A Force of Conservation, the Endangered Species Act Faces a Fraught Future

In the past half century, the ESA has prevented the extinction of 99 percent of the species listed under its protection. Beyond the Bald Eagle, it has helped more than 50 other species, from the Brown Pelican to the humpback whale, to recover enough to be removed from the list. It has set many other plants and animals on the road to recovery, and some five dozen species have been downlisted from endangered to threatened. What’s more, under the act, millions of acres of grasslands, forests, coasts, and other habitats have been protected. “It’s been extraordinarily effective at preventing extinctions,” says Stuart Pimm, a Duke University expert on wildlife extinction and conservation management. “In an era when we keep hearing all sorts of bad news about the environment, that’s a spectacularly wonderful and exciting statement.”

Today, however, the fight against extinction is growing increasingly fraught, making it more important than ever to preserve the landmark conservation tool for the next 50 years, ESA advocates say. Climate change—which was hardly on anyone’s radar when the law came into being—is just one serious challenge.

Despite its success, the ESA has become highly politicized, with conservatives making concerted efforts to weaken it for the sake of economic growth. Opponents often say the law has failed because just 2 percent of the 1,669 domestic listed species have rebounded and been delisted. But that statistic is a poor measure, according to a 2019 study, because the majority of species gained protection only after their populations plummeted to dangerously low levels. The more dire the straits, the less likely they are to recover.

The main reason the ESA became a target for attacks is because of its sweeping nature. Lawmakers likely didn’t realize the ramifications of the bill when they passed it nearly unanimously, experts say. “What they thought they were doing was protecting charismatic megafauna—Bald Eagle, Peregrine Falcon, whales,” says Patrick Parenteau, an emeritus professor at Vermont Law and Graduate School who litigated many landmark endangered species cases. “They had no concept that they were enacting a law that was going to go down to the insect level and that was going to affect every community in every part of America.”

The wake-up call was a dam project in Tennessee that threatened to destroy what was believed to be the only habitat of a thumb-size fish, the snail darter. In 1978 the Supreme Court ruled in favor of the fish’s protection, highlighting the ESA’s uncompromising stance on safeguarding endangered species and their habitats above all else. “Tellico Dam was 95 percent complete,” Parenteau says. “The Court said it didn’t matter if it was 99.9 percent complete—if it is shown that a federal action is jeopardizing the continued existence of the species, it can’t happen. Period.”

A federal court ruling in 1991 further crystalized the power of the law—and reinforced the flawed notion that Americans must choose between saving wildlife and saving jobs. The Northern Spotted Owl was listed as threatened in 1990, its survival inextricably linked to the Pacific Northwest’s old-growth forests, which had mostly been intensively logged since the late 1800s. After a legal decision the following year, the government adopted the philosophy that spotted owl survival required protecting large blocks of habitat connected by corridors, rather than creating buffer zones insulating isolated pairs of owls from disturbance. As a result, more than 20 million acres of public forest land became off limits for commercial logging.

The timber industry protested the measure, saying it would leave thousands of loggers and mill workers in the Northwest destitute. Interest groups across the country promoted the message: The government is putting wildlife before families. Soon the media reported “chainsaw fever” in the Southeast as some landowners felled mature pines in an effort to prevent them from becoming “infested” with endangered Red-cockaded Woodpeckers. People said, “If I’ve got species on my property, get rid of them” or “get rid of the habitat,” Parenteau says.

The Clinton administration labored to douse the controversy in the 1990s. “They realized that the only way the Endangered Species Act was going to work was through a collaborative enforcement approach,” says Lowell E. Baier, a legal and environmental historian and attorney. Through Habitat Conservation Plans, Safe Harbor Agreements, and other mechanisms, the government, conservation groups, and landowners began working together. In exchange for landowners voluntarily committing to maintain or improve habitat for specific protected species on private property, the government guaranteed that as long as the conservation measures were fulfilled, they would not face property-use restrictions on their land.

Despite such reforms, critics of the ESA have successfully weakened the implementation of the law, maintaining that they’re merely streamlining bureaucratic processes and providing more flexibility for landowners and industries. Under the George W. Bush administration, for instance, in 2008 the U.S. Fish and Wildlife Service loosened the criteria for delisting species, undercut the creation of recovery plans, and proposed reducing the size of some critical habitat designations.

__________

Over time, the law has become more and
more of a lightning rod.

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The Trump administration made even more aggressive changes in 2019, just months after the United Nations released a grave report warning that 1 million species would soon face extinction. Those modifications made it more challenging to protect species threatened by climate change, reduced the scope of critical habitat designations, and allowed economic considerations to play a larger role when deciding whether a species warranted listing.

Congress, too, has meddled in decisions that are meant to be rooted in science, not economics or politics. When it became clear that the Greater Sage-Grouse was likely to be listed, for instance, agencies and private landowners worked together across the bird’s vast sagebrush habitat to prevent it from needing the designation. Despite the successful and unprecedented collaboration, since 2014 lawmakers have passed budgets that include language prohibiting the FWS from listing the Greater Sage-Grouse under the ESA.

Over time, the law has become more and more of a lightning rod, with special interests trying to undermine it, says Marshall Johnson, Audubon’s chief conservation officer. “We are constantly fighting to maintain robust authority,” he says. “Rooting decision-making in science is and has always been the fundamental underpinning of the law.”

The current White House is restoring some protections and defending against other efforts to chip away at the ESA. In September, President Biden vetoed Congress’s attempt to overturn the recent FWS decision to list the Lesser Prairie-Chicken. Roughly 90 percent of the bird’s habitat has vanished in recent years due to farming, cattle grazing, and oil and gas exploration. As a result, its population has plummeted by 97 percent—one of the most precipitous avian declines in U.S. history.

Jon Hayes, Audubon Southwest executive director, says FWS biologists and the Biden administration followed the “best available science” to make the decision, despite pressure from special interests. “Without the ESA, the bird may not survive the decade throughout much of its range,” he says. “At least now the bird has a fighting chance, and we can implement a strong recovery effort to bring it back.”

History shows that the ESA works—though the path to success might be slow and complicated. Ultimately, Congress issued an exemption allowing the Tellico Dam to be completed. In the meantime, scientists transplanted snail darters to new streams and discovered previously unknown populations. The fish rebounded and was delisted in 2022. Dozens more species—including the Modoc sucker, San Benito evening-primrose, Lake Erie water snake, lesser long-nosed bat, Virginia northern flying squirrel, and Black-capped Vireo—have also rebounded beyond the need for the act’s protection.

But threats to the law aren’t going anywhere: The current Congress has introduced three dozen bills that would weaken the Endangered Species Act. And just as climate change rose from fringe idea to inescapable crisis over the ESA’s first half century, it’s impossible to know what challenges loom ahead. What is clear is that a commitment to species conservation is needed more than ever before. The law will be essential to weather the storms of the next 50 years.

This story originally ran in the Winter 2023 issue as “Lessons in Survival.” To receive our print magazine, become a member by making a donation today.