natural resources that lay outside of state jurisdictions. For example, in 1868
Congress passed a law prohibiting the killing of certain fur-bearing animals in
the territory of Alaska. Three years later, it created the Office of the
U.S. Commissioner of Fish and Fisheries to conserve fisheries along the coasts
and navigable waterways. Congress also took indirect steps to secure
wildlife habitat when it passed the Forest Reserve Act of 1891, 3 4 which
authorized the President to establish national forests out of the public domain
to protect timber, water, and wildlife resources from overexploitation.
However, the various states assumed the primary responsibility for protecting
wildlife during the nineteenth century.
</p>
<p>
Whether regulation originated from the states or the federal government, the
economic logic of conservation motivated early efforts to protect wildlife.
Conservationists like President Theodore Roosevelt and the first Chief of the
U.S. Forest Service, Gifford Pinchot, believed that natural resources needed to
be managed for sustainable use so as to provide the greatest good to the
greatest number of people over time. Conservationists turned to practical
sciences, like forestry and eventually game management, to meet their
utilitarian goals. In contrast, preservationists, like John Muir, founder of
the Sierra Club, believed that nature should be protected for its own sake,
rather than merely conserved for human use.as Later in the twentieth century,
environmentalists awkwardly embraced the ideas of both conservationists and
preservationists.
</p>
<p>
Conservationist thought dominated natural resource policy throughout the late
nineteenth century, but the annihilation of the bison on the Great Plains
during the 1870s aroused some preservationist sentiment. To prevent extinction
and preserve a remnant of frontier heritage, Congress passed a bill in 1874 to
outlaw the slaughter of buffalo in the federal territories. However, President
Grant pocket-vetoed the bill. Two years later, the House passed a similar bill,
but it died in Senate Committee. In 1894, in part to protect the remaining
herds of bison, Congress prohibited hunting within Yellowstone National Park.
Nevertheless, throughout the nineteenth century federal involvement in the
conservation and preservation of wildlife remained minimal.
</p>
<p>
Instead, the states assumed the primary responsibility for wildlife management.
State laws, however, were not intended to protect species per se, but usually
took the form of fish and game regulations designed to guard the interests of
sport hunters. In 1896, the Supreme Court validated the states' power to
regulate wildlife in Geer v. Connecticut." In that decision, the Supreme Court
held that the states have the "undoubted authority to control the taking and
use of that which belonged to no one in particular but was common to all." But
almost as soon as the courts articulated this state ownership doctrine, it
began to erode.
</p>
<p>
Early in the twentieth century, progressive conservationists began to wrest
control of wildlife management from the states. The first significant direct
step toward national wildlife regulation came when Congress passed the Lacey
Act of 1900. The inability of states alone to prevent species extinctions
motivated the Act's sponsor, Representative John Lacey (R-Iowa). The Lacey Act
prohibited interstate commerce in animals, birds, or their products killed in
violation of state law, and required the Secretary of Agriculture to take
measures to ensure the preservation, introduction, and restoration of game
animals and birds. The Act recognized the national scope of species protection
problems and marked the beginning of federal involvement in species
preservation.
</p>
<p>
Three years after its passage, President Theodore Roosevelt created the first
national refuge explicitly for the protection of wildlife on Florida's Pelican
Island. Roosevelt also extended federal involvement in wildlife management
indirectly by greatly expanding the U.S. forest reserves. The federal
government thus extended protection to species both directly and indirectly.
</p>
<p>
In 1914, the last passenger pigeon, a species that had once covered the skies
in flocks numbering in the millions, died in a zoo in Cincinnati. Partly in
response to this tragedy, the United States signed the Migratory Bird Treaty of
1916 with Canada, recognizing for the first time the international scope of the
extinction crisis. Two years later, Congress ratified this treaty with the
Migratory Bird Treaty Act of 1918. 54 The state of Missouri, however, promptly
challenged the constitutionality of the law under the Tenth Amendment, invoking
the state ownership doctrine to claim exclusive state regulation of wildlife.
