Noah's Choice: The Future of Endangered Species.

In Noah's Choice: The Future of Endangered Species, Charles Mann and Mark Plummer question many of the assumptions underlying our recent species protection efforts, bringing a fresh, critical perspective to the endangered species debate. The goals and accomplishments of the Endangered Species Act (ESA) are analyzed with an emphasis on the range of costs and benefits. Noah's Choice provocatively articulates the ethical and philosophical tensions between societal development and presentation of biological diversity. This Review focuses on the significance of Noah's Choice to the current ESA reform debate.

I. INTRODUCTION

A band of the staunchest defenders of the Endangered Species Act of 1973 (ESA)(1) have withdrawn to a modem Alamo. For them, there is a line as sharp as the one Travis's sword carved in the ground of the mission at Bexar. Is U.S. wildlife conservation policy fundamentally committed at all costs to saving each genetically unique life form and distinct population segments, or not?

From the embattled perspective of many environmentalists, the ESA is both the crown jewel and the last redoubt. The environmentalists' sense of siege is heightened by what they perceive to be assaults on every front against the conservation regimes built in the last quarter century. They are convinced that there is rock-solid public support for environmental protections and that they will be vindicated in a backlash against the onslaughts of the hard right even if (perhaps especially if) the walls of this statute are temporarily breached. They are banking, more than a little uneasily, on a presidential veto strategy for the contingency that majorities in the House and Senate might hear the electorate differently and pass amendments seriously weakening the current law's protections.(2) Whether conservationists can count on President Clinton is conjectural in view of his shrinking from a veto of the bill containing the so-called "timber salvage" provision.(3) Many of them consider that action treasonous and a bad sign of weakness or attenuated dedication to green ideals.

The attack on the ESA is mounted by forces as fiercely committed as the nationalists of 1836 who tried to oust the Texians from their land. They have justifiable grievances and are too often vilified. They advocate property rights and the pursuit of mainstream aspirations for jobs, development, and prosperity. Unabashed in their advocacy of people's interests where they conflict with obscure beetles, beach mice, and pearly mussels, or even relatively more "charismatic" red-cockaded woodpeckers, spotted owls, and bald eagles, they see this as a campaign to end a tyranny of ecological correctness.

Right now, this piece of the political turf is in the balance, to paraphrase the title and theme of Vice President Al Gore's popular, if seldom seriously scrutinized, polemic on the environment as the "central organizing principle" of civilization.(4) Environmentalists regard the legislative prospects as ominous, because in March 1995 there were more than sixty votes in the Senate for a six-month moratorium on all new species listings and critical habitat designations tacked onto the Supplemental Defense Appropriations Act, which the President signed.(5) In May, Senators Slade Gorton (R-Wash.) and Bennett Johnston (D-La.) introduced a bill with a seductively simple premise: the Secretary of the Department of Interior (DOI) should have discretion to develop "conservation objectives" short of full recovery for listed species, subject to citizen suit challenge only in very limited circumstances.(6) This is intended to change all the political and economic dynamics of the ESA and to institutionalize diminished protections for some species.(7) It removes the Secretary's "cover"--the ability to ascribe species-first considerations to the dictate of Congress.(8) DOI Secretary Bruce Babbitt immediately called it worse than a complete repeal of the Act,(9) perhaps because it puts him and his successors on the spot for political, nonscientific decisions. Mr. Babbitt and the conservation community regard the Young-Pombo House bill(10) introduced September 7, 1995 as even more objectionable, with its procedures for compensating private landowners and its relaxation of protections related to federal lands and federal permits.(11)

