Chapter 7. The Endangered Species Act: The Most Successful Environmental Law?
As it was finally passed, the Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. [Chief Justice Warren Burger, TVA v. Hill 1978:2294]
In 1993, then-Secretary of the Interior Bruce Babbitt called the Endangered Species Act (ESA, U.S. Code, volume 16, sections 1531–1543) “undeniably the most innovative, wide-reaching, and successful environmental law enacted within the past quarter century” (Babbitt 1994:355)—a period that included the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act. For federal lands, such as the national forests where the northern spotted owl Strix occidentalis is found, Babbitt’s assessment is probably true. Nonfederal lands, however, which are largely privately owned and regulated by state or local governments, provide all or a large percentage of the habitat for the majority of species listed under the act, including Puget Sound salmon.1 The ecosystems of these species can only be conserved through the cooperation of these other governments, particularly local governments, since they typically have the greatest responsibility for regulating the development and use of private land.
Just how the ESA applies to state and local land-use regulations is currently an evolving issue in the courts. Clearly, a land use that causes the death of listed salmon is a “take.” Less clearly, a state or local regulation that permitted the land use might be found a “take.” If that regulation was designed to protect habitat, but arguably did so ineffectively, state or local liability is even less clear. In addition to these uncertainties, the relationship between most land uses and the death of salmon is complex and indirect. A new house near a stream may incrementally send more storm flows to the stream, which incrementally increases erosion of fine sediment, which incrementally lowers oxygen to some incubating salmon eggs, which incrementally decreases the number of eggs that develop into juvenile fish (though most eggs and juveniles do not survive anyway). It is certainly easier to predict such effects from the construction of hundreds of homes that would be permitted under one government’s regulations, but whether regulations that are arguably substandard would take listed salmon is a difficult enough challenge to prove in court that not one lawsuit alleging it has been filed in the Puget Sound area. How such a suit would be decided has enormous consequences for Puget Sound salmon and other endangered species. The decision would clarify not just the regulatory responsibilities of state and local governments under the ESA. It would also clarify how the act applies to the most harmful type of take for Puget Sound salmon and many other endangered species, which is the cumulative result of many individually minor actions.