We have reported to our readers many times about the changes in scientific opinion regarding invasion biology in the past fifty years, since the inception of the theories that originally supported that discipline. Now we see an acknowledgement of the changed scientific viewpoint in a critique of the Endangered Species Act by the legal profession.
Holly Doremus is Professor of Law at Boalt Law School at the University of California, Berkeley. Her critique of the Endangered Species Act (ESA) was published by the Journal of Law & Policy in 2010. She previews her theme in her introduction:
“I am interested in why the ESA came to assume an unrealistically static vision of nature. First, the Act’s static structure is typical of law in general, which has traditionally embodied the human search for stability. Second, the Act is inevitably, a product of the political times in which it was drafted and of a rapid and chaotic legislative process, which did not encourage thoughtful examination of the complex contours of the conservation problem. Third, it followed in part from incorrect but widely shared assumptions about the nature of the problem and potential solutions. Fourth, scientific understanding was itself in transition as the law was being crafted, moving from a focus on the tendency of ecological systems to approach equilibrium to one on the ongoing dynamics of many systems.” (1)
We will focus on the fourth issue, i.e., how the ESA is in conflict with the reality of constantly changing ecosystems.
A Static Vision of Nature
The ESA is based on assumptions about nature that were the conventional wisdom at the time the law was passed in 1973:
- Evolution was considered an historical process that was no longer actively changing plant and animal species. Theoretically evolution does not end, but at the time the ESA was passed in 1973, it was not believed to occur within a time frame that would be observable by man. Plant and animal species were therefore viewed as being distinct and unchanging.
- This view of evolution was consistent with the prevailing public opinion in the United States, which does not believe in evolution. Many Americans believe that species have not changed since they were created by God.
- Nature was perceived as reaching an “equilibrium state” that was stable over long periods of time.
- Early conservation efforts were therefore based on the assumption that once achieved, an equilibrium state could be sustained if left undisturbed in nature preserves.
Darwin’s finches are an example of rapid evolution
We now know that these assumptions were mistaken. Evolution can occur very rapidly, particularly amongst plants and animals with short life spans and frequent generations. And ecosystems are constantly changing, particularly at a time of a rapidly changing climate and associated environmental conditions such as atmospheric conditions.
Professor Doremus tells us that ecological scientists played no role in the writing of the ESA and took little notice of the law when it was passed. The press also ignored the new law, which may have been a factor in its being unnoticed by the scientists who may have been in a position to raise the questions that should have been asked. “It seems that conservation scientists, like the general-interest press, and most legislators, did not consider the ESA groundbreaking, or even particularly important.” (1) In any case, the problems that have arisen in the implementation of the law were not foreseen by the politicians who passed it, nearly unanimously in 1973.
How does the ESA define “species?”
As its name implies, the heart of the law is how “species” are defined. In fact, if the law had stopped at providing legal protection for “species,” we would not be experiencing nearly as much difficulty with the implementation of the law. Unfortunately, the ESA’s “…definition of ‘species’ [is] broad, but not a model of clarity, ‘The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” (1)
Splitting species into sub-species and “distinct population segments” has proved very problematic because taxonomy (the classification of organisms) has always been inherently subjective and will probably continue to be. The taxonomic system that was popular at the time the ESA was passed was Mayr’s biological species concept which identifies as a species any group that interbreeds within the group but not with outsiders. This definition is not useful for a species that hybridizes freely, such as the manzanitas of which six species have been designated as endangered. Professor Doremus tells us that US Fish & Wildlife Service now evaluates the legal consequences of hybridization on a case-by-case basis.
Since the ESA was passed, many competing definitions of “species” have been proposed by scientists. There were 22 different definitions of species in the modern literature as recently as ten years ago. These competing definitions reflect disagreement about appropriate criteria for identifying species—morphology, interbreeding, or genetic divergence, as well as the degree of difference needed to define the boundary between species. We see these scientific controversies played out repeatedly in the law suits that are interpreting the ESA.
The identification of “distinct population segments” amongst vertebrates has proved to be even more problematic. Legal challenges to the determination of distinct population segments have reversed the rulings of the US Fish & Wildlife Service for many species that were considered genetically identical such as the sage grouse (eastern vs, western?) and the Preble’s meadow jumping mouse (found in different meadows in the Rocky Mountains). In some cases, these rulings were reversed several times, and perhaps will be again! These reversals reflect the ambiguity of the law, as well as the science of taxonomy. The fact that the ESA specifically allows “citizen suits” has pushed the regulating agencies to implement the law more aggressively than politics alone would have predicted.
