Endangered Species Act of 1973


The Endangered Species Act of 1973 is the primary law in the United States for protecting and conserving imperiled species. Designed to protect critically imperiled species from extinction as a "consequence of economic growth and development untempered by adequate concern and conservation", the ESA was signed into law by President Richard Nixon on December 28, 1973. The U.S. Supreme Court described it as "the most comprehensive legislation for the preservation of endangered species enacted by any nation". The purposes of the ESA are two-fold: to prevent extinction and to recover species to the point where the law's protections are not needed. It therefore "protect species and the ecosystems upon which they depend" through different mechanisms.
For example, section 4 requires the agencies overseeing the ESA to designate imperiled species as threatened or endangered. Section 9 prohibits unlawful 'take,' of such species, which means to "harass, harm, hunt..." Section 7 directs federal agencies to use their authorities to help conserve listed species. The ESA also serves as the enacting legislation to carry out the provisions outlined in The Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Act is administered by two federal agencies, the United States Fish and Wildlife Service and the National Marine Fisheries Service. FWS and NMFS have been delegated by the Act with the authority to promulgate any rules and guidelines within the Code of Federal Regulations to implement its provisions.

History

Calls for wildlife conservation in the United States increased in the early 1900s because of the visible decline of several species. One example was the near-extinction of the bison, which used to number in the tens of millions. Similarly, the extinction of the passenger pigeon, which numbered in the billions, caused concern. The whooping crane also received widespread attention as unregulated hunting and habitat loss contributed to a steady decline in its population. By 1890, it had disappeared from its primary breeding range in the north central United States. Scientists of the day played a prominent role in raising public awareness about the losses. For example, George Bird Grinnell highlighted bison decline by writing articles in Forest and Stream.
To address these concerns, Congress enacted the Lacey Act of 1900. The Lacey Act was the first federal law that regulated commercial animal markets. It also prohibited the sale of illegally killed animals between states. Other legislation followed, including the Migratory Bird Conservation Act, a 1937 treaty prohibiting the hunting of right and gray whales, and the Bald and Golden Eagle Protection Act of 1940.

Endangered Species Preservation Act of 1966

Despite these treaties and protections, many populations still continued to decline. By 1941, only an estimated 16 whooping cranes remained in the wild. By 1963, the bald eagle, the U.S. national symbol, was in danger of extinction in the lower 48 states. Only around 487 nesting pairs remained outside of Alaska. Loss of habitat, shooting, and DDT poisoning contributed to its decline.
The U.S. Fish and Wildlife Service tried to prevent the extinction of these species. Yet, it lacked the necessary Congressional authority and funding. In response to this need, Congress passed the Endangered Species Preservation Act on October 15, 1966. The Act initiated a program to conserve, protect, and restore select species of native fish and wildlife. As a part of this program, Congress authorized the Secretary of the Interior to acquire land or interests in land that would further the conservation of these species.
The Department of Interior issued the first list of endangered species in March 1967. It included 14 mammals, 36 birds, 6 reptiles, 6 amphibians, and 22 fish. A few notable species listed in 1967 were the grizzly bear, American alligator, Florida manatee, and bald eagle. The list included only vertebrates at the time because of the Department of Interior's limited definition of "fish and wildlife."
The Endangered Species Preservation Act was repealed by the Endangered Species Act of 1973.

Endangered Species Conservation Act of 1969

The Endangered Species Conservation Act of 1969 amended the Endangered Species Preservation Act of 1966. It established a list of species in danger of worldwide extinction. It also expanded protections for species covered in 1966 and added to the list of protected species. While the 1966 Act only applied to 'game' and wild birds, the 1969 Act also protected mollusks and crustaceans. Punishments for poaching or unlawful importation or sale of these species were also increased. Any violation could result in a $10,000 fine or up to one year of jail time.
Notably, the Act called for an international convention or treaty to conserve endangered species. A 1963 IUCN resolution called for a similar international convention. In February 1973 a meeting in Washington, D.C. was convened. This meeting produced the comprehensive multilateral treaty known as CITES, or the Convention on International Trade of Endangered Species of Wild Fauna and Flora.
The Endangered Species Conservation Act of 1969 provided a template for the Endangered Species Act of 1973 by using the term "based on the best scientific and commercial data." This standard is used as a guideline to determine if a species is in danger of extinction.