In the landmark decision of Missouri v. Holland, the Supreme Court upheld
the Act based on the federal treaty making power and rejected outright the
contention that the state ownership doctrine precluded federal regulation. In
1929, Congress extended bird protection with the Migratory Bird Conservation
Act.
</p>
<p>
New Deal conservationists took more indirect--but potentially more
effective-steps to slow extinctions. In 1934, Congress passed the Fish and
Wildlife Coordination Act. It directed the Secretary of the Interior to
investigate the effects of "domestic sewage, trade wastes, and other polluting
substances on wild life." It also encouraged dam-building agencies to consult
with the Bureau of Fisheries about the potential impact on fish before a dam
would be built. The voluntary nature of these two provisions doomed them to
failure, but they were nonetheless significant because they recognized the
connection between habitat degradation and wildlife health. The Fish and
Wildlife Coordination Act also called for federal and state cooperation to
conserve and rehabilitate wildlife and proposed that federal lands be set aside
to protect wildlife habitat. This third provision realized some success
through the expansion of national forest reserves, national wildlife refuges,
and the national park system. In 1940 Congress passed the Bald Eagle Protection
Act to save the nation's symbol from extinction.
</p>
<p>
While Presidents and Congress made tentative steps to protect wildlife during
the first half of the twentieth century, ecology emerged as an independent
discipline. Aldo Leopold helped popularize this knowledge, teaching Americans
to care about the land and the "wild things" that live on it. About the
passenger pigeon, he eulogized: "Our grandfathers were less well-housed,
well-fed, well-clothed than we are. The strivings by which they bettered their
lot are also those which deprived us of pigeons. Perhaps we now grieve because
we are not sure, in out hearts, that we have gained by the exchange."64
Leopold, known as the father of modem wildlife management, merged science,
philosophy, and plain writing into his classic bestseller, A Sand County
Almanac, published posthumously in 1949.
</p>
<p>
By the 1960s, a growing awareness of environmental problems, including species
extinction, fostered a national environmental movement. In 1962, Rachel
Carson, a former biologist with FWS, published Silent Spring. It described how
the nation's growing addiction to pesticides, herbicides, and insecticides
poisoned wildlife and threatened human health. The image of songbirds falling
dead from suburban trees provided a graphic symbol of environmental destruction
with which people could identify and empathize. More than any other single
factor, Carson's book acted as a catalyst for the modem environmental movement.
</p>
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<h3>B. Toward Comprehensive Species Protection</h3>
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<p>
The environmental movement raised public awareness about the modem extinction
crisis, prompting the passage of comprehensive endangered species legislation.
But first, in 1964, Congress created the National Wilderness Preservation
System, which indirectly provided crucial habitat for endangered species. That
same year, the Department of Interior's Bureau of Sport Fisheries and Wildlife,
later renamed the U.S. Fish and Wildlife Service, created a Committee on Rare
and Endangered Species. ' Comprised of nine biologists, it published the first
federal list of species known to be threatened with extinction. Called the
"Redbook," the 1964 edition included sixty-three wildlife species.
</p>
<p>
In 1966 Congress passed the Endangered Species Preservation Act (1966 Act), the
first comprehensive legislative response to the modem extinction crisis. The
1966 Act directed the Departments of Interior, Agriculture, and Defense to
protect threatened species "insofar as is practicable and consistent" with the
primary purposes of the services, bureaus, and agencies within their
departments. It also charged the Department of the Interior with the duty to
consult with and "encourage" all other federal agencies to conform to the
purposes of the Act "where practicable." In addition, it instructed the
Department of the Interior to continue compiling lists of endangered species.
Most important, the 1966 Act created the National Wildlife Refuge System out of
a hodgepodge of federal lands, and authorized funds for the maintenance and
expansion of this system. Finally, the 1966 Act prohibited the "taking" of a
species or its product within these wildlife refuges without a permit.