Species can and do move
In addition to considering species immutable and unchanging, the ESA also takes a static view of where they live. The concept of “distinct population segments” depends somewhat on the assumption that species of animals don’t radically alter their ranges in the short-term. The assumption is also consistent with the underlying conservation policies that tend to preserve specific places in order to protect rare species within those places.
We now understand that some ecosystems are internally dynamic. We recently told our readers of the need for the sand dunes near Antioch, California to move freely in the wind to sustain that fragile ecosystem. Professor Doremus also tells us about the constantly changing courses of braided rivers in Nebraska that are essential to the sustainability of that unique ecosystem.
In a rapidly changing climate, the preservation of a species may require changing ranges. If the climate becomes too cold, too hot, too wet, or too dry for a species of plant or animal, its immediate survival may require that it move to higher or lower altitudes or latitudes. Moving may be a more effective strategy than the adaptation that may be slower than necessary to survive. Freezing species into their historic ranges does not ensure their survival at a time of rapidly changing climate. In some cases, a species has become plentiful in the new territory it has freely chosen to inhabit and simultaneously rare in its historic range where it has been designated as an endangered “distinct population.” Draconian measures have been taken to restore a species in its historic range, where it is no longer adapted to current conditions.
We leave you with Professor Doremus’ observation about the ESA: “The ESA’s static view of species, landscapes, and conservation obligations, while entirely understandable, has become a hindrance to effective conservation. The ESA’s lofty goals of conserving species and the ecosystems upon which they depend cannot be achieved without a more realistic vision of the dynamic qualities of nature and the ability to respond to the changes that are inevitable in dynamic systems.”
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Conservation Sense and Nonsense 
All this is true. All this (and more) was obvious to me when I was considering becoming an Ecologist in 1972 whilst enroute to my degrees in Biology and Chemistry.
So what?
I abandoned that path (and others, as well, for similar reasons.) Because of the funding environment, science largely whores for the Empire-ists (either directly or indirectly), uses Reductionism to as its construct, and Politics, as this DoaMT points out, influences public policy and law far more than does science.
The ESA, like all of our laws under the color of science, and like most other laws, is far from soundly based in empricism other than that of how to negotiate the labyrinth of the legislative process. Thus, those laws, and their interpretations into regulation and in case law, are choked full of errors and have led to stupid consequences.
But without them we would be in far greater doo-doo than we are now, and trying to “reform” them won’t lead to better unless the entire system of how they get created gets drastically changed first, which ain’t gonna’ happen without a socio-political revolution.
Put another way, I see zero proposals from DoaMT for how to better than the ESA does to structure a legal algorithm for protecting the web of life — and, even more importantly, how to get such an algorithm in place and enforced.
Your critiques of the mass vegetation clearing and use of biocides are worthy, and demonstrating (via these kinds of presentations of science) that you understand science far better than the proposers of such simple-minded ideas divorced from the complexities of ecosystem dynamics bolsters the credibility of your objectioning status. But, then, that, too, is a Political tactic in the same vein as that of those you oppose. I don’t mean stop, I mean I hope you succeed in stopping this poisonous boondoggle.
“Put another way, I see zero proposals from DoaMT for how to better than the ESA does to structure a legal algorithm for protecting the web of life — and, even more importantly, how to get such an algorithm in place and enforced.”
This is a legitimate observation. We have provided a link to Professor Doremus’ critique of the ESA. She concludes with a few suggestions about how to nibble at the edges of the ESA to improve its functioning, but she is not optimistic about the prospects of changing the law as much as needed.
We agree that overturning the law entirely would probably be worse than our struggles with it now. If critics of the law tried to improve it, they would run the risk of losing all protections for rare species. So, it’s a risky proposition and not one we are qualified to resolve.
acknowledgement of and appreciation for your intellectual integrity
keep it up and please hold my feet to that same fire
There’s a serious lack of basic ESA history mentioned here… It’s akin to someone walking onto a battlefield after the battle is over and explaining who is going to win without any frame of reference / understanding of what has happened / is happening in the trenches where the battles have been / are being fought.
And that’s to be expected of course because a report from an expert on the academics of law and policy means the discussion is likely to be devoid of the value / love for nature and wild places, or environmental history from the perspective of those who will always speak for protection for all trees!!!
Likewise, MillionTree’s analysis is a salient effort to speak out against the nonsensical destruction of established urban forests and parks in order to create what will likely be failed habitat for endangered Manzanita. I too think applying the ESA critical habitat designations to established forested parklands is an egregious abuse of what little remains of the SF Bay Area’s ecological health.
But a lack of reference to the history of the ESA as its changed/been eroded since the 1970’s is essential to understanding how we got into this twisted bizarre reality that is the ESA in 2013. Maybe our conversation will help us find a way out? We really do need a better way!
