The Endangered Endangered Species Act
The Endangered Species Act (ESA), a landmark piece of 20th-century legislation designed to protect one of our most crucial natural resources—biodiversity—is under attack in the 21st century.
The law has succeeded because of its solid grounding in science. And it's exactly this foundation that a series of recent bills has sought to weaken.
Why the ESA matters
Biodiversity is a precious resource. Our planet's rich variety of plant and animal life provides many important products and services—from foods and medicines to clean water and pest control—as well as a multitude of less tangible benefits.
Biodiversity is also a non-renewable resource. In response to growing public awareness of the fragility of our biological heritage—culminating in Rachel Carson's 1962 bestseller Silent Spring—Congress passed the Endangered Species Act by overwhelming bipartisan majorities, and the bill was signed into law by President Nixon in 1973.
The ESA has been a success, with countless species having gained protection and many maintaining or gaining population thanks to the law. Critics often focus on the low percentage of species that have been delisted, but this ignores the reality that recovery can take decades, and a species that is still listed may be making solid progress. Many of the ESA's most inspiring success stories involve such species—including the sea otter, the California condor, and the green sea turtle.
How the ESA works
The Endangered Species Act is administered by two federal agencies: the National Marine Fisheries Service (NMFS) for marine species, and the Fish and Wildlife Service (FWS) for everything else. When a proposal to list a species under the ESA is submitted, the agency conducts a review, using "the best scientific and commercial data available," as the language of the ESA requires, to determine the species' status under the law.
When the review of the science is complete, the agency publishes a proposed rule, and after a public comment period, a final determination is made. If the species is listed as endangered or threatened, the agency then produces a recovery plan and designates certain areas as "critical habitat" for that species. The entire process typically takes several years.
Crucially, the law dictates that listing decisions must rely on science alone. Economic or social impacts of protection measures are considered only in developing the recovery plan once a species has been listed.
Attacks on the ESA
The Endangered Species Act has often generated controversy because its enforcement requires changes in our land use. But in recent years, opponents have moved from challenging specific listing decisions or recovery measures to attacking the core of the law—its reliance on science.
A flurry of recent bills and riders in Congress have sought to weaken the scientific basis of ESA, either by adding unnecessary burdens to the review process or by legislating the status of individual species. We've summarized some of the worst of these bills below.
Attacking the Scientific Basis of the ESA: Recent Legislation
|2005||H.R.3824 (the "Threatened and Endangered Species Recovery Act") would have prohibited scientists from considering an animal’s historical range, removed modeling as a tool for scientific analysis, and given political appointees the ability to set criteria for scientific data. The bill passed the House but failed in the Senate. Learn more >|
|2014||H.R.4315 (the "Endangered Species Transparency and Reasonableness Act") would require all data used in a listing decision to be published online in full, creating both a major drain on agency resources and a roadblock to using data that is proprietary, confidential, or unpublished. The bill passed the House but did not move in the Senate. Learn more >|
|2014||H.R.4317 (the "State, Tribal, and Local Species Transparency and Recovery Act") would require agencies to consider all data submitted by state, local, or tribal stakeholders, regardless of data quality or source. The bill was packaged with H.R. 4315 and passed the House but did not receive consideration in the Senate. Learn more >|
|2014||A rider attached to the 2014 "cromnibus" budget bill prohibited the use of funds to protect two species of sage grouse under ESA, in direct defiance of the Act's insistence that all listing decisions be based on the best available science. Learn more >|
|2015||H.R.2134 (the "Listing Reform Act") would have required economic considerations to be incorporated into listing decisions, in direct contradiction to the language of the ESA. The bill is pending before the House Natural Resources Committee. Learn more >|
|2015||S.112 (the "Common Sense in Species Protection Act of 2015") would have mandated additional economic analyses of all actions taken under the Act, without providing additional funding, thus effectively slowing down agency action. The bill is pending before the Senate Environment and Public Works Committee. Learn more >|
|2015||S.292 (the "21st Century Endangered Species Transparency Act") and S. 736 (the "State, Tribal, and Local Species Transparency and Recovery Act") were essentially Senate revivals of H.R. 4315 and 4317 from the previous year (see above). Both bills are pending before the Senate Environment and Public Works Committee. Learn more >|
|2015||A series of bills aimed at individual species would have prevented ESA-based action to protect the gray wolf (H.R.843, 884, and 1985), the northern long-eared bat (H.R.1589), and two species of sage grouse (S.1036). None of the bills have passed, but they have been used as the basis of “riders” in spending legislation. Learn more >|
|2015||S.1142 (the "Native Species Protection Act") would have prohibited action under the ESA to protect any species whose range was entirely within the borders of one state. The bill has not passed. Learn more >|
|2017||S. 935 (the Endangered Species Management Self-Determination Act) would requires the state Governor’s approval of a listing, diminishing the important role of science and inserting politics into a science based decision.|
|2017||S. 735 (the State, Tribal, and Local Species Transparency and Recovery Act) would redefine best available science as science provided by the state and local governments rather than the best peer reviewed collection of data and research currently used by the Fish and Wildlife Service.|
|2017||H.R. 5538 (the House Interior/EPA Appropriations Bill) has a rider that would prohibit the FWS from even considering listing the sage grouse regardless of the scientific justification for doing so. Riders, such as the sage grouse rider, are unnecessary and unrelated amendments within must-pass legislation in an attempt to push forward unfavorable or contentious legislative actions.|
|2017||S. 164 (A bill to direct the Secretary of the Interior to reissue the final rules relating to the listing of the gray wolf in the Western Great Lakes and the State of Wyoming under the Endangered Species Act of 1973) would undermine the use of science and instead make listing decisions based on political whim.|
There has also been controversy over scientific integrity and the ESA, with political or commercial interests appearing to trump the science on many occasions. Such incidents were common among the abuses of science that the UCS Scientific Integrity Program documented in the early 2000s.
But scientific integrity issues involving ESA enforcement are not a thing of the past. For example, in 2011 FWS intervened in the selection of a review panel for a decision on delisting the gray wolf, rejecting scientists who had publicly criticized the proposal. And in 2014, FWS leadership chose to disregard the advice of its scientists in declining to pursue listing of the wolverine.
A 2015 UCS survey of FWS scientists suggested that these may not have been isolated incidents; over 70 percent of respondents said they thought the level of consideration given to political interests at the agency was too high.
Defending the ESA
Attacks on the Endangered Species Act are not likely to stop anytime soon—so we need to keep fighting back. UCS is speaking out against anti-ESA legislation and partnering with other organizations through the Endangered Species Coalition to defend the Act and the precious biological heritage it protects.