</p>
<p>
But the 1966 Act suffered from several serious weaknesses. First, the 1966 Act
applied only to domestic vertebrate species of fish and wildlife, and did not
extend to plants, subspecies, or population segments. Second, the language of
the Act made agency cooperation explicitly voluntary, and thus contrasted with
the present interpretation of section 7 under the ESA. Most important, the
restriction against the taking of a species applied only within the National
Wildlife Refuges. Moreover, this meager prohibition did not extend to
activities that indirectly harmed a listed species. Nevertheless, the 1966 Act
directed the Department of the Interior to better identify endangered species
and provided funding to acquire wildlife habitat.
</p>
<p>
Three years later, Congress supplemented the 1966 Act with the Endangered
Species Conservation Act of 1969 (1969 Act). The 1969 Act explicitly recognized
the international scope of the extinction crisis, authorizing the expansion of
the Redbook to include those species threatened worldwide. Most importantly, it
banned the importation of any product of a species listed as endangered, which,
for example, curtailed the market in leopard, jaguar, and ocelot fur coats
that, between 1968 and 1970, accounted for 18,456 leopard skins, 31,105 jaguar
skins, and 249,680 ocelot skins. Furthermore, the 1969 Act extended the Lacey
Act by prohibiting the selling or transporting of any listed species or its
product taken illegally to include reptiles, amphibians, mollusks, and
crustaceans. Finally, the 1969 Act expanded the definition of "fish or
wildlife" to include amphibians, reptiles, and invertebrates, and called for an
international convention to protect endangered species from extinction.
</p>
<p>
That convention and two other species protection acts followed in the wake of
Earth Day on April 22, 1970. First, in 1971 Congress passed the Wild
Free-Roaming Horses and Burros Act to preserve what Congress called "living
symbols of the historic and pioneer spirit of the West." A year later, Congress
approved the Marine Mammal Protection Act, which prohibited the taking or
importation of endangered marine mammals. In the spring of 1973, the Convention
on International Trade in Endangered Species of Wild Flora and Fauna (CITES)
established an elaborate scheme of import-export restrictions for endangered
species. Significantly, both the Marine Mammal Protection Act and CITES
recognized a management classification for species threatened with being
endangered but not yet depleted enough to be called endangered, a system later
incorporated into the ESA. The inadequacy of the 1966 and 1969 Acts and a
growing appreciation for the scope of the extinction crisis led many to push
for more potent legislation for species protection. Early in 1972, President
Nixon called for the adoption of a stronger law to protect endangered species.
Nixon claimed that "even the most recent act to protect endangered species,
which dates only from 1969, simply does not provide the kind of management
tools needed to act early enough to save a vanishing species." In this address,
Nixon also announced the promulgation of an executive order barring the use of
poisons to control predators, like grizzly bears and gray wolves, on all public
lands. The same day of the President's address, Representative John Dingell
(D-Mich-) introduced in the House endangered species legislation endorsed by
the Nixon administration. Ten days later, Senator Mark Hatfield (R-Or.)
submitted identical legislation to the Senate. Congress, however, failed to
pass new species legislation in 1972.
</p>
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<h2>III. The Endangered Species Act of 1973</h2>
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<h3>A. Passage of the ESA</h3>
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<p>
Early in 1973, the 93rd Congress, dominated by Democrats, reconsidered four new
endangered species bills. On January 3, Representative John Dingell (D-Mich.)
introduced H.R. 37, co-sponsored by seventy members of the House of
Representatives. On June 12, Senator Harrison Williams (D-N.J.) introduced S.
1983. The newly re-elected Nixon administration also supported a stronger
endangered species law, and had its own bills introduced in both the House and
the Senate, where they found bipartisan support. Congress eventually approved
the Democrat- sponsored bills, H.R. 37 and S. 1983, which differed little from
the administration's proposal.
