The ESA at 50

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. D I A L O G U E THE ESA AT 50 SUMMAR Y December 2023 marked 50 years since the Endangered Species Act (ESA) was signed into law. The ESA has proven resilient to numerous legal challenges and saved many species from extinction. But its overall success has been debated, as the list of endangered and threatened species continues to grow, and only 54 species have been taken off of the list completely. On October 26, 2023, the Environmental Law Institute hosted a panel of experts who explored the successes and shortcomings of the statute and discussed what might happen next as climate change increases the risk of extinction. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations. Madison Calhoun is Senior Manager of Educational Programs at the Environmental Law Institute (ELI). Sharmeen Morrison (moderator) is a Senior Associate Attorney in the Biodiversity Defense Program at Earthjustice. Derb Carter is a Senior Attorney with the Southern Environmental Law Center. J.B. Ruhl is David Daniels Allen Distinguished Chair in Law and Co-Director of the Energy, Environment, and Land Use Program at Vanderbilt Law School. Sean Skaggs is a Partner with Ebbin Moser + Skaggs LLP. William Snape III is Assistant Dean of Adjunct Faculty Afairs, American University Washington College of Law. Madison Calhoun: December 28 marks 50 years since the Endangered Species Act (ESA) 1 was signed into law. In celebration of the 50th anniversary of the statute, we decided to hold a program to explore the successes and shortcomings of the Act, as well as discuss what might be ahead for the ESA. Some of the panelists contributed to a debate article about the ESA that was published in ELI’s journal the Environmental Forum . 2 I will turn things over to our moderator Sharmeen Morrison. Sharmeen is a senior associate attorney with Earthjustice’s Biodiversity Defense Program, which engages in national litigation to confront the major drivers of biodiversity law. Sharmeen Morrison: Good afternoon. I’m going to start by introducing our four panelists. J.B. Ruhl is the David Daniels Allen Distinguished Chair of Law at Vanderbilt University Law School, where he also serves as director of the Program on Law and Innovation and co-director of the Energy, Environment, and Land Use Program. Before joining the Vanderbilt faculty, he taught at Florida State University and Southern Illinois 1. 16 U.S.C. §§1531-1544, ELR Stat. ESA §§2-18. 2. he Debate—he Endangered Species Act at 50: Making the Statute More Effective , Env’t F. (Sept./Oct. 2023), https://www.eli.org/sites/default/iles/ iles-pdf/TEF-sept-oct-2023-DEBATE.pdf. University. His academic research has focused on endangered species and ecosystem management. Prior to teaching, he practiced with Fulbright & Jaworski in Austin, Texas, and was deeply involved in the ESA issues emerging there in the 1990s. Derb Carter is a senior attorney in the Chapel Hill, North Carolina, oice of the Southern Environmental Law Center (SELC), which he joined in 1989. From 2005 to 2022, he was director of the North Carolina oices of SELC in addition to litigating cases in state and federal courts. Prior to this, he was director of the Southeastern Natural Resource Center of the National Wildlife Federation and an attorney with the Solicitor’s Oice at the U.S. Department of the Interior (DOI) in Washington, D.C. Sean Skaggs is a partner at Ebbin Moser + Skaggs in San Diego, California, where his practice has been focused on natural resources law for the past 20 years. Prior to forming Ebbin Moser + Skaggs, Sean served at DOI for 10 years, where he was involved in the development of the No Surprises Rule, 3 the Safe Harbor Rule, 4 and the ive-point habitat conservation plan (HCP) policy. 5 Sean is currently editor of the Biodiversity Chapter of the American Bar Association’s Year in Review . Bill Snape is a professor and assistant dean at American University’s Washington College of Law, where he also directs the Program on Environmental and Energy Law. Bill also litigates on behalf of the Center for Biological Diversity on endangered species, public lands, climate change, and freedom of information issues. He is the author of many articles on the ESA, and most recently published a chapter entitled “Biodiversity Litigation in the United States: Strong Conservation Laws but Challenges 3. Habitat Conservation Plan Assurances (“No Surprises”) Rule, 63 Fed. Reg. 8859 (Feb. 23, 1998). 4. Announcement of Final Safe Harbor Policy, 64 Fed. Reg. 32717 (June 17, 1999). 5. Notice of Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 65 Fed. Reg. 35242 (June 1, 2000). 2-2024 ENVIRONMENTAL LAW REPORTER 54 ELR 10101 Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. With Enforcement” in a global compendium published by Oxford University Press in 2022. 