Legislation is often just a political expression of moral concern.  We are all disburbed to hear of species going extinct becasuse of human mis-management of the environment, so Congress created the Endangered Species Act to protect species from extinction.  The fact that the Fish & Wildlife Service (F&WS) gets a pitifully small annual appropriation from Congress to actually protect endangered species does not generate much public concern.

The Endangered Species Act of 1973 directs the US Dept. of Interior's Fish & Wildlife Service and National Marine Fisheries Service to maintain lists of species that are "endangered" (in imminent peril of extinction) or "threatened" (experiencing rapid population decline and likely to become endangered), to develop "recovery plans," and to prosecute people who "take" species on these lists.  As of May, 2002, there are 983 (387 animal, 596 plant) US species (and another 500+ foreign species) currently listed as "endangered."  Another 275  (128 animals, 147 plants) are "threatened."   F&WS and NMFS have developed recovery plans for 982 of the combined total of 1258 (515 animal, 743 plant) species.  An additional 44 species are "proposed" for listing, and 246 are "candidates" for listing.  F&WS and NMFS have designated "critical habitat" areas for only 152 of endangered and threatened species.

In the past F&WS has used its authority under the ESA fairly broadly. For example, it halted construction of the almost-complete Tellico Dam to protect the snail-darter, and it forced a number of eastern states (including Delaware) to close some very popular beaches to protect the piping plover. Although the ESA has widespread support, like many other Federal environmental policies, it doesn't compare the costs versus the benefits of species protection. Since the Tellico Dam case, the ESA has sometimes been exploited by environmentalists as a convenient tactic to delay public works projects.  Not surprisingly, the listing of species as endangered or threatened has become highly politicized.  There are lots of legal definition issues here.  What is a "species?  Does ESA only protect genetically distinct species, or genetically indistinct sub-species (e.g., Florida panther) as well?  What constitutes a "taking?"  If habitat destruction consistutes a taking, what habitat alterations are permitted?

ESA is grossly underfunded.  Implementing all of F&WS's current recovery plans would cost something like $10 billion, perhaps $1 billion annually; but the Federal budget gives F&WS gets less than one percent of that for the program. The ESA allows citizens to petition the Service to list or reclassify a species, and F&WS determines whether the species warrants protection or reclassification.  In some cases, F&WS decides listing is “warranted, but precluded,” i.e., the species deserves to be listed, but the Service lacks the resources to propose it for listing. ESA merely requires the F&WS to review warranted but precluded species annually until they are actually listed or reclassified or the Service determines the action is no longer warranted.

F&WS has developed a Threatened and Endangered Species System (TESS) for prioritizing species.  This system is based on numerical indices of various biological and economic attributes calculated for each candidate species.  A weighted sum of these indices is supposed to represent a species' overall "eco-political score."  The obvious question is: how do you determine the "correct" weights?  The F&WS ranking system is based on three factors: risk of extinction, potential for recovery, and genetic similarity to non-threatened species. This system ignores the differential costs of recovery programs.

Of the 30-100 million species on Earth, only about 1.5 million have even been named, and we have no accurate measure of how many are going extinct each year.  Although extinctions are integral to natural evolutionary processes, there is no question that human impacts on the environment have accelerated rates of species extinction a thousand-fold or more.  Since each species embodies unique genetic information, we might try to justify protection of endangered species by pragmatic appeal to human interests, e.g., the species might have some wonderful medicinal value, like the Pacific yew, where researchers first discovered the cancer drug Tamoxifen.  This argument is popular, but probably overstated: in reality, the huge majority of species will not have any conceivable market value.  Biodiversity is better defended on more practical ecological grounds: it is a good barometer of general ecosystem health, and a high degree of biodiversity implies better ecosystem resilience to disturbance.

Paul Erlich articulates a "Spaceship Earth" ethic in which all species have a (presumably equal) "right" to exist. Most Americans implicitly subscribe to this ethic, but limited funding for the ESA simply won't let us save everything. Public demand for protecting "charismatic megafauna" is high, since people tend to anthropomorphize mammals and birds particularly. Demand for protection of most other species is low. Since public preferences regarding which species to save are extremely vague, F&WS policies are correspondingly confused.

