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The Day The Endangered Species Act Died

By Jim Chen et al.

The Obama Administration announced today, through Secretary of the Interior, Ken Salazar, that it would not break with the Bush II Administration's policy of abandoning the Polar Bear to its fate. Despite both the clear intent and letter of the Endangered Species Act to contrary, Secretary Salazar stated that "The Endangered Species Act is not the appropriate tool for us to deal with what is a global issue, and that is the issue of global warming".

Faced with a similar issue in TVA v. Hill (1978), 437 U.S. 153, 172-173, the United States Supreme Court surprised everyone by explaining that

It may seem curious to some that the survival of a relatively small number of three-inch fish [the Snail Darter] among all the countless millions of species extant would require the permanent halting of a virtually completed dam [that is, the Tellico Dam] for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result.

The Court went on to emphasize the intentional strictness of the Endangered Species Act:

One would be hard pressed to find a statutory provision whose terms were any plainer than those in [Section] 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species . . . ." 16 U.S.C. 1536 (1976 ed.). This language admits of no exception.

Although the Obama Administration has announced its intention to face the climate change crisis with, as yet unannounced, comprehensive measures, the decision to set the Polar Bear adrift, both figuratively and literally, hints at an emerging hierarchy of environmental priorities: climate change comes before biodiversity conservation. This decision - to conduct biodiversity conservation a la carte - was not what Congress had in mind when it passed the Endangered Species Act; in fact, it represents exactly what Congress feared would happen unless it legislated clearly and strongly.

For those who hope for bipartisan cooperation in D.C., perhaps this represents progress: Democratic and Republican administrations have now co-signed the death warrant of the Polar Bear, and have begun the process of exsanguinating the Endangered Species Act.

Full post as published by Biolaw Blog on May 08, 2009 (boomark / email).