SCI Foundation often writes about issues concerning the Endangered Species Act (ESA). Some issues include endangered or threatened species listings; special rules governing management of listed species; and how the ESA affects conservation, hunting and international trade in wildlife. As we often skip over the basics about the Act, this article will make our readers more familiar with the ESA.
Congress enacted the ESA in 1973 to protect species and the ecosystems on which they depend. Congress recognized that fish, wildlife and plants are of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” Furthermore, Congress was concerned that many native plants and animals had become extinct and many more were in danger of extinction. Little has changed in the ESA’s structure since 1973.
Only two government agencies have the authority to list species under the ESA; the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). Species can either be listed as “Threatened” or “Endangered.” The ESA empowers the agencies to list species wherever they occur in the world, but most of the restrictions (e.g., no killing or harming,) that come with a listing only apply to U.S. species. According to the ESA, endangered means the species is in imminent danger of extinction. Threatened is less severe, meaning that a species is not currently endangered but is likely to become endangered within the foreseeable future, which is established based on the individual species. When evaluating a species for listing, the following five factors are considered: 1) damage or destruction of a species habitat; 2) overutilization of the species; 3) disease or predation; 4) inadequacy of existing protections for the species; and 5) other natural or manmade factors that affect the continued existence of the species.
The ESA also requires a consideration of conservation efforts by states and foreign countries. The agencies must only rely on the best available scientific and commercial information to determine if the factors establish that the species is threatened or endangered. While the agencies must consider all the factors, they can list a species based on a single factor.
Listing a species involves several steps and usually takes several years. The most common way a species gets considered for listing is through a petition filed by a non-governmental entity or person, but the agency can itself start the process. Based on the petition and information in the agency’s possession, they have 90 days from the filing of the petition to determine whether there is substantial evidence indicating that listing the species may be warranted. The agency then has one year from the date of the filing of the petition to conduct a “status review,” which normally includes public comment. At the end of the status review, the agency must either (1) propose a rule to list the species, (2) determine the listing is not warranted, or (3) determine that a proposal to list is warranted but precluded by higher listing priorities. Not warranted will end the review process; warranted but precluded will put the species on a list of candidate species to be reconsidered for listing within 12 months; and a proposed rule will start the final decision-making process, which can last 12-18 months.
The agency must publish the proposed rule, give the public an opportunity to comment, and consider the input of peer reviewers. After this comment period, the agency can decide that the listing is not warranted after all or, it will publish a final rule listing the species.
This process is complicated by several factors. By statute, agencies have deadlines that must be met in a certain amount of time. If they are not met, interested third parties may sue the agency. Such lawsuits usually end in court orders or settlements dictating how much time the agency has to complete the process. Further, the agencies may extend comment periods and hold public hearings before the final decision is made. Finally, the ESA encourages the agencies to work with state and other stakeholders who will be impacted by the decision.
Many other nuances can affect any listing decision under the ESA. Learning to understand and work within this process is extremely complicated and becomes even more complicated by ongoing litigation. Overall, the purpose of creating the ESA was to give the government a way to regulate, conserve and restore threatened and endangered species, and the habitats on which they depend. Unfortunately, the ESA has only resulted in the recovery and removal of about 1% of species from the list. Hopefully, with advances in science and technology, lawmakers will work to modernize the ESA to better conserve species.