The Endangered Species Act and the Conflict With Modern Economic and Development Interests

This note written by staff member Michael D. Russell appeared in JNREL Vol. 22 No.2. The abstract was written by staff member Ramsey Groves.

Congress enacted the Endangered Species Act (ESA) in 1973. The ESA was enacted because many people were concerned about several species and their diminishing populations. These species included the bald eagle, the American alligator, the wolf, and the grizzly bear. Accordingly, one of the main purposes of the ESA is to protect these and other species of fish, wildlife, and plants. Another purpose of the ESA is to protect the ecosystems of both endangered and threatened species. These ecosystems are termed "critical habitats." Disputes stemming from the ESA often concern the impact of an economic development on a habitat, which ultimately harms a species.

Two competing interests are generally involved in ESA conflicts. These are the interests of conservation and the interests of economic development. The ESA tends to place more value on conservation interests than economic development concerns. Due to these two clashing interests, this statute has produced a great deal of controversy. However, economic considerations also affect the conservation side of the dispute. For example, many citizens, such as fishermen, rely upon a species for their livelihood. If that particular species is not protected and ultimately eradicated, there will be grave economic consequences.

To ensure that specific species are protected, the ESA provides federal agencies with certain duties. Unless the agency has been granted an exemption, the ESA requires every federal agency to guarantee that its actions do not harm an endangered or threatened species. The agency in question is forced to find alternatives if it is determined that specific actions would violate the ESA. If no alternatives are available, a committee is formed to determine whether economic interests outweigh the interests of the ESA. This committee, which has become known as the "God Squad," may choose to allow agency action. This committee is essentially playing God because it determines if a species is sacrificed due to a stronger economic interest.

The ESA does provide for judicial review, but there is no express standard of review included in the statute. According to courts, the arbitrary and capricious standard is the appropriate standard of review under the ESA. Consequently, courts should generally defer to reasonable agency decisions. Courts may not weight interests because, in reality, agencies are better equipped to perform this balancing function.

There has been a great deal of controversy due to the ESA. For example, in the middle of a drought in the Klamath Basin, the government shut off irrigation water to provide sufficient water levels for a species of fish. Due to lack of access to water, farmers and ranchers were adversely affected. Additionally, people in Georgia have faced water shortages because the ESA required a certain amount of water to be released downstream to protect endangered species. These examples illustrate how the ESA forces judgment calls when important but competing interests clash. As a result, the ESA will certainly remain a hotly debated statute for years to come.