II. WHO SHOULD BE RESPONSIBLE FOR HABITAT PRESERVATION ON PRIVATE LAND?

There are many controversial facets of ESA reauthorization,(12) but among the most intensely debated is the longstanding interpretation of the Fish and Wildlife Service (FWS) that to get an injunction or to prevail in civil or criminal enforcement, it does not have to demonstrate that an individual of a listed species is actually "kill[ed], injure[d], wound[ed] ... harass[ed]" or otherwise "harm[ed]."(13) Instead, DOI asserts that all it must show is that the activity changes the habitat unfavorably and ultimately results in species loss.(14) The central issue is, thus, who is responsible for species decline attributable to diminished foraging, roosting, wintering, breeding habitat, or the like. Is it the burden of adjacent landowners or those who have property with suitable characteristics within a species' historic range? Or should it be the broader public? Both the Gorton Johnston and Young-Pombo bills would redefine harm to exclude habitat modification as such, covering only "direct action against [a] member of an endangered species."(15)

In one sense, environmentalists dodged a bullet with the Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(16) in which private owners of Pacific Northwest forest contested FWS authority to stop logging in the vicinity of spotted owl nests on the ground that alteration of habitat amounts to "harm" and therefore a "take" prohibited by section 9 of the Act.(17) The Court, while acknowledging that respondents had "advanced strong arguments that activities that cause minimal or unforeseeable harm will not violate the Act," rejected their challenge as overbroad.(18) Following its celebrated snail darter precedent,(19) the Court held that there are clearly some circumstances in which the Secretary's habitat-preserving interpretation of "harm" and "take" is consistent with Congress's intent in the 1973 Act and its 1982 amendments.(20) This somewhat abstruse point is at the heart of FWS's leverage to ban or impose severe mitigation conditions on activities indirectly injurious to individuals of listed species through alterations of their surroundings.

The environmental community and the Clinton Administration quickly proclaimed the ratification of their jurisprudential stand against a reactionary political tide.(21) They touted a double victory(22) with the National Research Council (NRC) report that the ESA is generally soundly based in science and specifically so in "reflect[ing] the current understanding of the crucial biological role habitat plays for species."(23)

Obviously, the conservationists' position is appreciably improved with these two wins. Conservationists would have suffered a serious setback if the Court had ruled that even the existing law, passed in the heady first days after the Big Bang of pro-environmental sentiment, did not reach habitat protection on private land at all. It would have been a debacle for them if the National Academy of Sciences had denounced the current regime as unscientific. In another sense, however, the Sweet Home case and the NRC report only sharpen the knives of those in Congress who say: 1) the ESA is anachronistic, utopian, and anti-people and 2) the science of saving species should not always dominate economics and politics. The winds of this war are blowing furiously.

III. THE ETHICS OF SPECIES CONSERVATION

Until now, environmentalists have almost always had the higher scientific and scholarly ground on species conservation issues. Industries, developers, and project proponents cramped by the ESA have usually been painted as black hats motivated by profit, not philosophy or principle. However, in their recently released book, Noah's Choice: The Future of Endangered Species,(24) Charles Mann and Mark Plummer make a closely reasoned case for reforming the Act. The book's ideas may have considerable influence on the reauthorization process.(25)

First, this mostly well-researched book is refreshingly substantive, in contrast to our highly polarized, typically vapid political conversation about endangered species. Snappy headlines and acid rhetoric with sound-bite depth have come to dominate both sides' reauthorization arguments. While some legislators,(26) editorialists(27) and magazines(28) are responsible for the worst over-simplifications and lugubrious pieties, we also see this phenomenon in putatively serious literature.(29) Noah's Choice is thoughtful and in some ways much more well-grounded than Gregg Easterbrook's acclaimed A Moment on the Earth.(30) Though Easterbrook offers some valuable perspectives on species preservation(31) in the course of his sprawling treatment of environmental affairs, his conceit of "thinking like Nature" leads to a too-breezy optimism that species making it through a 1940s-to-1970s period of ubiquitous gross pollution and unrestricted development should from now on be in the clear. Easterbrook tries too hard to fit the ESA into his overarching construct that environmental laws have been an under-celebrated "leading success story."(32)

