A half-century of protection under the Endangered Species Act

On Dec. 28, 1973, President Richard Nixon signed the Endangered Species Act. The landmark law has prevented 99% of animals and plants listed as threatened or endangered under its protection from going extinct, including the bald eagle, humpback whale and Florida manatee. But despite its success as a conservation tool, the ESA is not without its limitations and no longer has the bipartisan level of congressional support it once enjoyed decades ago. Michelle Nijhuis is a contributing editor at High Country News and the author of “Beloved Beasts: Fighting for Life in an Age of Extinction.” She recently wrote about the ESA for High Country News and joins us to talk about its success, limitations and the important role state agencies also play in wildlife conservation amid a changing climate.

Note: The following transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The Endangered Species Act (ESA) was signed into law by President Richard Nixon almost exactly 50 years ago. It’s been called one of the strongest environmental laws in the world. It’s brought some species back from the brink of extinction. Other protected populations have dwindled to zero. The ESA has also gone from near unanimous political support to a much more polarized status. Michelle Nijhuis  is the author of “Beloved Beasts: Fighting For Life in an Age of Extinction.” She’s also a contributing editor of High Country News, where she recently wrote about this anniversary, and she joins us now. Welcome to the show.

Michelle Nijhuis:  Hi, Dave. Thanks for having me.

Miller: It’s good to have you on again. What was the big idea behind the Endangered Species Act when it was signed into law in late December of 1973?

Nijhuis: Well, it was quite a landmark and it had, as you mentioned, almost unanimous support in Congress and it had huge support among the general public. This idea that we needed to have a law against the extinction of species. We needed to have some sort of legal mechanism that would allow us to prevent this worst case scenario of human activities driving individual species off the planet forever.

Miller: Can you give us the basics of the mechanism of the law? I mean, first of all, what does it take for a species to be listed?

Nijhuis: Well, there are a couple of different ways. A species can be listed. The first one is for the Fish and Wildlife Service or the National Marine Fisheries Service to propose a species for listing.  But more and more common is for individuals or conservation groups to propose species for listing. And the law itself sets out pretty tight deadlines for the Fish and Wildlife Service or other federal agencies to have to respond to these petitions. So when you hear about environmental or conservation groups suing the Fish and Wildlife Service over endangered species listings, this is usually what it’s about, it’s about the service getting overwhelmed by petitions and violating those tight deadlines.

Miller: What follows from a listing? Let’s say that a particular animal is listed as threatened or endangered, what kinds of protections or actions can follow?

Nijhuis:  After a listing happens - and I should say the Fish and Wildlife Service goes through an analysis process, looks at all the science, looks at what the threats are to an individual species and then makes a decision. Does the species fit the definition of threatened? Does it fit the definition of endangered? And should it be put formally into one of those categories? And once a species is listed, as we say, it becomes illegal for any of us to kill or harm or harass individuals from that species. And it also becomes illegal for federal projects, or projects requiring or that use federal funding, to harm those species or to bring them any closer to extinction. So it’s quite a powerful law.

Miller: Those are kind of prohibitions on actions. What about where things are prescribed, where you say, “This has to be done to bring this animal back.” How explicit is that in federal law?

Nijhuis: Well, there’s the problem. The Endangered Species Act, in practice, has much stronger prohibitions than it does proactive responses. Now, species that are listed under the Endangered Species Act are supposed to have a recovery plan. But in practice, some of those recovery plans are not completed, not put into action, they’re not funded properly, and so they can’t be put into action. As I said, The Endangered Species Act is very strong in most cases, in preventing the situation for a species from getting worse, but it’s not as good at improving things for a species and it’s really not good at bringing species back to anything like their former numbers.

Miller: What’s an example of a success story under the ESA?

Nijhuis: Well, probably the most famous success story and one that Northwesterners are going to be familiar with is the bald eagle. When I was growing up in the 70′s and 80′s on the east coast, I never saw a bald eagle. Now living in Oregon, I point one out to my teenager and they are completely unimpressed because they are so common.

Miller: I’ve had that exact experience. And probably if I ever get to be 80 or 90, I will still think it’s amazing that there are bald eagles in the world.

Nijhuis: I still am so excited to see them because I know how close we came to not being able to see them. And that is really down to the Endangered Species Act and a lot of hard work by citizens, bringing the eagle back to very healthy numbers.

Another example that we know well are wolves. There’s a good chance we would not have wolves anywhere in the west, were it not for the Endangered Species Act. Salmon populations are not doing well but they would likely be far worse off than they are without the Endangered Species Act.

A couple of small or lesser known examples particular to Oregon: one of them is the Oregon chub that almost went extinct. It’s found in the Willamette River Basin, and it became the first fish removed from the Endangered Species list due to recovery in 2015.

Miller: What about failures?

Nijhuis: There are some. There are species that have been removed from the Endangered Species list due to extinction. And in fact, there were 20 or so that were removed this year. I think those are extremely sad and extreme cases, but the bigger problem is that there are many species that are just in stasis, they’re not doing well and they don’t have the prospects or they don’t have the funding, they don’t have the person power that’s going to help them really do better.

Miller: Are there themes that stand out to you in terms of these successes and failures? I mean, where you can say broadly, this is why these populations have rebounded or at least have stayed relatively stable, after, say, the case for salmon, spending $9 billion over four decades? And the species that have gone to zero. I mean, what are the themes that stand out to you?