</p>
<p>
Congress debated little over the various provisions of these bills. Moreover,
the few congressional concerns centered not on sections 4, 7, or the
application of the section 9 prohibition to habitat modification, but on issues
relatively inconsequential to later developments. The most Significant topic
debated was the potential preemption of traditional state authority to manage
wildlife. Senator Theodore Stevens (R-Alaska), for example, observed that "the
bill is drawn on the basis of making the Federal law preemptive[,J" and
unsuccessfully proposed an amendment to bolster state authority under the ESA.1
0 5 The only conservation organization to oppose the ESA, the Wildlife
Management Institute, did so because it believed that the Act would usurp state
power.'
</p>
<p>
Debate over the preemption of state authority arose from section 9, although
this debate had nothing to do with whether habitat modification fell within the
definition of the take prohibition. Under the 1966 and 1969 Acts, the federal
prohibition against taking a listed species extended only to species taken
within the National Wildlife Refuge System, and, through the Lacey Act, to any
taking or trade in listed species contrary to any existing state law. No
independent federal prohibition against killing or otherwise directly harming
listed species existed outside of the National Wildlife Refuge System. Section
9 of the ESA changed this, making it a federal crime to take any listed species
anywhere within the United States. By doing so, the ESA necessarily intruded on
state prerogative.
</p>
<p>
Proponents of the ESA successfully assuaged concerns over federal preemption.
Representative James Grover (R-N.Y.) observed, "we have adequately protected
legitimate State interests, powers, and authorities, in H.R. 37 by providing
for concurrent Federal/State jurisdiction and permitting the States to enact
their own, more restrictive laws, if so desired."" Outside of Congress, ESA
supporters tried to justify the need for federal authority because few states
adequately protected endangered species. The Washington Post, for example,
argued that "the ultimate authority" for species protection should rest with
the federal government rather than with the states. Representative Dingell
stressed that the ESA would not preempt the states from enacting their own
endangered species legislation. Senator Williams stated simply that the act
"in no way limits the power of any State to enact legislation or regulations
more restrictive than the provisions of the act."
</p>
<p>
These concerns, however, were minor, and congressional support for the bills
soon became widespread and enthusiastic. In the Senate especially, debate over
the ESA was almost nonexistent. Even Senator Stevens, who initially expressed
concern over the bill's potential impact on state authority, rose to speak in
support of S. 1983, stating that while "the bill is not perfect, I believe it
takes a major step in the protection of American endangered and threatened
species. The bill's supporters also included those who would later regret their
decisions, including Bob Dole (R-Kan.), Jesse Helms (R-N.C.), Howard Baker
(R-Tenn.), Bob Packwood (R-Or.), and Mark Hatfield (R-Or.). 115 On July 24,
1973, the Senate approved S. 1983 unanimously, ninety-two to zero, with eight
Senators not voting.
</p>
<p>
House support for H.R. 37 was also strong. Representative Grover observed, "I
know of no opposition to H.R. 37 and urge its immediate passage."
Representative Dingell remarked that in the month since the committee report on
the House bill had been available for review, he had "yet to hear a whisper of
opposition to its passage at the earliest opportunity." On September 18, 1973,
the House of Representative passed H.R. 37 by a vote of 390 to 12, with 31 not
voting. None of the twelve who voted against the bill voiced their opposition
during congressional deliberations just prior to the vote.
</p>
<p>
The House and Senate bills then proceeded to the conference committee. That
committee essentially adopted the Senate version of the bill, although it
incorporated a few elements from the House bill. The conference report
explained what it believed to be all the significant differences between the
Senate and House bills, but it failed to mention at least one major difference.
For the purposes of the section 9 prohibition against the take of a listed
species, S. 1983 defined the term "take" to include actions that might "harm" a
listed species, while H.R. 37 only included actions that would directly injure
or kill a listed species. Despite its importance to later developments, this
difference went unnoticed or, at least, it provoked no comment or debate. For
the most part, however, the House and Senate bills were remarkably similar,
including the parts of section 4 and section 7 relevant to subsequent
controversies over the ESA. The topic most discussed during the conference
concerned the relatively minor point of the division of administrative duties
between the Secretaries of the Interior and Commerce.