Mann and Plummer make an intellectually respectable; case that the ESA has failed, or at least has been substantially disappointing, in its core objectives. They argue that it has not provided an effective safety net for declining species, much less promoted species recoveries.(33) They note that the statute's Canute-like command to stop the advance of endangerment has resulted in the addition to the list of one hundred species for every one removed as successfully recovered.(34) The environmentalists may claim progress for the bald eagle, peregrine falcon, and brown pelican, Mann and Plummer rightly rejoin that those positive trends are primarily attributable to the banning of DDT and other organochlorine pesticides in the 1970s rather than strictly ESA-related measures.(35) In their view, only the upward reclassification of the Utah prairie dog and the Aleutian Canada goose can be ascribed to actions undertaken through the Act,(36) and only 69 of the 711 species listed as of 1992 were improving toward recovery, with a full 33 percent in continuing decline.(37) As with the Superfund pattern of ever more sites added to the National Priorities last than delisted through cleanup, this is not a rosy scenario.

Mann and Plummer reject the notion that many final extinctions are in the offing and instead would define the problem, at least in the United States,(38) as a function of serious, protracted species declines. They challenge those who make dramatic projections of extinctions to come, engaging the scientific debate about the standard approach to the species-area curve used by conservation biologists such as Paul Ehrlich, Thomas Lovejoy, and others who suggest more dire results.(39) They point to the relatively few total species losses(40) stemming from general societal development, as opposed to largely now-bygone direct exploitation of species for trade or sport.(41) But while Mann and Plummer reject colorful, apocalyptic vocabulary about "rivet-popping" extinctions,(42) they are not proponents of denial. Indeed, one of their main contributions is the insistence that we appreciate the gravity of the circumstances and formulate a realistic set of choices to ameliorate them.(43)

Mann and Plummer ascribe the ESA's bleak recovery numbers to both the scientific and practical difficulties in "uncooling the frog."(44) (Translation: If you put a frog in boiling water, it will pop out safely. If you put it in tepid water and turn the heat up slowly, it will cook to death. Analogously, you cannot achieve immediate recovery of a species that has been under prolonged stress; instead, you must gradually turn down the temperature.)(45) Just learning enough about the Karner Blue butterfly, for example, to know what causes its predicament and how to devise a recovery strategy is a major endeavor. Halting the slide of any species that has been facing a myriad of incremental pressures and incursions for many years will necessarily require hundreds of individual actions. No single one will be decisive. Most will demand painful adjustment or forbearance of otherwise desired human activities, and the effort will have to be sustained indefinitely.

Mann and Plummer think that saving sufficient lupine habitat for the Karner Blue to make it permanently viable would cost in excess of $150 million.(46) With so Many hundreds of already-listed species in such intractable trouble, and so many more likely to be added to the list,(47) they argue that the prevailing statutory scheme that aims to save them all completely, regardless of economic, social, and political considerations, can no longer be pretended a manageable proposition.(48) It "reaches too high, and usually gets little."(49) They urge that it is high time for a basic ESA overhaul to establish priorities. In other words, Mann and Plummer say the current law's "Noah Principle," an unqualified natural right of species survival, must be abandoned or at least readjusted.(50)

The authors are especially critical of the manner in which FWS is impelled to administer the Act. Because they are thrust into so many disputes about management of the public domain and resources and so many local real estate development matters with the immutable charge of fostering species recovery, FWS headquarters and regional officials have become heavy-handed "ecological mandarins."(51) Mann and Plummer are possibly too grandiloquent in reaching to apply philosopher David Hume's 1739 observation that knowing what "is" scientifically will not be enough to determine what ethically "ought" to be--FWS biologists have become the arbiter of both the "is" and the "ought," they say.(52) However, many counsel who have tried to steer a project through a Section 7 consultation or toward approval of a habitat conservation plan may agree with the authors' depiction of autocratic, trivially prescriptive, and unrealistic attitudes in FWS field offices.(53)

The decision whether to permit the construction of an Oklahoma highway extension facilitating Indian access to a medical facility through the only known habitat of one of twenty-some species of burying beetle is one of Mann and Plummer's most incisive illustrations of this far-reaching power.(54) Another is the discretion to issue a "bird letter" to an Austin-area landowner, certifying that there are no black-capped vireos on the property, which means that it commands $1.5 million instead of being unsaleable.(55) As society and species increasingly conflict at the leading edges of development, this "mandarin" role for federal bureaucrats will become ever more untenable.

