The Endangered Species Act (ESA) - Detailed Study Notes

The Endangered Species Act (ESA)

Introduction and Public Perception

• The Endangered Species Act (ESA) is one of the most recognizable environmental laws for the general public, often associated with "cute" or "cool" animals like polar bears.

• It's important to understand the practical operation of the ESA, as many endangered species are not considered charismatic, and its reach extends far beyond direct interaction with animals.

Core Prohibition: "Taking" of an Endangered Species

• The ESA primarily prohibits the "taking" of an endangered species once it is listed. The act specifies which species are endangered.

• Definition of "Taking": The term "take" is broadly defined to include a wide range of actions:

  • Harass

  • Harm

  • Pursue

  • Hunt

  • Shoot

  • Wound

  • Kill

  • Trap

  • Capture

  • Collect

• Babbitt v. Sweet Home Chapter of Communities for a Great Oregon: This landmark Supreme Court case addressed whether destroying an animal's habitat constitutes "taking" the animal, even if the animal itself is not directly killed.

  • The Supreme Court ruled yes, habitat destruction can be considered a "take."

  • The Court deferred to the agency's interpretation (under the Chevron doctrine).

  • They also cited a common-sense understanding that "harm" (which is included in "take") extends to actions that destroy an animal's living environment (e.g., burning down a house harms the occupant, even without physical contact).

  • The existence of Incidental Take Permits within the ESA supported this interpretation; if habitat destruction wasn't harm, these permits would be illogical.

Incidental Take Permits (ITP)

• An Incidental Take Permit allows a project to proceed if it might incidentally impact critical habitat for endangered species.

• It provides authorization for developers or entities to impact a specific piece of critical habitat without being liable under the ESA, provided certain conditions are met.

• These permits are crucial for allowing development while attempting to mitigate environmental damage.

Listing Endangered Species

• Administering Agencies:

  • The Fish and Wildlife Service (FWS) handles inland species.

  • The National Oceanic and Atmospheric Administration's (NOAA) Marine Fisheries Department handles ocean species.

• Listing Process:

  • Agencies can propose species for listing by setting criteria, which is done through notice and comment rulemaking (a public process where comments are collected before a final rule is issued).

  • Individual citizens can also propose animals for listing if they meet the established criteria.

• Five Criteria for Listing: A species can be listed if it meets any one of these criteria:

  1. Its habitat is being destroyed.

  2. Predation is lowering its population.

  3. It is a particularly critical animal being overconsumed for some reason (e.g., commercial exploitation).

  4. Disease or predation.

  5. Other natural or manmade factors affecting its continued existence.

• Only one criterion needs to be met and established through public notice and common rulemaking to get a species listed.

Cost Consideration and the "God Committee"

• Initial ESA Stance: The ESA was initially drafted to consider cost irrelevant. If a species was endangered, it was protected, regardless of the economic expense.

• Tennessee Valley Authority (TVA) v. Hill: This pivotal case involved a federal project (dam construction) by the TVA that threatened the snail darter, a tiny fish.

  • TVA argued against halting the project due to significant financial investment (millions of dollars already spent), potential job losses, and economic disaster.

  • Environmentalists argued for the protection of the snail darter.

  • The Supreme Court ruled that since the statute made no mention of cost, the project must be halted to protect the endangered species, effectively shutting down the dam construction.

• Congressional Amendment and the "God Committee": Following public outcry and the Supreme Court's decision, Congress amended the ESA to include cost considerations.

  • They created the "God Committee," officially known as the Endangered Species Committee.

  • Composition: Seven cabinet-level administrators, including:

    • Director of the EPA

    • Secretary of Agriculture

    • Secretary of the Interior

    • Chairman of the Council of Economic Advisers

    • Secretary of the Army

    • Director of the National Oceanic and Atmospheric Administration (NOAA)

    • One congressional representative from the impacted state.

  • Power: If a majority of this seven-member committee decides that a project is worth it, even if it affects endangered species, the project can move forward.

• Postscript on TVA v. Hill: After the ESA was amended and the dam was eventually built, it was discovered that the snail darter population was much healthier than initially thought and was not wiped out.

Section $7$ Consultation

• Requirement: Section $7$ of the ESA imposes consultation requirements on all federal government actions.

• Anytime the federal government undertakes a project or provides funds for a project, it must consult with the Fish and Wildlife Service (or NOAA Fisheries) regarding potential impacts on endangered species.

• Biological Opinion: The FWS (or NOAA Fisheries) issues a biological opinion, which serves as a binding requirement for the project to comply with and protect endangered species.