It’s also very important that we don’t unfairly demonize a very important law that’s still is one of the only laws that has successfully led to the protection of almost all remaining old growth forests on public lands today!
Specifically
1) The ESA was created because charismatic megafauna like whales were being hunted to the the brink of extinction. Likewise, Bald Eagles and Peregrine Falcons were losing all their babies before they could hatch due to a poison called DDT. A popular bipartisan movement said no more! The law was decisive and forceful and the whale killers and poisoners claims were entirely silenced. The ESA put an absolute stop to these destroyers in the United States
2) In the 1977 Jimmy Carter got on Johnny Carson and talked about how we had to protect the Alaskan National Wildlife Refuge and that the ESA was essential to that effort. He explained that the ESA is powerful because it’s the only law ever made that makes the value of nature and the value of specific species more important than money and concerns of the economy. More than 30 years later that fundamental value has been reframed to ESA protections being a merely a debate between “jobs” vs the environment.
3) Under Bush senior’s administration all the greedy destroyers of the planet wanted to destroy the ESA so they could extract every last natural resource/profit without limit. These criminals argued that the ESA was a static law that needed to be redefined under section 10, which said because nature is an always changing and a dynamic system rather than a static system. Therefore we can destroy critical endangered species habitat for profit as long as we “promise” to eventually replace it with fake “critical habitat” elsewhere, also know as an HCP. All the while their unwillingness to designate legitimate critical habitat for the most important indicator species was paramount.
4) During the spotted owl wars a judge finally shut down all old growth logging on public lands because the ESA (among other laws) was so thoroughly obstructed, obfuscated and violated that he had no other choice. At the same time the judge knew his efforts would ultimately be futile because congress routinely passed laws (ex. ’95 Salvage Rider) that suspended ESA-based court injunctions in order to increase logging to “create jobs.”
5) To get old growth logging going again congress and the Clinton administration not only suspended the court rulings that helped us save so many ancient forests, but he also created the Northwest Forest Plan, which was a reach even further away from the HCP by adopting ‘ecosystem management,’ which was everyone yet again begrudginly agreeing to cut the baby in half and give half of the remaining ancient forest to loggers and half to enviros via promising to survey and manage for species before they’re listed as ESA species..
6) All US administration’s since Carter have cut budget funding to wildlife to prevent research of the best candidates for listing under the endangered species act. Species that peer-reviewed science believe best indicate the entire health of an ecological system (aka: indicator species) languish for decades on the candidates list because they’re obstructed by bureaucratic entropy at every step and only finally get listed when a judge orders the studies to begin, then another judge orders the listing, then another judge orders that listing be enforced.
7) Just like in the NWF forest plan, our legal victories that protected ancient forest in the late 1990’s were specific to a judge forcing the forest service to survey and manage for non-ESA species so there’s no more legal gridlock in the future. There’s still legal gridlock, still legal and congressional attempts to override laws to increase logging. Ancient forest on BLM land in Oregon is where we’re currently gearing up for a huge fight to keep ESA protections in place.
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As you can see from the info above… This post stirred my passions to explain that the ESA is in no way a static law, it’s actually been bent over backwards so far that it barely functions and at the same time I know some many beautiful thriving fecund places that would cease to exist if the nearly crippled ESA was entirely rescinded….
good job, Dean.
very good.
As a co-author of Alternative EF (Ecology of Fire) in the FEIS for the Warner (Creek) Fire Recovery Project (in critical Spotted Owl habitat), a resource for the successful Sierra Club suit stopping the project due to failure to consider the Arson issue, a witness to the subsequent “Salvage” Rider (318) giving Hogan a great excuse to render that victory moot, the then author of the Fire Process RNA proposal utilizing the Warner Fire area which became the rallying document for the Cascadia Free State occupation that ran out the clock on salvage logging in Warner, and an assistant in the defense of the arrested occupiers (a defense that successfully made monkeys out of the LEOs and the federal prosecutor) I can attest to the voracious appetite of the public land manager line officer corps to mangle the ESA, to the creative passion of the spectrum of activists from ground to courtroom, and to why the feds had to re-define protest of environmental crimes as “eco-terrorism” (in order to over-trump it.)
This O&C lands battle is going to be harder. Warner was just one site, universally-known-criminal logging contractors had won the bids, and each (US Sen) Ron, (US Rep) Pete and (Governor) John were sympathetic. I am sorry to say that a victory for the forest this time will risk ending Peter’s career, for victory must be had. The slope of political calculus and horse-trading, once begun down, becomes evermore slippery as time goes on. Peter was a good man. I tried to warn him not to take that first step decades ago.
whoops, typo — missed the “e” on the end of “Deane”