Mann and Plummer advocate a new philosophical construct for endangered species conservation that would recognize the whole cluster of utilitarian and nonutilitarian reasons for which society values them: biodiversity, medicinal drugs, food, recreation/tourism, aesthetics, and others.(56) Undeniably, this is anthropocentric. If it sounds uncomfortably like gross triage, well, it is.(57) Mann and Plummer flatly say that continuing with a "perfect duty" to biodiversity is unethical because trying to save every species perfectly would force society to destroy or abandon many of its other accomplishments.(58) Moreover, they maintain that it would be utterly impracticable, even if we were willing to turn the habitat clock back free hundred years.(59)

Mann and Plummer maintain that they only want to sink the "illusory boundless ark"(60) of the ESA and replace it with a vessel that will hold water. They suggest scaling back the landowners' and project sponsors' "minimum duty" (in other words, the definition of prohibited take), combined with a national biodiversity trust to preserve declining species' habitats.(61) Urging a countrywide, comprehensive debate between ESA supporters and opponents, they anticipate that both will deem their proposal "quixotic," because big, new, on-budget programs are implausible in today's climate.(62) (Rather, the environmental community labels it disingenuous, because it is seen to be special pleading for real, immediate deregulation and a mirage of future preservation.) The authors are on the mark on one thing: the best that can be said about the current ESA is that in many cases it has slowed the downward spiral.(63)

The problem with Mann and Plummer's book is the ending--or the absence of one. They offer a facile excuse that they do not "feel comfortable specifying" what should be the reduced "minimum duty" or retrenchment of the section 9 take definition; they punt to a "serious national conversation about the value of biodiversity."(64) It seems anomalous that so thorough and lucid an exposition of the flaws of the existing regime would be accompanied by so tentative a specification of a new world order. Their critics will undoubtedly say that is no surprise, because their objective is not much of a new order. Nevertheless, Mann and Plummer's book makes a vital contribution in trying to force a put-your-money-where-your-mouth-is evaluation of our commitment to effective species conservation. Is one of the reasons some environmentalists are fighting so hard to keep the existing law because they do not really have confidence in public support for funding full-recovery decisions for all species if the full costs are known?(65)

IV. CONCLUSION

There a number of other worthy ideas for ESA reform consistent with Mann and Plummer's thesis presently being proposed on Capitol Hill and by the Clinton Administration. These include market-oriented incentives(66) and favorable income or inheritance tax treatment for landowners encouraging conservation of species habitat.(67) An especially worthy proposition would remove perverse disincentives in the existing scheme, such as those motivating landowners to clear or destroy habitat to avoid being saddled by ESA protections.(68) It is also appropriate to recognize an entitlement to some compensation in some circumstances for those whose property uses are significantly restricted for the public good of saving species, because failure to do so amounts to an inequitable "neighbor pays" dogma.(69) Insufficient attention has been given so far to an ESA corollary of the environmental audit or self-evaluative privilege: people should not be penalized by compulsory discovery of their studies of a species' use of their private lands. Just as we should want to create incentives for individuals and companies to review their hazardous waste arid air and water pollution issues by protecting the confidentiality of audit documents, we should shield their good-faith internal deliberations about species and habitat implications.

