The ESA is without a doubt the most powerful federal environmental statute. I know from personal experience as a former U.S. Senate staffer that it trumps every other law on the books, even U.S. obligations under international treaties. Only the U.S. Constitution is the higher law of the land. Given its breadth and reach, one of the great ironies of the law is that it is misnamed.
With apologies to professional conservation biologists, the ESA would really more appropriately be entitled “The Cool Animal Protection Act.” Biologists might more comfortably recognize the issue as the tyranny (or perhaps the budgetary gluttony) of charismatic megafauna. Allow me to elaborate.
First, we need to appreciate that most of the biomass on this planet is plant material. Plants outweigh animals by a factor of 1,000. Yet the ESA does not prohibit “taking” of endangered and threatened plants; only animals get that protection. The ESA is therefore prejudiced against plants, even though plants are obviously extremely valuable to humans, providing us with 80% of our medicines and most of our food. Clearly, the ESA was written by animals, for animals. There is no equal protection of the law for plants. For Fiscal Year 2012, the U.S. Fish and Wildlife Service estimated that federal and state agencies spent a combined $1.7 billion on endangered species. Ranking listed species by expenditures, from top to bottom, the first plant, Johnson’s seagrass, shows up as #175 on the list of more than 1,200 species. This is especially unfortunate since endangered plants would be relatively easy to recover. They don’t need to move around a lot, after all.
Secondly, despite the implications of its title, the ESA does not put a priority on genetic uniqueness. Endangered populations of vertebrates and subspecies get the Act’s full protection, even if the species of which they are a part is in no danger of extinction. Few would argue that wolves, grizzly bears, or salmon are at risk of extinction as full species, and yet their endangered subpopulations get a disproportionate share of our ESA money. Of the ten critters (yes, of course they are all animals) that got the most money in 2012, seven of them were evolutionarily significant units (the term for vertebrate fish populations) of salmon. These seven populations of much more widespread and secure species received more than $350 million in attention, more than 20% of all spending. In contrast, many lower profile, but truly unique endangered full species, like the Alabama cave shrimp, which is only known from five caves, all in Madison County, Alabama, had to squeak by with just $500 worth of federal attention. A cynic might argue that the shrimp is better off with less federal attention, but it is undeniable that money is not allocated based on genetic uniqueness.
Thirdly, funding is not allocated based on the risk of extinction. Of the twenty listed “species” that got the most money in 2012, only 6 were endangered. The other 14 were listed as threatened, a less-imperiled status. To be fair, the threatened Pacific salmon runs that benefited from most of that money no doubt got that attention to try to keep them out of the endangered category. That more restrictive regulatory status would wreak havoc with hydrological operations in the Columbia River Basin. Still, endangered critters got only 28% of the money allocated to the 20 most generously funded “species”. Risk of extinction is not driving spending.
No matter how you look at it, the reality is that the ESA does not really emphasize protecting biodiversity. Its regulatory heft and spending are disproportionately applied to animals that humans think are cool, not based on an organism’s significance in the context of planetary biodiversity. The implementation of the Endangered Species Act does not live up to its title.