6 I want to start by asking our panelists to share their relections on the efectiveness of the ESA 50 years since its enactment and the ways in which they think the Act could be made more efective. J.B. Ruhl: I’m going to throw a curveball into this. As I was contemplating the theme of the panel and sketching out some notes to myself about my relections on the ESA, I thought, why don’t I do what all my students are doing, and ask ChatGPT? So, I had a nice conversation with ChatGPT. It did a pretty good job, although it has some shortcomings of its own. And I’ll get to those later in the panel. But with a very broad brush, I explained what the ESA is, and asked what it thought the successes and shortcomings have been over the past 50 years. It matched up quite well with where I was going. I’ll go through the points, and I want to come back to one in particular that I think is overlooked as a success. I asked ChatGPT to identify just ive categories. he irst was recovery of iconic species. I think we’d all agree that has over time placed the theme of endangered species in the public discourse successfully. hat’s helped the ESA “stick,” notwithstanding all of its controversy. he second was habitat protection and conservation plans. We have, in fact, extended a tremendous amount of protection through the HCP permit program through its mitigation requirements, with some HCPs operating at large regional scales. So I would agree that’s a success, and that’s been very targeted habitat conservation. hird, ChatGPT pointed out that the ESA has been a catalyst for collaboration among federal agencies, federal and state agencies, local agencies, and even with private landowners, particularly during the Bruce Babbitt era in which Secretary Babbitt reached out and developed programs that facilitated those kinds of collaborations and partnerships. Fourth was global impact and leadership. he ESA has positioned the United States as a leader. It’s an environmental law we’re proud of—along with the National Environmental Policy Act (NEPA) 7 —particularly in terms of its global impact and modeling for other nations. he ifth success story was scientiic research and monitoring, and I’m going to come back to that. But irst, I’ll briely tell you what ChatGPT said were the shortcomings or failures. I think they’re more problems and challenges, not necessarily shortcomings. hey include inadequate funding and resources, which is not the ESA’s failure. It’s our failure to fund the ESA adequately. he second was political interference and delays. his is also not the ESA’s failure. It is one of its greatest challenges. 6. William J. Snape, Biodiversity Litigation in the United States: Strong Conservation Laws but Challenges With Enforcement , in Biodiversity Litigation 267 (Guillaume Futhazar et al. eds., Oxford Univ. Press 2022). 7. 42 U.S.C. §§4321-4370h, ELR Stat. NEPA §§2-209. We’ve seen periods of tremendous political backlash and insuicient habitat protection. Conlict with economic development has been a source of controversy. And there is limited success in actual recovery. hat’s the standard criticism of the ESA, that it hasn’t led to recovery. On the other hand, of course, it has prevented probably thousands of extinctions through its process. But that point about actual recovery brings me back to the scientiic research and monitoring point. We’ve learned that recovery is hard. I think the premise of the Act, perhaps not explicitly, was that extinction is kind of a linear process. hen when we decide to develop a recovery plan, we sort of make that happen. We didn’t know at the time that recovery of a species that’s been brought to the brink of extinction is actually very hard and could take hundreds of years. Fifty years is probably not enough for most species. We’ve learned that, and we’ve learned so much more because many environmental laws are known to have a technology-forcing efect. hey’re forcing better technology for pollution control. But many environmental laws also have what I would call a science-forcing efect. Section 404 of the Clean Water Act (CWA) 8 created a science of wetlands—although it might not be as robust or relevant after the Sackett opinion. 9 In other words, we learned more about wetlands because they became an important regulatory phenomenon. hen, with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 10 and Superfund, we learned a lot about groundwater hydrology because that became one of the key threats that CERCLA was designed to ultimately remediate and the potential liability for groundwater contamination was so high. With the ESA, one of the understated success stories is its science-forcing efect. Learning more about species dynamics. Learning more about how ecological disturbance threatens the...