The Endangered Species Act requires that every U.S. plant and animal be saved from extinction, but after 50 years, we have to do much more to prevent a biodiversity crisis
A Bald Eagle disappeared into the trees on the far bank of the Tennessee River just as the two researchers at the bow of our modest motorboat began hauling in the trawl net. Eagles have rebounded so well that it's unusual not to see one here these days, Warren Stiles of the U.S. Fish and Wildlife Service told me as the net got closer.
In the late 1970s the Snail Darter seemed confined to a single stretch of a single tributary of the Tennessee River, the Little Tennessee, and to be doomed by the TVA's ill-considered Tellico Dam, which was being built on the tributary. The first step on its twisting path to recovery came in 1978, when the U.S. Supreme Court ruled, surprisingly, that the ESA gave the darter priority even over an almost finished dam.
That is, if special interests don't flout the law. After the 1978 Supreme Court decision, Congress passed a special exemption to the ESA allowing the TVA to complete the Tellico Dam. The Snail Darter managed to survive because the TVA transplanted some of the fish from the Little Tennessee, because remnant populations turned up elsewhere in the Tennessee Valley, and because local rivers and streams slowly became less polluted following the 1972 Clean Water Act, which helped fish rebound.
But loss of faith began five years later with the Snail Darter case. Congresspeople who had been thinking of eagles, bears and Whooping Cranes when they passed the ESA, and had not fully appreciated the reach of the sweeping language they had approved, were disabused by the Supreme Court. It found that the legislation had created, “wisely or not ... an absolute duty to preserve all endangered species,” Chief Justice Warren E. Burger said after the Snail Darter case concluded.
Requirements the ESA places on federal agencies such as the Forest Service and the Bureau of Land Management—or on the TVA—can have large economic impacts. Section 7 of the act prohibits agencies from taking, permitting or funding any action that is likely to “jeopardize the continued existence” of a listed species. If jeopardy seems possible, the agency must consult with the FWS first and seek alternative plans.
He and other experts also say that work regarding endangered species is drastically underfunded. As more species are listed, the funding per species declines. “Congress hasn't come to grips with the biodiversity crisis,” says Baier, who lobbies lawmakers regularly. “When you talk to them about biodiversity, their eyes glaze over.
Eventually, though, “climate change is going to swamp the ESA,” says J. B. Ruhl, a law professor at Vanderbilt University, who has been writing about the problem for decades. “As more and more species are threatened, I don't know what the agency does with that.” To offer a practical answer, in a 2008 paper he urged the FWS to aggressively identify the species most at risk and not waste resources on ones that seem sure to expire.
For now habitat loss remains the overwhelming threat. What's truly needed to preserve the U.S.'s wondrous biodiversity, both Stein and Ruhl say, is a national network of conserved ecosystems. That won't be built with our present politics. But two more practical initiatives might help. When the ESA was passed, there were fewer than 10,000 Red-cockaded Woodpeckers left of the millions that had once lived in the Southeast. Humans had cut down the old pine trees, chiefly Longleaf Pine, that the birds excavate cavities in for roosting and nesting. An appropriate tree has to be large, at least 60 to 80 years old, and there aren't many like that left.
Leo Miranda-Castro, who retired last December as director of the FWS's southeast region, says the collaborative approach took hold at regional headquarters in Atlanta in 2010. The Center for Biological Diversity had dropped a “mega petition” demanding that the FWS consider 404 new species for listing. The volume would have been “overwhelming,” Miranda-Castro says. “That's when we decided, ‘Hey, we cannot do this in the traditional way.
The Center for Biological Diversity doubts that carrots alone will save the reptile. It points out that the FWS's own models show small subpopulations vanishing over the next few decades and the total population falling by nearly a third. In August 2023 it filed suit against the FWS, demanding the Gopher Tortoise be listed.
The ESA aims to save species, but for that to happen, ecosystems have to be preserved. Protecting the Northern Spotted Owl has saved at least a small fraction of old-growth forest in the Pacific Northwest. Concern about the Red-cockaded Woodpecker and the Gopher Tortoise is aiding the preservation of longleaf forests in the Southeast. The Snail Darter wasn't enough to stop the Tellico Dam, which drowned historic Cherokee sites and 300 farms, mostly for real estate development.
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