• National Association of Home Builders v. Defenders of Wildlife: This Supreme Court case (originating in Arizona) illustrates the scope of Section $7$ consultation.

  • Arizona sought primacy over the Clean Water Act (meaning the state would administer the CWA instead of the EPA).

  • The Clean Water Act specifies $9$ criteria a state must satisfy to gain primacy, and if all are met, the EPA "shall grant primacy" (no discretion).

  • None of these $9$ criteria included Section $7$ consultation under the ESA.

  • The Supreme Court ruled that because the CWA statute used the mandatory term "shall" and provided no discretion, Section $7$ consultation did not apply in this specific context.

  • The general rule: If a statute provides discretion (e.g., "the agency may issue it if… "), then Section $7$ consultation applies. If there is no discretion ("the agency shall issue it if… "), and Section $7$ is not explicitly listed, it typically does not apply.

• Broad Application: Section $7$ consultation applies to a wide range of federal actions, including obtaining Clean Water Act or Clean Air Act permits. Even small businesses might encounter it if their operations require federal permits that could impact endangered species, potentially imposing binding requirements through a biological opinion.

Recovery Plans

• Once a species is listed as endangered, a recovery plan is developed.

• Purpose: These plans outline the steps needed to help the species recover and no longer be endangered.

• Characteristics: Recovery plans must include measurable, quantifiable goals.

• Timeline: While there's no strict legal deadline, the goal is typically to achieve recovery within $3$ to $6$ years, though this target is often missed.

Habitat Conservation Plans (HCPs)

• HCPs are plans specifically for those who receive incidental take permits.

• Example: If a housing subdivision project requires backfilling navigable waters (necessitating a Clean Water Act Section $404$ permit), and Section $7$ consultation identifies endangered species like willow flycatchers, an incidental take permit would be required.

• Under this incidental take permit, a Habitat Conservation Plan would mandate specific actions to protect the environment and mitigate impacts on the species (e.g., building new wetland habitat).

• Real-world example: A mine reopening project required building extensive artificial wetland habitat (a "Hilton of boreal toad habitat") to mitigate the impact on the endangered boreal toad, as part of the HCP required by the biological opinion from Section $7$ consultation for various permits (Clean Air Act, Clean Water Act, RICWR).

Habitat Loss Mitigation

• This concept dictates that if habitat is destroyed or impacted, it must be mitigated.

• Mitigation can involve:

  • Constructing artificial wetlands.

  • Buying and protecting existing habitat elsewhere.

  • Offsetting any negative impacts by acquiring, protecting, or building additional equivalent habitat.

Safe Harbor Agreements

• Alternative to ITPs: Safe Harbor Agreements offer an alternative to incidental take permits.

• Mechanism: Landowners enter into agreements with the federal government to proactively protect portions of their land as habitat for endangered species.

• Benefit: In exchange, if future projects on their land result in incidental "takes" (up to a certain agreed-upon number), they are already protected from liability.

• It's a way to anticipate and preempt the need for an incidental take permit by demonstrating prior conservation efforts.

Delisting Species

• Complexity: Delisting is a complex and often controversial process.

• Reasons for Delisting:

  • Historically, sometimes species were delisted because initial data was inaccurate, and the population was healthier than believed.

  • Currently, delisting typically requires a demonstration that the population has recovered, its habitat is stabilized, and the original threat no longer exists.

• Process: Delisting is also conducted through notice and comment rulemaking.

Other Species Protections

• State Endangered Species Programs: Many states have their own endangered species programs, which may list additional species (often including plant species that are less commonly covered by the federal ESA).

• Migratory Bird Treaty Act (MBTA):

  • International Treaty: An international treaty with Canada that is now federal law in the U.S.

  • Stringent Enforcement: Very stringent, carrying criminal liability for violations.

  • Scope: Covers approximately $800$ species of birds, including common species like turkey vultures, common ravens, bald eagles, and various woodpeckers.

  • Prohibition: It is illegal to kill, capture, or harm these migratory birds.

  • Practical Implications: Large facilities (e.g., mines, power plants) often employ "bird hazers" (professional scarecrows) to deter birds from dangerous areas due to the substantial liability associated with harming even a single migratory bird.

  • Observation on Behavior: Anecdotally, endangered birds sometimes appear less adept at avoiding dangers (like power lines), necessitating even greater protective measures due to the high liability.

• Wildlife Refuge Designations: The federal government can designate federally held land as a wildlife refuge, specifically for the protection of wildlife, including endangered species. This will be discussed in more detail in later courses.