Six Biological Reasons Why the Endangered Species Act Doesn't Work—And What to Do About It

Abstract: Law plays an important role in shaping land management decisions. The success of efforts to conserve biodiversity thus depends to a large degree on how well scientific knowledge is translated into public policy. Unfortunately, the Endangered Species Act, the United States's strongest legal tool for conserving bidodiversity, contains serious biological flaws. The statute itself, as well us agency regulations and policies that implement the law include provisions that fail to account accurately for important biological concepts such us ecosystem conservation, patch dynamics, and the probabilistic nature of stochastic threats to a species' persistence. Moreover, the procedures of federal agencies charged with implementing the Endangered Species Act in some cases make it difficult for interested outside reviewers to evaluate the agencies' scientific findings and methodology. However, the Endangered Species Act also gives interested individuals and groups several opportunities to provide input into the process of managing threatened and endangered species. Conservation biologists should practice focused advocacy by taking advantage of such opportunities to steer law in a more biologically sound direction.     

Property Rights Case Law and the Challenge to the Endangered Species Act

Congress is poised to initiate what could be a lengthy debate over the U.S. Endangered Species Act. In anticipation, proponents of strong Fifth Amendment private property rights guarantees have begun an aggressive campaign pitting those rights against those granted other species in the Act. Little case law exists that considers both property rights and wildlife protection, but inference can be drawn from Supreme Court opinions regarding property rights which may provide insight into likely judicial contributions to resolving tension between property rights and endangered species. We review key legislative history, provisions of the Endangered Species Act, relevant case law, and the implications of recent judicial trends that pertain to property and imperiled species. We then make recommendations that may improve implementation of this critical piece of environmental legislation.     

State Intervention to Protect Endangered Species: Why History and Bad Luck Matter

Abstract: Illegal exploitation threatens the survival of many species, and anti-poaching legislation ("protection on paper") does not protect species. State enforcement is needed to support and supplement the formal status of endangered species, but state enforcement can be a source of instability leading to the demise of species if ad hoc rules are followed blindly. We demonstrate this with a model of poaching, wildlife, and government wildlife enforcement, but our findings apply more generally. Crucial assumptions of the dynamic model are that both poaching and enforcement effort increase or decrease whenever poaching effort and enforcement are relatively profitable or unprofitable activities, respectively. We found that multiple steady states may characterize the system's equilibrium. Depending on initial populations, the initial extent of state involvement, and random events, animal populations may be severely depleted or unexpectedly built up during transition phases. Our findings highlight the importance of history and luck in protecting endangered species.     

Avian Conservation under the Endangered Species Act: Expenditures versus Recovery Priorities

Abstract: Budget constraints require the U.S. Fish and Wildlife Service to prioritize species for recovery spending. Each listed species is ranked according to the degree of threat it faces, its recovery potential, and its taxonomic distinctness. We analyzed state and federal government expenditures for recovery of threatened and endangered birds ( n = 85 species) from 1992 to 1995 to determine if the priority system was being followed. Although recovery spending correlated with priority rank, priority rank explained <5% of the variation in spending. A small number of the same moderately ranked species dominated expenditures each year (41–79% of total annual budgets). Species with wide distributions, high recovery potential, and captive breeding programs received the most funding, and more funding than their priority ranks dictated. Island species received significantly less funding than expected based on priority rank. Twelve species, 10 of which resided on islands, received <$5000 at least once from 1992 to 1995. Recovery spending was unrelated to degree of threat, taxonomic distinctness, and migratory status. There also was no relationship between land-purchase expenditures and priority ranks. To improve the relationship between recovery spending on threatened and endangered birds and their priority rank, significant changes need to be made within the private sector ( less litigation and special-interest lobbying  ), U.S. Congress (increased budget and reduced earmarking  ), and the U.S. Fish and Wildlife Service (restructuring of regional offices and increased accountability).     

Geography and Recovery under the U.S. Endangered Species Act

Abstract: The U.S. Endangered Species Act (ESA) defines an endangered species as one “at risk of extinction throughout all or a significant portion of its range.” The prevailing interpretation of this phrase, which focuses exclusively on the overall viability of listed species without regard to their geographic distribution, has led to development of listing and recovery criteria with fundamental conceptual, legal, and practical shortcomings. The ESA's concept of endangerment is broader than the biological concept of extinction risk in that the “esthetic, ecological, educational, historical, recreational, and scientific” values provided by species are not necessarily furthered by a species mere existence, but rather by a species presence across much of its former range. The concept of “significant portion of range” thus implies an additional geographic component to recovery that may enhance viability, but also offers independent benefits that Congress intended the act to achieve. Although the ESA differs from other major endangered‐species protection laws because it acknowledges the distinct contribution of geography to recovery, it resembles the “representation, resiliency, and redundancy” conservation‐planning framework commonly referenced in recovery plans. To address representation, listing and recovery standards should consider not only what proportion of its former range a species inhabits, but the types of habitats a species occupies and the ecological role it plays there. Recovery planning for formerly widely distributed species (e.g., the gray wolf [Canis lupus]) exemplifies how the geographic component implicit in the ESA's definition of endangerment should be considered in determining recovery goals through identification of ecologically significant types or niche variation within the extent of listed species, subspecies, or “distinct population segments.” By linking listing and recovery standards to niche and ecosystem concepts, the concept of ecologically significant type offers a scientific framework that promotes more coherent dialogue concerning the societal decisions surrounding recovery of endangered species.     

