The Endangered Species Act at 50
“I’m all for conservation,” Frank Ribelin, a landowner outside Austin, Texas, told U.S. News & World Report two decades after passage of the Endangered Species Act, “but I’d like to club the little bastards.” He meant the golden-cheeked warbler, a sparrow-sized songbird that leaves the state only to winter in Central America. As a family member said, land like theirs “used to be sold by the square foot, but that all crumbled the day the warbler was listed.” Once an endangered species was found there, the land’s value plummeted.
Thirty years later, the warbler’s status remains unchanged: It is still listed as endangered. The bird’s fate exemplifies several things about the act, which has become one of the most controversial laws on the books since being passed 50 years ago in December 1973. For one thing, an endangered species listing holds the power to make a conservationist want to bludgeon a dainty and rare bird to death. For another, the warbler’s lack of progress highlights the Endangered Species Act’s dismal record of achieving its ultimate goal: conserving species to the point that protections under the law “are no longer necessary.”
It’s true, as supporters of the act are quick to point out, that 99 percent of species listed under the statute have avoided going extinct over its half-century. Yet less than 3 percent of listed species have ever successfully recovered and come off the list. So while most endangered species have avoided plunging over a cliff, almost none have been able to back a safe distance away from the edge. That’s largely because, as the Ribelin family’s experience suggests, the Endangered Species Act is nearly all stick and no carrot.
The law takes a regulation-first approach that all too often makes an endangered species a liability to avoid, rather than an asset to conserve. The presence of a listed species can bring prohibitions on how property owners can use their land or even forbid state biologists from relocating animals to a proper habitat. Even the mere existence of habitat for a listed species can lower land values by entangling properties with federal designations.
Punitive policies turn would-be partners in recovery into enemies of rare species. It’s why a popular colloquial stance toward endangered species has long been called “the three S‘s”: shoot, shovel, and shut up. It’s unfortunate, because farmers, ranchers, and other private citizens provide the majority of habitat for many listed species, and an estimated two-thirds of all listed species have at least some habitat on private land. Unless there’s a change in the law’s approach toward the people who can provide so much important habitat for at-risk species, the prospects for rare species don’t seem likely to improve.
“As the one person in the Congress, the only one, that voted for the Endangered Species Act,” the late Rep. Don Young (R–Alaska) said at a hearing a few years ago, “please beat me with a whip.” Young took office the year the Endangered Species Act became law and became the longest-serving Republican in congressional history before dying in 2022. When the act passed, he has said, congressional members were told it would save “leopards,” not wildlife like “mussels and snails and turtles.” Virtually everyone envisioned the law protecting bald eagles and manatees, not halting infrastructure builds or slowing economic development in the name of slimy invertebrates or obscure fish.
“Essentially no skepticism was expressed about either the law’s conservation goals or its regulatory strategies,” University of California, Berkeley law professor Holly Doremus has written. “There was no organized interest group opposition. No one voted against the Senate bill.” Lawmakers scarcely contemplated that the act would ever interfere with federal projects or restrict uses of private property. Since environmental citizen lawsuits were a new phenomenon in the early ’70s, the citizen suit provision included in the act drew little attention.
“It’s easy to get everybody to sign on with protecting whales and grizzly bears,” Doremus recently told the Associated Press. “But people didn’t anticipate that things they wouldn’t notice, or wouldn’t think beautiful, would need protection in ways that would block some economic activity.”
It didn’t take long for people to figure that out.
In August 1973, a few months before the act was passed, a University of Tennessee biologist discovered a novel type of three-inch minnow in the waters of the Little Tennessee River. By then, Congress had already sunk tens of millions of dollars into the massive federal Tellico Dam project on that same waterway. The newly discovered snail darter was listed as endangered two years later, and the Endangered Species Act had its first major conflict.
The biology professor and a law student filed suit on behalf of the fish, a legal lever that also proved fortuitous for locals who fiercely objected to a project that would flood their communities. A federal court ruling stopped construction of the facility. The Senate Appropriations Committee was not impressed. Its members wrote that they had not “viewed the Endangered Species Act as preventing the completion and use” of such projects, adding that “funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest,” the act notwithstanding.
The case ended up before the U.S. Supreme Court. The justices sided with the snail darter, memorably ruling that through the Endangered Species Act, Congress had prioritized conserving rare species “whatever the cost.” In the wake of the decision, even as The New York Times praised the act’s aims, it declared the law “far too inflexible,” pointing out that the “potential for irreconcilable conflict remains in the law’s absolutism.”
It took another act of Congress to complete the dam’s construction. Legislators also created a so-called God squad that could exempt future government projects from being similarly derailed. But the law had plenty of conflict left to create.
Megafauna or Minnows?
The idea that the act fundamentally protects “charismatic megafauna”—popular, symbolic, large animals—holds sway even today. While nine in 10 Americans say they support the Endangered Species Act, people severely underestimate how many species are protected under it. More than 1,600 domestic species are listed, yet Americans typically estimate the number is more like 100.
Congress directed the U.S. Fish and Wildlife Service to protect two categories of species under the act. Species that are “endangered” are already at risk of extinction, while “threatened” species are deemed likely to become endangered in the “foreseeable future.” The law made it illegal to “take” endangered species—that is, to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect” them—or to degrade their habitats. The agency has effectively extended those prohibitions to most threatened species as well, largely erasing the distinction between the two listing categories. For listed species, the Fish and Wildlife Service can designate “critical habitat,” or areas it identifies as essential to conserving the species, and the act regulates fed
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