The United States must find the means for more habitat conservation, not less, if we are to retain our natural heritage and biological diversity. We must save species' habitats more preventatively, before extinction emergencies arise, and in larger chunks. As with the related matter of wetlands protection, "postage stamp" approaches will not suffice. Paradoxically, Secretary Babbitt's commendable National Biological Survey and natural communities conservation planning initiatives have been largely thwarted by the abreaction to ESA disputes. A majority of the electorate apparently believes that endangered species policy should take account of costs, jobs, and other indicia of impacts on people,(70) contrary to the chief tenet of the ESA.(71) Rather than continuing to breed further irreconcilable and politically unsustainable resentments, it would be preferable to find a course that does not inevitably, absolutely pit birds, predators, or invertebrates with funny names against people's prosperity. In the end, it is not a bad idea to recognize straightforwardly the rightful places of economics and politics in the calculus of endangered species decisions. The alternative is worse.

Certainly, Noah's Choice will be used as a tool of convenience by some who just want to relieve ESA constraints on landowners and industry and do not care about the future of species or habitats. Unfortunately, environmental orthodoxy's rejection of Mann and Plummer's valid main points could play into the hands of anti-wildlife extremists and others unsympathetic to conserving nature. There is a serious danger for conservationists in failing to appreciate that a "fight for the environmental status quo"(72) is ill-conceived and indefensible. Drawing a line and standing fast may "symbol[ize] ... valor in the minds of men,"(73) but it may also lead to the destruction of the fort.