Genetic Data and the Listing of Species Under the U.S. Endangered Species Act

Abstract:  Genetic information is becoming an influential factor in determining whether species, subspecies, and distinct population segments qualify for protection under the U.S. Endangered Species Act. Nevertheless, there are currently no standards or guidelines that define how genetic information should be used by the federal agencies that administer the act. I examined listing decisions made over a 10-year period (February 1996–February 2006) that relied on genetic information. There was wide variation in the genetic data used to inform listing decisions in terms of which genomes (mitochondrial vs. nuclear) were sampled and the number of markers (or genetic techniques) and loci evaluated. In general, whether the federal agencies identified genetic distinctions between putative taxonomic units or populations depended on the type and amount of genetic data. Studies that relied on multiple genetic markers were more likely to detect distinctions, and those organisms were more likely to receive protection than studies that relied on a single genetic marker. Although the results may, in part, reflect the corresponding availability of genetic techniques over the given time frame, the variable use of genetic information for listing decisions has the potential to misguide conservation actions. Future management policy would benefit from guidelines for the critical evaluation of genetic information to list or delist organisms under the Endangered Species Act.     

What Exactly Is an Endangered Species? An Analysis of the U.S. Endangered Species List: 1985–1991

Critics of the Endangered Species Act have asserted that is protects an inordinate number of subspecies and populations, in addition to full species, and that the scientific rationale for listing decisions is absent or weak. We reviewed all U.S. plants and animals proposed for listing or added to the endangered species list from 1985 through 1991 to determine the relative proportion of species, subspecies, and populations, and their rarity at time of listing. Approximately 80% of the taxa added to the list were full species, 18% were subspecies, and 2% were distinct populations segments of more widespread vertebrate species. The proportion of subspecies and populations was considerably higher among birds and mammals than among other groups. The median populations size at time of listing for vertebrate animals was 1075 individuals; for invertebrate animals it was 999. The median population size of a plant at time of listing was less than 120 individuals. Earlier listing of declining species could significantly improve the likelihood of successful recovery, and it would provide land managers and private citizens with more options for protecting vanishing plants and animals at less social or economic cost.     

Improving Peer Review of Listings and Recovery Plans under the Endangered Species Act

Abstract: We discuss several challenges encountered in peer review of Endangered Species Act listings and recovery plans, with particular attention to Meffe et al.'s (1998) statement on independent scientific review in natural resource management. First, Endangered Species Act listing documents and recovery plans pose a diverse array of scientific questions, and we suggest that overall effectiveness of peer review may be increased by segregating the critical issues and identifying specific reviewers for each issue. Some scientific reviewers may be unfamiliar with the decision standards prescribed by the Endangered Species Act and implementing policies. Unnecessary confusion could be prevented by providing reviewers with information about these standards and by requesting that reviewers clearly differentiate their assessment of decisions that must be based on available information from recommendations for future research. Short review periods constitute another constraint on careful review, but tight deadlines are fairly intractable in the context of the Endangered Species Act. We suggest that short time frames could be partially ameliorated by narrowing the scope of issues to be treated by each reviewer, and we discuss the issue of providing monetary compensation for efficient review. Finally, Endangered Species Act listing decisions and recovery planning may profit from more frequent peer review of intermediate analyses that precede publication of formal proposals or complete plans.     

The Normative Dimension and Legal Meaning of Endangered and Recovery in the U.S. Endangered Species Act

Abstract:  The ethical, legal, and social significance of the U.S. Endangered Species Act of 1973 (ESA) is widely appreciated. Much of the significance of the act arises from the legal definitions that the act provides for the terms threatened species and endangered species. The meanings of these terms are important because they give legal meaning to the concept of a recovered species. Unfortunately, the meanings of these terms are often misapprehended and rarely subjected to formal analysis. We analyzed the legal meaning of recovered species and illustrate key points with details from "recovery" efforts for the gray wolf ( Canis lupus ). We focused on interpreting the phrase "significant portion of its range," which is part of the legal definition of endangered species. We argue that recovery and endangerment entail a fundamentally normative dimension (i.e., specifying conditions of endangerment) and a fundamentally scientific dimension (i.e., determining whether a species meets the conditions of endangerment). Specifying conditions for endangerment is largely normative because it judges risks of extinction to be either acceptable or unacceptable. Like many other laws that specify what is unacceptable, the ESA largely specifies the conditions that constitute unacceptable extinction risk. The ESA specifies unacceptable risks of extinction by defining endangered species in terms of the portion of a species' range over which a species is "in danger of extinction." Our analysis indicated that (1) legal recovery entails much more than the scientific notion of population viability, (2) most efforts to recover endangered species are grossly inadequate, and (3) many unlisted species meet the legal definition of an endangered or threatened species.     

Authorship and the Use of Biological Information in Endangered Species Recovery Plans

Abstract: We examined the relationship between authorship and the use of biological information in recovery plans under the U.S. Endangered Species Act. Approximately one-third of recovery plans were written solely by federal government employees, and one-third of plans included authors with university affiliations. The number of plans written strictly by federal staff increased significantly over time, whereas the percentage of plans that included authors with university affiliation remained unchanged. We tested three hypotheses posed by Clark et al. (1994) regarding authorship and endangered species recovery and found that (1) groups of authors from diverse affiliations are likely to strengthen the recovery planning process, (2) recovery plans lacking nonfederal participation suffer from inadequate attention to species biology, and (3) academic affiliation is strongly associated with the use of focal-species biology in recovery plans. Our results suggest that modifying the choice of participants in the recovery planning process may increase the use of biological information in recovery measures recommended in recovery plans and thus influence the eventual success of recovery efforts.