</p>
<p>
The ESA emerged from the conference committee even more popular than it had
been before. On December 19, the Senate agreed to the conference report, again
unanimously. The next day, while the House considered the conference report
Representative Dingell observed, "It would be no exaggeration to say that
scarcely a voice has been heard in dissent." The House agreed to the conference
report by a vote of 345 to 4, with 73 representatives not voting. Those four
who voted against the Act included Robin Beard (R-Tenn.), Harold Gross
(R-Iowa), Earl Landgrebe (R-Ind.), and Robert Price (R-Tex.). None of them
articulated their opposition to the report on the floor of Congress.
</p>
<p>
The bill then proceeded to the desk of the President. President Nixon supported
the bill even though it was not precisely the initiative introduced by his
administration. During the signing ceremony, he concluded, "Nothing is more
priceless and more worthy of preservation than the rich array of animal life
with which our country has been blessed." On December 28, 1973, President Nixon
signed the ESA into law.
</p>
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<h3>B. Why?</h3>
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<p>
The ESA received such overwhelming support for a variety of reasons. First,
when Congress considered new endangered species legislation, environmentalism
enjoyed a level of popularity unknown today. Indeed, the ESA arrived on the
"peak of [the environmental] wave" and represented the "quintessential
environmental issue." The year before its passage, Tom Garrett, wildlife
conservation director for Friends of the Earth, noted that environmental
legislation, particularly wildlife protection, was "a richly rewarded political
issue." The Washington Post editorialized that there was strong public
sentiment supporting increased protection for endangered species.
</p>
<p>
Many politicians sought to capitalize on this popularity. Some hoped that by
doing so they could unite a country divided by civil rights, women's
liberation, and the Vietnam War. Nixon himself declared, "The quality of life
on this good land is a cause to unite all Americans." Nixon, sinking ever
deeper into the morass of Watergate, probably yearned for a little unity by the
end of 1973, while the Republicans in Congress may have hoped to rehabilitate
their party. Nixon, and perhaps conservatives generally, supported the ESA not
so much out of sincere commitment to species preservation, but for self-serving
reasons. To many politicians, the ESA seemed to be a win-win situation.
</p>
<p>
The mutually beneficial nature of the proposed law seemed especially true
because no significant special interest group came forward to oppose the ESA.
During the Senate hearings in June of 1973, numerous administrative agency
experts and every major environmental organization testified in support of the
ESA. Even the National Rifle Association urged the passage of a stronger act.
The only opposition came from a few groups representing state fish and game
agencies, which worried about the preemption of state authority, and from the
fur industry. Lack of significant special interest opposition was also evident
during the House hearings. With "little open opposition to the bills," there
appeared to be no reason, "except congressional inertia, for inaction."
</p>
<p>
Few at the time opposed the ESA because no one anticipated how the Act might
significantly interfere with economic development or personal property
interests. 43 One leading advocate of the ESA observed, "since someone does not
necessarily have to combat vested economic interests, some politicians use the
issue to parade themselves as environmentalists knowing they will not seriously
offend corporate interests. The timber industry, other natural resource
industries, and private property groups declined to fight the ESA in 1973
because they failed to see how the law might affect their interests. In
addition, unlike today, no organized anti-environmental coalition existed to
probe and protest proposed environmental legislation.
</p>
<p>
Members of Congress also failed to anticipate many of the Act's consequences.
In particular, they overlooked or underestimated the potential powers of
sections 4, 7, and 9, referring instead to relatively minor provisions of the
Act. Representative Dingell listed the nine "principal" changes that would be
effected by the bill's passage. None of these, however, predicted that section
4 would cause a wide diversity of species to be listed without regard to
economic considerations, that section 7 would halt federal projects that might
jeopardize species, or that section 9 might result in the regulation of land
use on private property.1 46 For Representative Dingell, at least, significant
aspects of the ESA included its distinction between threatened and endangered
species and its ban on the export of listed species.
