Lawyers See Qualified Success as Endangered Species Act Turns 50

The Endangered Species Act, which turned 50 years old this week, has left a mixed legacy while fulfilling its mission as an “ambulance statute” for plants and animals on the brink of extinction, environmental attorneys say.

Since it became law on Dec. 28, 1973, the ESA has helped to recover some iconic species imperiled by pesticides, development, and pollution, such as the bald eagle. Today, 1,668 species of plants and animals in the US are listed as endangered or threatened in addition to 698 foreign species. About 99% of all listed species have avoided extinction.

The act is “critical to our own survival as a species,” and critical to all life on earth, Martha Williams, director of the US Fish and Wildlife Service, said in an interview Thursday.

The law has “shown us time and time again that when we give nature a chance, it has a remarkable ability to heal itself,” Williams said.

Globally, extinction has accelerated over the last 50 years, and scientists and the United Nations have recognized biodiversity loss as a crisis as more species are dying off now than at any point since the dinosaurs were wiped out. UN Secretary General António Guterres in 2022 called humanity “a weapon of mass extinction.”

About 25% of all animals and plant species globally are threatened with extinction as development and deforestation expand and climate change looms, according to a 2019 UN report on biodiversity. Nearly half of all Earth’s animal species are declining, and just 3% are growing in population, according to a 2023 study by researchers at Queen’s University Belfast.

Though the Endangered Species Act has prevented many species from going extinct, it uses an antiquated “emergency room” approach to managing the extinction crisis, stepping in only when a plant or animal is in its most dire circumstances, said Murray Feldman, partner at Holland & Hart LLP in Boise, Idaho.

“The Act applies basic approaches developed in the early 1970s,” while understanding of conservation science, biodiversity, natural variation, species resiliency, climate change, and ecosystem function, have all advanced since then, he said.

Protecting species from extinction comes at a cost for developers and cities eager to grow and build highway and other infrastructure projects that meet a public need, said Brooke Marcus, partner at Nossaman LLP in Austin.

“The combined cost of the permitting process, minimization measures, and mitigation measures often total millions of dollars and require ongoing obligations,” she said. “Local governments must factor the impacts to listed species and how species presence can affect economic growth and development in their jurisdictions.”

Implementation Is Weakness

Some observers say the ESA’s weakness is in its implementation by the Fish and Wildlife Service, not in the letter of the law itself.

“The Endangered Species Act has the legs to tackle the biodiversity crisis. The US Fish and Wildlife Service doesn’t seem to,” said Noah Greenwald, endangered species director for the Center for Biological Diversity.

The agency doesn’t seek sufficient funding from Congress to implement the ESA effectively, Greenwald said.

The Fish and Wildlife Service asked Congress for $384 million for ecological services, which includes endangered species protection and enforcement, in its fiscal 2024 budget request, up from $296 million enacted in fiscal 2023.

But more than $723 million is needed in the coming year for the agency to study imperiled species and sufficiently recover them, according to more than 120 conservation groups. The Sierra Club and other groups in March, for example, urged Congress to appropriate $841 million to the agency for endangered species conservation in fiscal 2024.

Williams said Congress is not sufficiently funding endangered species recovery, but the agency tries to make budget requests that it thinks are realistic.

“You ask for what you want, but you ask for what you think you might be able to get,” Williams said. “If Congress appropriated even what we asked for, that would be a big start.”

The Fish and Wildlife Service has been trying to demonstrate that the bipartisan infrastructure law’s investment in ecosystem restoration, totaling $255 million through 2026, has payoffs to communities, the economy, and species, Williams said.

“We have to show why our implementation of the act matters to people,” Williams said, adding that the agency has to “keep connecting our work to people in their lives, in their communities.”

Working with Landowners

Endangered Species Act enforcement outside of federal lands is another big challenge for the agency, environmental attorneys say.

“The Fish and Wildlife Service is not enforcing the act very aggressively on private land,” said Melinda Taylor, senior lecturer at the University of Texas at Austin School of Law. “It’s discouraging because without a meaningful enforcement effort by the service on private land, there’s no incentive for private landowners to conserve habitat.”

Williams said the agency wants to work “hand in hand” with landowners and the community to restore both species and habitat on private land.

“We’re there for the long-term to support landowners, community, and habitat,” she said. “We’re trying to focus on habitat that supports suites of species,” though in some places it’s necessary to focus on the recovery of a specific species.

Advocates say that in some areas, such a singular-species focus isn’t enough to recover an imperiled animal.

The endangered Florida panther, of which less than 230 are thought to survive, is an example of a species on the brink of extinction whose habitat, fragmented by South Florida highways and new housing developments, is not being sufficiently conserved on private land, said Elise Bennett, Florida director for the Center for Biological Diversity.

“Panthers still have a very long road to recovery ahead, and a lack of effective implementation and political will stand in the way,” she said. “It’s shocking to see the US Fish and Wildlife Service ready to sign off on sprawl developments that would destroy thousands of acres deep in the heart of this important panther habitat.”

The success of the ESA is a mixed bag in part because plants and animals are being listed at a much faster pace than they’re recovering, Feldman said.

“It’s overall a one-way street with the number of listed species and designated habitats continually growing,” he said. “The regulatory reach of the ESA continued to expand, while it’s not clear that the conservation benefits are flowing in the correlated manner.”

But the ESA is as relevant today as it was in 1973, even as extinction and climate change are gripping ecosystems globally, said Ramona McGee, senior attorney for the Southern Environmental Law Center.

“We don’t know the full extent of what we lose when we lose a species,” she said. “We lose not only that piece and function of the ecosystem, we lose all sorts of knowledge about the species, different economic contributions of that species. It’s really a wide-ranging loss.”

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.