Nijhuis: Yeah, that’s a great question. I mean, one other Oregon species I was going to mention is the Fender’s blue butterfly, which isn’t off the Endangered Species Act yet, but it’s on its way. And it’s been what they call down-listed from endangered to threatened. And the reason that has happened is because there has been this very functional, very successful collaborative effort in the Willamette Valley to restore the prairie habitat that the butterfly needs. Other than money, which is necessary, I think having advocates for the species, for the particular places that that species needs, and perhaps most importantly, having advocates who are willing to work together across their many differences in the common cause of protecting a habitat for a very vulnerable species. The law helps. But the collaboration is what brings a species back to health.

Miller: Well, let’s turn to the challenges of that collaboration because as you mentioned, it was a unanimous Senate vote that approved this in 1973, and then the US House vote was 390 to 12. When did that bipartisan agreement start to fray?

Nijhuis: The National Rifle Association supported the Endangered Species Act, testified in support of it. So that began to fray pretty early on when people realized, oh, we’re not just talking about iconic species like grizzly bears. We’re actually talking about all species including some very small, seemingly insignificant species. That began to create some division over the Endangered Species Act. But really Congress continued to work together on Endangered Species Act issues. They continued to make quite practical changes to the law, changing requirements, strengthening requirements for recovery plans and that sort of thing. Until the late 1980′s, all through the Reagan years. And what really, I think, made the divide unworkable was the fight over the logging of ancient forests in the Pacific Northwest.

In 1988, and those of us who were here at the time will remember this, conservationists who were understandably desperate to protect the last ancient forest in the Northwest, proposed to list the Northern spotted owl as endangered. Once that happened, the timber industry saw an opportunity to blame the continuing decline of the timber industry, which was already underway, on the listing of the spotted owl. And that didn’t create divisions between environmentalists and timber communities. Those were already in place, but it made them much, much, much wider. And I think again, those of us who were here at the time, remember just how extraordinarily bitter those politics were.

Even though we eventually got the Northwest Forest Plan, which provided economic support to timber communities and protected a lot of the remaining old growth, that political divide was nationalized and it remains in Congress. And Congress has not successfully agreed on an update to the endangered Species Act since then. So there have been regulatory changes, but really, the law is kind of stuck in the ‘80′s and it has not been adapted significantly to deal with, as we know, very challenging current circumstances.

Miller: Like climate change?

Nijhuis:  Like climate change, like increasing development, like all kinds of increasing human pressures on vulnerable species.

Miller: The explicit purpose of the law is to quote, “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” It was really interesting for me to read that because so often, in terms of the actions that are done to help specific species, it seems much more local and sort of small bore. I mean, just recently, we talked about the plan to shoot many, many, many barred owls to save spotted owls. We’ve talked in the past about shooting seals in order to save salmon because the seals are in the quote “wrong place” as far as humans are concerned about salmon recovery. And there are other kinds of efforts, but those don’t really affect the overall habitat.

I’m curious how much, in the application of the Endangered Species Act, efforts are focused on ecosystem-level conservation?

Nijhuis: Well, that’s been a long discussion, probably since the Endangered Species Act was passed. Do we need something like an Endangered Ecosystems Act? And you know, E. O. Wilson, the biologist, has referred to species, and I believe I’m quoting him correctly when he has said that “the species are the fundamental unit of conservation.” They’re, in a sense, the currency of conservation. They’re what we use as a rough measure of how a system is doing.

Miller: In other words, for example, if there’s a northern spotted owl in a forest, it’s a sign that there is a version of a kind of old growth forest that existed before humans chopped down all the trees, before we made massive changes in the landscape. So to focus on the spotted owl, you’re not only focusing on this one owl, that’s the argument?

Nijhuis: You’re using it in a sense as an approximation of the health of an ecosystem.

Miller: But what would a version of an Endangered Ecosystem or Endangered Habitat Act - how might that be different?

Nijhuis: Well, I think that’s where the discussion always ends up getting hung up, is that species are not easy to measure in many cases, but they are much easier to measure than the health of an entire ecosystem or an entire habitat. So how would you design a law that would be precise enough - whose outlines would be precise enough - that they would be enforceable? And I think people get stuck there.

I think the bigger question is, the Endangered Species Act is supposed to be an emergency room for species. I mean, if we really want to protect ecosystems, what we have to do is provide funding to the state agencies who are responsible for keeping healthy species healthy, and therefore healthy ecosystems healthy. The fact that we are in this horrible position of having to decide whether it’s okay to shoot barred owls is really a reflection, not of a weakness in the Endangered Species Act, but a weakness in our society’s approach to conservation in general. If we had more ancient forests, we wouldn’t have to be as worried about the northern spotted owl. If we had managed our ecosystems better and not provided a bridge from east to west for the barred owl, we would not be in this position. So I think it’s really a sign that we just need a much more proactive conservation.

There’s a bill in Congress right now, that’s unusually a bipartisan bill, called the Recovering America’s Wildlife Act that would provide stable funding to state agencies for this very purpose. And I think it’s much needed, because we really have spent too much time thinking of the Endangered Species Act as the end all, be all of conservation. And it’s a very powerful indispensable law, but it’s not enough.

Miller: Michelle Nijhuis, thanks very much.

Nijhuis: Thank you.

Miller: Michelle Nijhuis  is a contributing editor of High Country News. She wrote there recently about the Endangered Species Act at 50. She’s also the author of the book “Beloved Beasts: Fighting for Life in an Age of Extinction.”

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