</p>
<p>
Others believed that section 6, which provides for federal cooperation with the
states, was the most significant provision of the Act. Senator John Tunney
(D-Cal.), the Senate manager of the bill, called section 6 "perhaps the most
important section" of the ESA. Senator Stevens (R- Alaska) called section 6
"the major backbone" of the ESA. The Senate Report stated that the purpose of
the Act was to promote cooperative management between the states and the
federal government. Of course, it is difficult to ascertain whether the
legislators actually believed this or if they were just trying to assuage the
concerns over federal preemption. Nevertheless, Congress either found the
inherent powers of sections 4, 7, and 9 unworthy of debate or it underestimated
them.
</p>
<p>
To begin with, Congress failed to recognize the diversity of species protected
under section 4. Instead, it displayed a profound bias toward charismatic
megafauna.
</p>
<p>
In the House, Representative Dingell, for example, claimed that his bill would
protect American species like the eastern timber wolf, the wolverine, and the
eastern cougar, as well as the kangaroo and the elephant. Representative
Leonor Sullivan (D-Mo.), the chair of the committee that oversaw H.R. 37, urged
the passage of the ESA to protect whales and "spotted cats." No one in the
House mentioned mollusks or anthropods, and only a few mentioned plants.
</p>
<p>
Senators also referred almost exclusively to the need to protect charismatic
wildlife. Senator William Roth (R-Del.) urged the passage of the ESA because
his constituents in Delaware "admire the graceful and inspiring flight of the
few American bald eagles remaining in the state. Senator Williams, the sponsor
of the Senate bill, exclaimed, "Most animals are worth very little in terms of
dollars and cents. However, their esthetic value is great indeed. The pleasure
of simply observing them ... is unmeasurable." These sentiments applied poorly
to species like the snail darter and furbish lousewort that later aroused ESA
controversy.
</p>
<p>
Congress's failure to recognize that the ESA would protect plants almost as
much as wildlife can perhaps be explained by other reasons, too. When Congress
considered the ESA in 1973, the status of plant species was poorly understood.
To remedy this problem, Congress included a provision in the ESA, section 12,
directing the Smithsonian Institute to study and report on endangered and
threatened plant species in the United States. Congress indicated that the
results of the study would provide a basis for amending the ESA or writing new
legislation, although in the meantime plants would continue to be listed under
section 4 according to the same criteria as wildlife. When the report was
finally completed in 1974, it did not lead to any amendments in the ESA or to
additional legislation. Instead, plants continued to be listed according to
section 4. In this way, the strong protections of the ESA apply almost equally
to plants.
</p>
<p>
The Nixon administration shared congressional sentiment regarding the kinds of
species the ESA would, or should, protect. Although the Nixon administration
bills were in other ways remarkably similar to the bills introduced by the
Democrats in Congress, the administration bills explicitly did not extend
protection to threatened or endangered plants. During the signing ceremony,
Nixon's comments seemed oblivious to the change. "[T]his legislation provides
the Federal Government with the needed authority to protect an irreplaceable
part of our national heritage-threatened wildlife." Not only did Nixon ignore
plants, but his comments reflected the widespread perception of the Act as an
attempt to preserve only wildlife that was representative of the nation's
heritage.
</p>
<p>
Congress and the administration's focus on charismatic megafauna reflected the
emphasis of the news media, special interests, and, presumably, the public. In
June of 1973, The Washington Post wrote an editorial supporting the passage of
the ESA. Of the "some 900" animal species threatened with extinction, the
editorial specifically mentioned only the cheetah, the Puerto Rican parrot, and
the red wolf. A couple of months later, The Washington Post wrote another
editorial in support of the ESA, in which it focused on the plight of
endangered wolves. In September, The Washington Post published an article on
the ESA that featured a picture of a timber wolf. The article indicated that
aside from the wolf, the ESA would also protect "the bald eagle, mountain lion,