Endangered Species Act (1973)

Widely regarded as the strongest and most significant piece of environmental legislation in the world, the Endangered Species Act (ESA) makes the protection of rare or imperiled species of plants and animals the highest priority of the U.S. federal government, at least in theory. Its core features are: a list of protected plants and animals; designation of “critical habitat” for listed species; mandatory compliance of all federal agencies and actions with the terms and objectives of the ESA; and the right of the public, through the National Environmental Policy Act, to petition for listing and to sue for compliance. Although the ESA's overall efficacy is disputed and political wrangling about it is intense, it nevertheless enjoys widespread support among the general public.

The 1973 Act replaced two earlier and weaker laws passed in response to surging environmental sentiment following publication of Rachel Carson's 1962 book, Silent Spring. The Endangered Species Preservation Act (1966) aimed to save the whooping crane and other charismatic birds such as the bald eagle by authorizing the Secretary of Interior to create a list of endangered domestic fish and wildlife and to spend a limited amount of money to buy habitat for their protection. The Endangered Species Conservation Act (1969) expanded the Secretary's authority to cover foreign species and banned imports of products made from listed species, in hopes of protecting the world's whales. A subsequent dispute with the Pentagon over listing the sperm whale—whose oil was used in submarines—helped motivate the stronger law and foreshadowed the legal–bureaucratic dramas yet to come.

Congress passed the new law almost unanimously. It extended protection to plants and invertebrates as well as fish and wildlife; required the designation of critical habitat for all listed species; forbid federal agencies from authorizing, funding or carrying out any action that might jeopardize the continued existence of listed species or that “destroys or adversely modifies” critical habitat; and forbid any party from “taking” a listed animal species without a permit. It defined take as “to harass, harm, pursue, hunt, [Page 564]shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Penalties can rise to $50,000 and a year in prison, although prosecutions for “take” are virtually unheard of. Enforcement authority resides in the U.S. Fish and Wildlife Service for land and freshwater species (the vast majority of the total); the Department of Commerce's National Marine Fisheries Service (now known as NOAA Fisheries) is responsible for marine and anadromous species.

Ever since its passage, the ESA has been prone to unintended consequences, political firestorms, and scientific uncertainty. That private landowners might intentionally kill a species or destroy its habitat just before listing (or “shoot, shovel, and shut up” after listing, as the saying goes) prompted amendments and administrative reforms through the 1980s and 1990s in search of mechanisms to indemnify landowners who conserve or create habitat. From the snail darter (which nearly killed a Tennessee Valley Authority dam halfway through construction) to the spotted owl (celebrated or blamed—rather misleadingly—for decimating the timber industry in the Pacific Northwest), the nation's highest courts have consistently upheld the ESA's constitutionality and its priority over political and economic expedience. Yet in several cases Congress has then exempted projects, suspended listings, or enfeebled enforcement.

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