Do you think that the Army Corps of Engineers should stop rebuilding the flood control levees of New Orleans if these massive earthworks threaten the habitat of an endangered beetle or butterfly? A federal law, passed in 1973, says that the answer to this question must be "yes." It's called the Endangered Species Act (ESA).
In this law, Congress said that preserving endangered species of plants and animals is the highest priority of the federal government. Since there can be only one highest priority, the beetle or butterfly comes first (New Orleans second).
The ESA commands all federal agencies to take no action which is "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." These words have teeth, as was shown in the famous case of the snail darter versus the Tellico dam.
The snail darter is a fish, about three and one-half inches long, one of 173 recognized species of darters in North America. This species was discovered in 1973 by a University of Tennessee ichthyologist, David Etner, who was snorkeling in the Little Tennessee River. Etner told a bystander that he had found "the fish that will stop the Tellico dam." He was right.
The case reached the United States Supreme Court under the name Tennessee Valley Authority v. Hill. There was no doubt that the dam, then 98% complete after an expenditure of more than $100 million, would destroy the habitat of the snail darter. Money doesn't matter, said the Supreme Court, because the language of the ESA does not allow any priority higher than saving the species.
This illustrates the first problem of the ESA. It fails to acknowledge that, in the real world of politics and government, priorities must be weighed one against another.
The second problem of the ESA is that it treats all endangered species as equally deserving of protection. Again, this is a failure to set priorities. What species are endangered, anyhow? Everybody thinks about the whooping crane, the California condor, the grey whale. (Environmentalists call these the "charismatic megafauna"). Most Americans would agree that, yes, national efforts to preserve these species from extinction are worthwhile.
But the overwhelming majority of species on the endangered list are plants and bugs and snails (33 species of snails, to be exact) that nobody has ever heard of, some so rare that they have only a single habitat and no common name. All, however, are equally entitled to be protected from extinction according to the ESA.
So far we have just been talking about the ESA's impact on the national government itself. What about the private sector?
The principal threat to an endangered species is adverse modification of its habitat. Habitat is real estate. Most of the real estate in America is privately owned. Under Interior Department regulations which won the approval of the Supreme Court, adverse modification of an endangered species' habitat by a landowner on his own land is prohibited. This can be a very costly burden. It's also an inducement to the landowner to eradicate any endangered species before the Interior Department finds out about it. Congress, however, has never authorized any compensation for the landowner who must bear the burden of species preservation.
This is an all-too-familiar unfairness found in environmental law: the cost of a public good (species preservation) is being borne by randomly selected private property owners instead of by the public generally through taxation.
Congress should therefore rethink the Endangered Species Act to articulate priorities, which will include acknowledging that some species are not going to be saved from extinction no matter what resources and efforts are thrown at them. Rational articulation of priorities will have the beneficial side effect of diminishing the ESA's attractiveness to interest groups that hijack the ESA in support of other agendas. (The activists who brought TVA v. Hill to the Supreme Court wanted to stop the Tellico dam. The folks protecting the Northern Spotted Owl are not shy about telling you that their real objective is to stop the logging of old-growth timber in the Pacific Northwest).
Finally, Congress should put the public's money where its mouth is, by awarding compensation to private landowners who must sacrifice their investment-backed expectations to the public good of species preservation. It's time to re-think the Endangered Species Act.
Thomas H. Martin is an assistant professor of law at the Massachusetts School of Law at Andover, and a practicing attorney. He teaches environmental law, civil procedure and conflict resolution, torts, and restitution.