Some environmentalists reject any prioritization of species as immoral, and argue that any benefit-cost analysis of species protection programs legitimizes the very market processes that are destroying species.  This reflects a serious misconception of benefit-cost analysis. Benefit-cost analyses which account for non-market values don't validate market solutions: they reflect much broader public preferences.  If environmentalists are unhappy with the public choices indicated by these analyses, they need to educate the electorate to support larger and more efficient species protection programs.

Unfortunately, we simply can't afford the luxury of avoiding these hard choices. Since public funding for species recovery programs will never be adequate to insure the survival of all the species we would like to protect, a rational triage policy is needed.  (The original term refers to the strategy of battlefield medics who tend wounded soldiers with reasonable chances of recovery before tending to less critical cases and hopeless cases.)  We spend a lot of money on high-profile but probably hopeless cases (whooping cranes appear to be a case in point), and essentially ignore most other species until their situations become critical.  Preventing problems is often far cheaper than correcting them later.  Triage proposals are criticized as "playing God."  The US Government Committee that hears final appeals in extinction cases is nicknamed the "God Committee."

Rather than obtain large increases in public funding for species protection, we have tended to rely on heavy-handed land-use regulations to protect habitats. This merely shifts the costs of species protection from the public to individual landowners. Although the Supreme Court has construed some highly restrictive land-use regulations as "takings" requiring landowner compesation under the Fifth Amendment ("...nor shall private property be taken for public use, without just compensation.") it has tolerated a range of lesser restrictions, upholding many F&WS challenges to land developments filed under ESA.  Consequently ESA has generated enormous opposition from many landowners and developers, and Congress periodically considers legislation to require better compensation for landowners losing any significant portion of their property's value due to ESA.

Sure, you're in favor of protecting endangered species.  But imagine you've sunk all your money into some big development project, bought the land, paid all the fees, filed all the forms, complied with all the regulations. It's 80 percent built and you're in debt to your eyeballs. You're strolling alone through the site early one morning when you stumble upon a little nest of endangered snotworms. You have a choice: (1) call in the Feds, who will surely halt your project, driving you into bankruptcy and endless litigation (they might even sue you themselves); or (2) just squish the snotworms and live happily ever after.  Sometimes it's hard to be an eco-hero.

Land Trusts

The ESA doesn't give landowners much incentive to protect endangered species on private lands.  Fortunately, various environmental groups such as the Nature Conservancy (TNC) do provide such incentives.  Unlike many noisier enviro groups that spend most of their money lobbying in Washington, TNC focuses on buying up land containing important habitats, or buying conservation easements from owners who agree to maintain the habitats themselves.  TNC focuses on constructive engagement with large corporations, who are often its major donors.  It provides tax and estate planning expertise to facilitate donations of land and conservation easements.  And it can move quickly as an intermediary to purchase land for eventual transfer to state or federal ownership.  It has protected over 12 million acres in the US, and 80 million acres around the world, often using creative partnership arrangements with local agencies to leverage its effectiveness.   The second-biggest "stealth" land conservation program is Ducks Unlimited, which has protected over 10 million acres of waterfowl habitat in North America.

TNC has been a pioneer in debt-for-nature swaps.   Many third-world (LDC) governments have large debts to international banks, and some are in periodic default.  This debt is traded in secondary markets, and various international environmental organizations purchase LDC debt and offer debt forgiveness in exchange for LDC commitments to conserve their critical habitat areas.

In Delaware, TNC sponsors the Natural Heritage Program, which inventories rare and enangered species in Delaware.  Here rare species occurrences are mostly concentrated in forested riparian zones, saltmarshes and "Carolina bays" (small seasonally wet depressions).  Since 1989, the Delaware Chapter of TNC has been involved in protecting over 20,000 acres in Delaware (about two percent of the total land area of the state), including six preserves totaling 5,000 acres that are owned and managed by the Conservancy.