Today in 1973: President Nixon signs the Endangered Species Act into law

December 28, 2012

Today in Legal History

“Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed.”

That statement was uttered by Republican President Richard M. Nixon during the signing of the Endangered Species Act (ESA), 39 years ago today on December 28, 1973.

Since today’s Republican Party does not generally advocate strongly for environmental causes, was President Nixon merely making a token environmentalist statement for publicity’s sake?

That seems unlikely, since Nixon himself called on Congress in early 1972 to pass comprehensive environmental protection legislation.

And the ESA is just that: one of the most comprehensive environmental protection laws ever passed.

As may be commonly known, the ESA provides protection for species listed as endangered under the Act.

A species becomes “listed” due to any of the following statutory factors:

(A)   the present or threatened destruction, modification, or curtailment of its habitat or range;

(B)   overutilization for commercial, recreational, scientific, or educational purposes;

(C)   disease or predation;

(D)   the inadequacy of existing regulatory mechanisms; or

(E)    other natural or manmade factors affecting its continued existence.

A “species” eligible for listing can be an actual species, a subspecies, or a “distinct population segment” (DPS), which is what it describes: a geographically distinct population of a given species.

The ESA’s protection for “listed species” is extensive: it provides civil and criminal penalties for unauthorized “taking, possession, sale, and transport of endangered species;” the ESA is enforced by both the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Fish and Wildlife Service (FWS).

The ESA also provides authority for the federal government (through the two above agencies) to acquire land for the conservation of listed species and authorizes the two agencies to enter into cooperative agreements with states to establish and maintain programs designed to protect endangered species.

Although the Act has certainly helped in the recovery of many species’ numbers, the number of species that have been delisted due to recovery, 27, pales in comparison to the number of species still listed: 2,054.

Moreover, it is extremely questionable whether, based purely on available scientific facts, some species should have been delisted at all.

Although there are probably several species that environmentalists can name, the most widely publicized is the grey wolf.

Last year, I wrote in detail about the saga behind the grey wolf delisting, but it sums up like this:

Gray WolfCertain interest groups (the National Rifle Association and big game hunting lobbies) wanted the wolf’s ESA protections lifted so that the species could be hunted.

The Bush administration had an open ear to these interest groups, and the DWS under that administration subdivided the national grey wolf population into several DPS’s – which were then treated as separate “species” under the Act.

Since two of these wolf populations were doing particularly well, the DWS at the time was able to make the case that the species had “recovered” – in spite of the fact that the grey wolf had historically covered the majority of North America in population numbers similar to those found in these isolated DPS pockets.

Although it’s unlikely that the grey wolf population will ever return to its historic highs even while under the ESA’s protection, it is simply inconceivable that the population will see the levels of recovery that it has in the past four decades without the Act’s protection.

The past four decades since the Act’s passage, however, have seen a dramatic shift in attitudes in Washington: we have gone from a Republican president pushing for stronger environmental regulations to it being almost politically incorrect to even discuss any human impact on the environment.

Then again, just as the pendulum swung one direction, it may yet swing the other, and we may find ourselves again in the situation of a Republican president pushing Congress to pass strong environmental protections.

Even if that scenario never again comes to pass, the Endangered Species Act still provides considerable environmental protections, thanks to its promotion by a Republican president 40 years ago.