Passage of the 1973 Act

In 1972, President Nixon declared current species conservation efforts to be inadequate. He called on the 93rd United States Congress to pass comprehensive endangered species legislation. Congress responded with a completely rewritten law, the Endangered Species Act of 1973, which was signed by Nixon on December 28, 1973.
It was written by a team of lawyers and scientists, including Russell E. Train, the first appointed head of the Council on Environmental Quality, an outgrowth of the National Environmental Policy Act of 1969. Train was assisted by a core group of staffers, including Earl Baysinger at EPA, Dick Gutting, and Gerard A. "Jerry" Bertrand, a marine biologist. The staff, under Train's leadership, incorporated dozens of new principles and ideas into the landmark legislation but also incorporated previous laws, as was desired by Congressman John Dingell when he first proposed the idea of an "Endangered Species Act." Among the staff, Bertrand is credited with having written major parts of the Act, including the infamous "takings" clause,. "We didn't know what we couldn't do", Bertrand has said about the Act. "We were doing what we thought was scientifically valid and right for the environment."
A law review article published in 2010 reflected on how this now-controversial statute had moved through Congressional passage with so little conflict and need for bargaining:

Essentially no skepticism was expressed about either the law's conservation goals or its regulatory strategies. There was no organized interest group opposition. No one voted against the Senate bill. Twelve members of the House of Representatives initially voted no, but none of them spoke against the bill, and only four persisted in their opposition after the bill came back from the conference committee.

Amendments to the Act

Significant amendments to the Act happened only four times during the first half-century of the Act's implementation: 1978, 1982, 1988, and 2004. These are listed and summarized on a U.S. Fish and Wildlife Service webpage titled, "History of the Endangered Species Act: Principal Amendments". How the official regulations for implementing the Act have developed and changed through time is more complex and is not available on the agency website.

1978 amendments

  • Creation of the Endangered Species Committee that authorized actions that could jeopardize listed species "if the action is exempted by a Cabinet-level committee convened for this purpose."
  • "Critical habitat was required to be designated concurrently with listing a species, when prudent, and economic and other impacts of designation were required to be considered in deciding on boundaries."
  • The U.S. Forest Service is to be directly involved in "conserving" listed species; and more direction was given for land acquisition.
  • While species and subspecies can be petitioned for listing, only vertebrate animals can have one or more populations listed on their own when the species as a whole does not qualify for listing.
  • ''See also Endangered Species Act Amendments of 1978.''

    1982 amendments

  • Listing decisions must be made "solely on the basis of biological and trade information, without consideration of possible economic or other effects."
  • Listing decisions could be extended beyond the two-year deadline, thus enabling the agency to engage in negotiations with parties that might otherwise sue in court for failure to meet the deadline.
  • Establishment of "experimental populations" as a recovery action may entail fewer restrictions than those that apply to where the listed species naturally occurs.
  • Whereas listed animals always have "takings" restrictions wherever they are found, plants are now also protected from harm or collection — but only on federal lands.
  • Habitat conservation plans may be offered and approved for projects whereby "incidental take" may legally occur.

    1988 amendments

  • Monitoring of candidate and recovered species is required, and "emergency listing" can be made if there is evidence of significant risk.
  • In addition to listing decisions being offered in draft form for public comment before publication in final, now recovery plans also have to be published in a two-step process. Three elements must be included in a recovery plan: the management actions, objective, measurable criteria for downlisting and delisting, and estimated time and cost for achieving recovery.
  • Congress must be given annual financial reports that list on a species-by-species basis "all reasonably identifiable expenditures by the Federal government and States that received Section 6 funds." The Cooperative Endangered Species Fund is established "to provide funding for state grants, including land acquisition and planning assistance."
  • Protection for endangered plants is extended to include "a prohibition on malicious destruction on Federal land and other 'take' that violates State law."