How to Save a Species in Court

The federal government is legally obliged to fork out money to save species. Despite the best efforts of the current administration, and of republicans since time immemorial, US environmental policy remains the envy of the world. Whilst there are older pieces of conservation legislation, the Endangered Species Act of 1973 is by far the most famous. This act commands the government to provide funds for the management of endangered species until they are no longer endangered. This altogether seems like a good idea, because god knows they would not hand over the money willingly. Many politicians are in the pockets of fossil fuel companies, and thus protection of the environment is seldom a priority, nor a tenable party line. For this tenuous arrangement to have any chance of success, we must be clear as to which species are endangered, and how we determine when this is no longer true. These are not trivial tasks. Navigating the legal system to propose a candidate species for listing status is hard enough. Achieving recovery goals when the forests continue to be cleared, and strip malls continue to be built, is a veritable nightmare.

Let’s start with listing. In order for a species to be considered endangered, there must exist sufficient information on the organism’s biology and the threats that jeopardize its continued existence. The burden of proof is on the scientists to demonstrate that the species has declined, and is in imminent danger of going extinct. Essentially, we must show that intervention, and therefore federal funding, is necessary. Species status assessments are typically hundreds of pages long, subject to a public comment period, and scrutinized by the best legal minds in the country. Despite such stringent criteria, we actually have a backlog of ‘candidate’ species; species that qualify for endangered status, but the US Fish and Wildlife Service has yet to get round to. I think this says something about the current state of the planet; a savage indictment if ever I’ve seen one.

Many species that have been listed continue to decline because no recovery plan exists that outlines the steps needed to delist. By law, this recovery plan must be formulated within five years of the listing decision, but if the USFWS is overwhelmed (and given that the most recent estimates put over 1 million species at risk of extinction, ‘overwhelmed’ is their new default), endangered species can sit idle for decades. Indeed the situation is so bad, concerned parties are often forced to sue the federal government for its inaction, in the hope of chivying things along. The squeakiest wheel gets the oil. The species I studied for my PhD, the reticulated flatwoods salamander, was first listed in 1999. A codified recovery plan still does not exist for the species. We have sued the USFWS at least twice. There is no guarantee that these animals will still be around when the money finally starts to roll in.

But perhaps I shouldn’t complain too vehemently. By all rights, the ESA is not strictly constitutional. In 1913, the Migratory Bird Act was introduced, largely owing to the concern of duck hunters at recent declines in waterfowl (who would’ve thunk it ay? If you shoot all the birds, there won’t be as many next year). Less than 12 months later however, the act was deemed unconstitutional, owing to it violating states’ rights by essentially granting ownership of birds to the federal government. I am torn on this decision. As a liberal, I approve of limiting all forms of power; the people that scare me the most are the politicians, the priests, and the police officers. But as a biologist, I don’t want to see the ducks go extinct. Luckily, rather than scrapping the law altogether, they sought a loophole. In 1918 the Migratory Bird Treaty was enacted, an international agreement between the United States, Canada, and Mexico. Such a multinational pact circumvents the power dynamic inherent in the US political system and grants the federal government license to do pretty much whatever it wants. I don’t understand it either, but I take solace in the fact that nobody does.

Given the rigmarole involved in establishing protection for birds, one would think more than half a century later, when plans were being drawn up for the protection of all animals, a similar kerfuffle could be easily avoided. I believe they call it ‘precedent’ in legalese. But if you thought that, you’d be a fool. When I was first taught the history of environmental legislation in North America, during the pursuit of my doctorate degree, my immediate and genuinely innocent question as an ignorant foreigner was: “why then is it not the Endangered Species Treaty?” No answer was forthcoming. Curious. The ESA has stood relatively unchallenged for almost fifty years, so perhaps it’s not a big deal, but it just seems peculiar, and not to mention rather risky, to base so much of our environmental policy on such shaky legal foundations. The ESA has achieved a tremendous amount of good work in its history, but if someone truly wants to besmirch this piece of legislation, I’m not sure we can defend it.

For now, the money continues to flow. We still have a bias problem, whereby most of the funding is earmarked for a handful of charismatic species; bald eagles and Florida panthers receive more federal dollars than some entire groups of animals. But the public are perhaps more to blame than the government on that front. Perceptions of animals are tightly linked to how much effort we are willing to expend to protect them. Stricter emission policies and broader protections for wildlife will be essential as we progress through the 21st century. The system is far from perfect, but laws are far from immutable. The law is a work in progress; it used to be illegal to be gay. In many countries it still is. Laws must be constantly updated in step with the march of society. Environmental law is no different. I blame Religion for our backward take on justice, but I am already over my word limit, so I’m not opening that can of worms. After all, blasphemy is a crime in some places. I’ll see you in court.

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