(*) Donald A. Carr, J.D. 1974, George Washington University; BA. 1970, Cornell University. Mr. Carr is currently managing partner of the Washington, D.C. office of the New York-based law firm of Winthrop, Stimson, Putnam & Roberts. William L. Thomas, J.D. 1989, Georgetown University; B.A. 1986, St. Olaf College. Mr. Thomas is currently an associate of the firm. (1) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994). (2) See Welton J. Harris III, Hoosier Expects Veto on Endangered Species Act, Indianapolis News, July 5, 1995, at E-1, see also Margaret Kriz, The Environment: Goal Line Stand, 27 Nat'l J. 2334 (1995); Margaret Kriz, The Green Card, 27 Nat'l J. 2263 (1995); Margaret Kriz, Drawing a Green Line in the Sand, 27 Nat'l J. 2076 (1995); Margaret Kriz, Out of the Wilderness, 27 Nat'l J. 864 (1995); Everett Carl Ladd & Karlyn H. Bowman, Attitudes Toward the Environment 41 (1995) (American Enterprise Institute monograph) (observing that opinions about ESA reauthorization and considerations of its economic impacts depend significantly on how survey questions are asked). (3) H.R. 1158, 104th Cong., 1st Sess. (1995). President Clinton vetoed this bill on June 7, 1995. Representative Robert Lavingston (R-La.) reintroduced the salvage logging provisions as section 2001 of H.R. 1944, which the President signed into law as Pub. L. No. 104-19 on July 27, 1995. The President recently second-guessed himself on this matter (similar to his revisitation of the 1993 tax increase), but the flip-flop did not inspire environmentalists' confidence. See, e.g., Timothy Egan, As Logging Returns, Recrimination on Why, N.Y. Times, Dec. 5,1995, at A-16; Todd S. Purdum, Who's Sorry Now?; Stalwart in Defense of His Shrinking Turf, N.Y. Times, Dec. 10, 1995, [sections] 4, at 1. (4) Albert Gore, JR., Earth in the Balance: Ecology and the Human Spirit 239 (1992). (5) Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73, 86 (1995). (6) S. 768, 104th Cong., 1st Sess. (1995). (7) Senator Slade Gorton, Remarks at the Annual Meeting of the Northwest Forestry Association (Apr. 12, 1995); see Timothy Egan, Gorton Attacks Law on Species: Bill Would Scrap Major Parts of Act, Seattle Post-Intelligencer, Apr. 13, 1995, at A1. (8) S. 768, 104th Cong., 1st Sess. (1995). (9) Proposed Bill Would Count Human Values as Important in ESA Reauthorization, Daily Rep. for Executives (BNA), at A-20, A-21 (May 10, 1995). (10) H.R. 2275, 104th Cong., 1st Sess. (1995). Id.; Endangered Species Bill Introduced; Babbitt Says Measure Guts Protections, Daily Rep. for Executives (BNA), at A-21, A-22 (Sept. 8, 1995). (12) For a sampling of the debate over reform and reauthorization of the statute, see generally The Keystone Center, The Keystone Dialogue on Incentives for Private Landowners to Protect Endangered Species (July 25, 1995) (on file with author); James Drozdowski, Saving an Endangered Species Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. Res. L. Rev. 553 (1995); Jon Welner, Natural Communities Conservation Planning: An Ecosystem Approach to Protecting Endangered Species, 47 Stan. I. Rev. 319 (1995); David Farrier, Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations?, 19 Harv. Envtl. L. Rev. 303 (1995); William J. Snape III & Heather L. Weiner, Recipe for Reauthorization of the Endangered Species Act, 5 Duke Envtl. L. & Pol'y F. 61 (1995); Robert Meltz, Where the Wild Things Are: The Endangered Species Act and Private Property, 24 Envtl. L. 369 (1994); Nancy K. Kubasek & M. Neil Browne, The Endangered Species Act: An Evaluation of Alternative Approaches, 3 Dick. J. Envtl. L & Pol'y 1 (1994); Stephen M. Meyer, Final Act, The New Republic Aug. 15, 1994, at 24. (13) Endangered and Threatened Wildlife and Plants, Introduction and General Provisions, 50 C.F.R. [sections] 17.3 (1994). The ESA defines the term "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct." 16 U.S.C. [sections] 1532(19) (1994). Subsequent to the enactment of the statute, FWS issued a regulation interpreting "harm" to mean: "an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patters, including breeding, feeding or sheltering." 50 C.F.R. [sections] 17.3 (1994). Harass in the definition of "take" in the Act means: "[a]n act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering." 