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Op-Ed Explains How New Interpretation of the ESA Threatens its Reach

Conservation, or Curation? 

Originally published in the New York Times – August 20, 2014

THE United States Fish and Wildlife Service — the main agency for the conservation of species — recently announced a new interpretation of the Endangered Species Act that severely limits its reach and retreats from the conservation ethic that healthy landscapes depend on native plants and animals.

The law says that a species qualifies for protection if it is in danger of extinction “throughout all or a significant portion of its range.” A species does not need to be at risk of extinction everywhere it lives if it is endangered in a significant portion of its range. But what is “significant”? And how is “range” defined?

Now, under a policy that took effect July 31, the agency has provided answers. The law’s protections, for practical purposes, will be applied only if a species is at risk of extinction in a vital (read, significant) portion of its range where its loss would put the entire species at risk of extinction. And the concept of range no longer takes into account its historical distribution but defines the concept in terms of where the species is found now.

This means that as long as a small, geographically isolated population remains viable, it won’t matter if the animal or plant in question has disappeared across the vast swath of its former habitat. It won’t qualify for protection.

This interpretation threatens to reduce the Endangered Species Act to a mechanism that merely preserves representatives of a species, like curating rare pieces in a museum. Also likely to suffer are efforts to protect or repopulate areas where endangered species once lived.

Imagine if this new approach had been in place when the bald eagle was being considered for protection in the 1970s. Arguably, the national bird might never have been listed as endangered in most of the lower 48 states, even though it had virtually been extirpated by illegal hunting and the pesticide DDT. Why? Because a healthy population of bald eagles remained in Alaska and Canada.

Today, the return of the bald eagle is one of the great successes of the Endangered Species Act. The bird is flourishing in the very areas where it had been wiped out and reasserting its position in the ecological order that was disrupted by its absence. This was accomplished in part by using the authority in the law to protect nesting sites and summer and winter roost sites and to reintroduce the bird into its historical range.

(The Fish and Wildlife Service says it still would have protected the bald eagle under this new interpretation. Nevertheless, a case could have been made to withhold the law’s safeguards once the bird was no longer at risk of extinction outright.)

More recently, other threatened animals haven’t been so lucky.

In cases involving the gray wolf, wolverine and swift fox, the agency, employing the logic of this new policy to guide it, decided or proposed to remove or withhold protections for those animals after concluding there was no risk that they would go extinct. Never mind that they had vanished from much of the territory they once inhabited. (The gray wolf, which is in the administrative process of losing its protection under the law, had been lost from 85 percent of its range but securely inhabits the last 15 percent.) The agency reasoned that there were enough of these animals left in their much-diminished range to survive.

Several years ago, the Fish and Wildlife Service and a sister agency, the National Marine Fisheries Service, began developing a uniform policy for interpreting that key phrase in the Endangered Species Act — the line that says that a species must be at risk “throughout all or a significant portion of its range” to qualify for protection. Uncertainty over the meaning of that phrase and government decisions based on varying interpretations had led to controversy and litigation.

The two agencies call their reading of the law a “reasonable interpretation,” although they acknowledge that “there is no single best interpretation.” In fact, their reading is especially narrow and possibly contrary to Congress’s intent when it passed one of the nation’s most important conservation laws. A more appropriate interpretation of range would be those portions of a species’ historical distribution that are suitable, or that can feasibly be made suitable, by mitigating or removing the threats that had caused the species’ decline.

If the purpose of conservation is merely to preserve the fewest possible members of a species, then this new policy might be adequate. But this approach amounts to a retreat from two conservation aspirations that had long animated the law: first, to mitigate harms that humans had perpetrated against certain species, such as severely reducing their geographic range; and second, to make it possible for species to return to landscapes where they had been extirpated. The idea was that healthy ecosystems depend on the presence of native species.

Since taking effect in 1973, the law has been instrumental in saving many species from extinction, including the California condor, American crocodile, whooping crane and black-footed ferret. Some 1,400 plants, animals and fish are now on the list.

This new approach does not mean that endangered species won’t still be saved. But it falls far short of the conservation aspirations the law once embodied. This new policy will result in a world for our children even more diminished than the one we live in.

John A. Vucetich is an ecologist at Michigan Technological University. Michael Paul Nelson is an environmental ethicist at Oregon State University.