16 U.S.C. [sections] 1532 (1994). Thus, significant environmental modification or degradation that has such effects is included within the meaning of "harm" 50 C.F.R. [sections] 17.3 (1994); see generally Kristen M. Filetcher, Legislative Reform: Conserving Their Kingdom: Habitat Modification as a Harm Under the Endangered Species Act, 21 J. Leg. 133 (1995) (examining the debate over the definitions of "harm" and "take" and arguing that Congress should specifically include habitat modification when it reauthorizes the ESA). (14) 50 C.F.R. [sections] 17.3 (1994). (15) S. 768, 104th Cong., 1st Sess. [sections] 402 (1995); H.R. 2275, 104th Cong., 1st Sess. [sections] 202 (1995). (16) 115 S. Ct. 2407 (1995). (17) Id. at 2410. (18) Id. at 2414. It is altogether possible that the Court might have come out differently had plaintiffs framed the case more narrowly, by limiting the challenge to the DOI rule as applied to prohibitions on timbering within a wide radius of owl nests. The apparently overriding concerns in Justice John Stevens's majority opinion and Justice Sandra Day O'Connor's concurrence are for habitat destruction deliberately intended to accomplish species death or jeopardy or for otherwise culpable behavior that incidentally leads to species death or jeopardy. (19) Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978). (20) Sweet Home, 115 S. Ct. at 2413-16. (21) John H. Cushman, Jr., Environmentalists Gain a Victory, at Least for the Moment, N.Y. Times, June 30, at A24; Supreme Court Strengthens Protection of Endangered Species Habitats, Daily Rep. for Executives (BNA), at A-25 (June 30, 1995). (22) See Tom Kenworthy, Panel Supports Stronger Species Act, Wash. Post, May 25, 1995, at A3; Study Says Species Act Based on "Sound Science," Backs Some Changes, Daily Rep. for Executives (BNA), at A-27 (May 25, 1995). (23) National Research Council, Science and the Endangered Species Act 60 (1995) (prepublication draft) (on file with author). (24) Charles C. Mann & Mark L. Plummer, Noah's Choice: The Future of Endangered Species (1995). The authors' earlier article, The Butterfly Problem, also examines the problems the ESA poses for private land owners. Charles C. Mann & Mark L. Plummer, The Butterfly Problem, Atlantic Monthly, Jan. 1992, at 47. (25) Senator Gorton, for example, borrowed heavily from Mann and Plummer's analysis. See Gorton, supra note 7. (26) Ill-considered comments of the kind offered recently by Representatives J.D. Hayworth (R-Ariz.) and Linda Smith (R.-Wash.) are not atypical. Gregory McNamee, Open Season: Arizona Officials Stalking the Endangered Species Act, Ariz. Republic, June 11, 1995, at E1, (quoting Hayworth as commenting, in reference to species protection, that the federal government is responsible for "economic genocide" in the State of Arizona); Marla Williams et al., Vancouver Draws 3,000 to Debate Species Act, Seattle Times, Apr. 23, 1995, at A1 (quoting Smith as she referred to hearings on ESA reform: "These hearings are our attempt to negotiate a decision, hopefully one that doesn't kill the baby"). Representative Helen Chenoweth (R-Idaho) took the cake with her diatribe about the unbelievability that sockeye salmon could be regarded as endangered as long as one could buy a can at the supermarket. See Michael Mansur, Progress Cuts Off Salmon Spawning, Electric Power from the Columbia River Tragic for Fish Species, K.C. Star, July 30, 1995, at A1. (27) See, eg., Keep Environment Unpolluted, New Orleans Times-Picayune Apr. 20, 1995, at B6 (claiming the Republican Congress is "right now, dismantling important environmental safeguards in the name of `streamlining' government and `removing excess regulations' they say are a `burden' to the `average American"); Endangered Politics Puts Species Protection at Risk, Minneapolis-St. Paul Star-Trib., Apr. 7, 1995, at 20A (simplifying the reauthorization debate to a conflict between progress and the continued existence of endangered species); Daniel Hall, Facing Extinction: The Endangered Species Act, S.F. Examiner, Mar. 15, 1995, at A19 (characterizing reform bills as "a set of cynical bills designed to hamstring the Endangered Species Act without attracting peoples' attention"). (28) See, e.g., Douglas Chadwick, Dead or Alive: The Endangered Species Act, Nat'l Georaphic, Mar. 1995, at 12, 37, 41 (tracing environmental protection to "the extraordinary human capacity for empathy, transfigured into compassion toward lives other than our own'). (29) See, e.g., Robert Gordon & James Streeter, Salamander the Great: The Imperial Reach of the Endangered Species Act, 67 Pol'y Rev. 56, 58 (1994) (deeming several species of snails, insects, squirrels, and plants as unworthy). (30) Gregg Easterbrook, a Moment on the Earth: The Coming Age of Environmental Optimism (1995). (31) Id. at 211-27, 551-76. (32) Id. at 471-72. (33) Mann & Plummer, supra note 24, at 245. (34) Id. at 214. (35) Id. at 241-42; see Final Rule to Reclassify the Bald Eagle from Endangered to Threatened in All of the Lower 48 States, 60 Fed. Reg. 36,000 (July 12, 1995); Advance Notice of a Proposal to Remove the American Peregrine Falcon from the last of Endangered and Threatened Wildlife, 60 Fed Reg. 34,406 (June 30, 1995). (36) Mann & Plummer, supra note 24, at 242-43. (37) Id. at 243. (38) Id. at 79-80 ("We face, in sum, not the onrushing, all-destroying wave of extinction ... but an immense aggregation of small, individual situations that is not reducible to a simple equation. These situations are nudging a large ... fraction of North American biodiversity down the path toward extinction."). (39) Id. at 65. (40) Id. at 72-76 (describing the losses of the ivory-billed woodpecker, the Carolina parakeet, and Bachman's warbler as precipitated by the deforestation of North America in the post-Columbian era). (41) Id. at 71. (42) Id. at 72-81. (43) Id. (44) Id. at 85-87 (45) Id. at 85. (46) Id. at 109. (47) Id. at 214, 231. (48) Id. at 214-31. (49) Id. at 231. (50) Id. at 214-24. (51) Id. at 208, 220 (borrowing the phrase from A.D. Tarlock, Earth and Other Ethics: The Institutional Issues, 56 Tenn. L. Rev. 43, 75-76 (1988)). (52) Id. at 206 (citing 3 David Hume, A Treatise of Human Nature 469-70 (1888)). (53) See id. at 208-09. (54) Id. at 26. Some environmentalists argue that the fact that the project ultimately went forward proves the authors are misguided. On the contrary, the substantial delay in an obviously desirable endeavor exemplifies ESA impacts on programs for the betterment of people. This is not to say that the beetle population was unimportant, but only to underscore the legitimacy of the competing human considerations, which the conservation community and the FWS bureaucracy tend to minimize. (55) Id. at 211. (56) Id. at 213-16. (57) Mann and Plummer's new philosophical construct is also analogous to environmental risk assessment proposals and to a classification scheme for preserving different kinds or grades of wetlands values, each under examination in Congress now. See, e.g., S. 229, 104th Cong., 1st Sess. (1995) (environmental risk assessment proposal); H.R. 1022, 104th Cong., 1st Sess. (1995) (same); H.R. 690, 104th Cong., 1st Sess. (1995) (same); H.R. 9, 104th Cong., 1st Sess. (1995) (same); H.R. 961, 104th Cong., 1st Sess. (1995) (wetland classification proposal to amend the Clean Water Act). (58) Mann & Plummer, supra note 24, at 216-19. (59) Id. at 143. (60) Id. at 229. (61) Id. at 227-36 (62) Id. at 232. (63) Id. at 247. (64) Id. at 226. (65) A few mainstream environmentalists, including the highly respected Michael Bean of the Environmental Defense Fund, realize that the ESA must be more flexible. They point to examples in which DOI has been willing to reinterpret the statutory rules, as in the "safe harbor" agreement for landowners of red-cockaded woodpecker habitat in North Carolina. The problem, however, is that DOI has to seriously reshape the law and its prior administrative practice to find this flexibility, giving rise to nonfrivolous concerns about the legal defensibility of such agreements against third-party challenges. Id. at 188. (66) See Role of Landowner Incentives in Species Preservation Discussed by Panel, Daily Rep. for Executives (BNA), at A-16 (Aug. 4, 1995); Paul D. Kamenar, Nollan, Dolan and Beyond, The Recorder, Sept. 15, 1994, at 7, available in LEXIS, News Library, The Recorder (RECRDR) File; Endangered Species Act--Incentives to Encourage Conservation by Private Landowners: Hearing Before the Subcomm. on Environment and Natural Resources, House Comm. on Merchant Marine and Fisheries, 103d Cong., 1st Sess. (1993). (67) H.R. 522, 104th Cong., 1st Sess. (1995). (68) See Richard A. Epstein, Simple Rules for a Complex World 294 (1995) (describing the "[s]hoot, shovel, and shut up" phenomenon). (69) Michelle K. Walsh, Achieving the Proper Balance Between the Public and Private Property Interests: Closely Tailored Legislation as a Remedy, 19 Wm. & Mary Envtl. L. & Pol'y Rev. 317, 322 (1995); William A. Fischel, Regulatory Takings Law, Economics, and Politics (1995). (70) Ladd & Bowman, supra note 2, at 40 (citing 1991 NBC News/Wall Street Journal poll in which 51% of those surveyed said that in general it was more important to protect jobs than the spotted owl). (71) 16 U.S.C. [sections] 1533 (1994). (72) Jessica Mathews, Battle for the Environment, Wash. Post, Nov. 27, 1995, at A21. (73) John M. Myers, The Alamo 235 (1948).