The Endangered Species Act: time for a new approach?

I. INTRODUCTION

The enactment of the Endangered Species Act of 1973 (ESA),(1) according to the United States Supreme Court reflected "a conscious decision by Congress to give endangered species priority over the |primary missions' of federal agencies" and to prevent the destruction of such species "whatever the cost."(2) Since its passage, however, the ESA has become the center of bitter debate among environmentalists, farmers, resource users, and landowners. The ESA's most ardent supporters characterize the ESA as "the strongest legislation ever devised for the protection of nonhuman species"(3) and an "environmental jewel."(4) Its fiercest opponents revile the ESA as the product of extremists who put wilderness protection and the rights of endangered animals before the welfare of humans.(5) Almost everyone agrees, however, that the ESA can be improved, and in 1994, the reauthorization of the ESA will be in the forefront of the congressional agenda.(6) This article considers some of the potential reforms by examining four approaches contained in the bills contending to become the cornerstone for reauthorization.

Section Il begins by explaining the basic provisions of the ESA. Section III details some of the criticisms surrounding the ESA. Section IV then describes the various bills and offers a critique of their various strengths and weaknesses. The final section suggests a direction Congress should follow in reauthorizing the ESA.

II. THE OPERATION OF THE ESA

Having a basic understanding of the ESA is essential to evaluating the proposals for its reauthorization.(7) The fundamental purpose of the ESA is to protect species from extinction and conserve the ecosystems on which they depend.(8) The ESA's triggering mechanism is the listing process(9) which classifies at-risk species into one of two categories: threatened(10) or endangered.(11) The listing process also includes designation of "critical habitat"(12) and development and implementation of recovery plans.(13) Once a species has been listed, the ESA prohibits any taking, possession, or sale of that species.(14) Additionally, federal agencies must ensure that their actions do not "jeopardize the continued existence of any endangered or threatened species" or adversely affect critical habitat.(15) The ESA provides only a limited exemption process for federal projects that jeopardize a listed species.(16)

A. Listing of Species

The Secretary of the Interior, acting through the Fish and Wildlife Service (FWS), handles listings for all terrestrial species, and the Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS), lists marine species.(17) A species is listed as "endangered" when the Secretary finds that the species is "in danger of extinction throughout all or a significant part of its range."(18) The Secretary lists a species as "threatened" when it is likely to become endangered in the foreseeable future.(19) Finally, a species may be treated as an endangered or threatened species, even though it is not listed, based on its similarity to a listed species.(20)

Listing of a species may be initiated by the agency itself or by a private party.(21) When a private party petitions for a species to be listed, the appropriate agency has ninety days to determine whether the petitioners have presented "substantial information" to support listing, and if so, the agency has a year to decide how and when it will proceed.(22) Within one year following publication of the proposed regulation, the Secretary must promulgate a rule, request a one-time only six-month extension, or publish a notice of withdrawal of the proposed rule.(23)

In determining whether to list a species as threatened or endangered, the Secretary may consider only five statutory criteria:

(1) the present or threatened destruction, modification,

or curtailment of its range or habitat;

(2) overutilization for commercial, recreational, scientific,

or educational purposes;

(3) disease or predation;

(4) the inadequacy of existing regulatory mechanisms; or

(5) other natural or manmade factors affecting its continued

existence.(24)

The Secretary may not consider economic impacts of the listing; rather, his decision must be founded "solely on the basis of the best scientific and commercial data available."(25)

B. Critical Habitat

Unless impossible or imprudent, the Secretary must also designate critical habitat for each endangered or threatened species(26) In determining critical habitat, the Secretary examines an area for features essential to the species' survival such as food, shelter, and breeding.(27) Designation of critical habitat must be based upon the "best scientific data available," but unlike the listing determination, the Secretary must also consider economic impacts.(28) However, if failure to designate critical habitat will result in extinction, then a critical habitat designation must be made despite economic considerations.(29)

The final rule designating the critical habitat of an endangered species should be promulgated with the final rule listing the species.(30) However, if it is not possible to determine the critical habitat within that time frame, the Secretary may have one additional year to designate critical habitat.(31) The final designation must includes a description of the designated area and an evaluation of any public or private activities that might destroy or adversely modify the critical habitat.(32)

C. Recovery Plans

In addition to designation of critical habitat, the Secretary must develop and implement recovery plans for the "conservation and survival" of the listed species "unless he finds that such a plan will not promote conservation of the species."(33) The Secretary must establish a priority list for developing recovery plans, giving top priority to those species most likely to benefit from the listing.(34) Recovery plans are technical, scientific documents prepared by public and private sector biologists that identify the specific steps needed to conserve and recover a species. Recovery teams, usually composed of parties from state and federal agencies as well as the private sector, carry out the recovery plans.(35) As of February 1994, four hundred recovery plans had been approved and were in place.(36)

D. The Takings Prohibition

The ESA prohibits the taking of endangered species.(37) The ESA broadly defines "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."(38) Agency regulations further define "harm" to include "significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(39) "Harass" encompasses "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns."(40) The takings prohibitions may also be extended to threatened species if the Secretary finds such protections are needed to conserve the species.(41)

E. Federal Agency Obligations

Federal agencies must ensure that their activities are "not likely to jeopardize the continued existence of any endangered species or threatened species" or adversely affect critical habitat.(42) Before undertaking an action, the agency must ask the Secretary whether any listed species or critical habitat may be found in the proposed action area.(43) If the action area contains any listed species or critical habitat, the acting agency must prepare a biological assessment identifying any listed species likely to be affected by the action.(44) The biological assessment contains a list of species in the action area, a review of biological or botanical material, the results of a field inspection, and sometimes statements of experts in the field.(45)

If the biological assessment reveals that a species is likely to be affected, the agency must formally consult with the Secretary.(46) Following consultation the Secretary must issue a biological opinion detailing whether the proposed agency action would jeopardize the species or critical habitat.(47) If the agency action would put the species in jeopardy of extinction, the biological opinion will contain a listing of "reasonable and prudent alternatives" to the proposed agency action that the Secretary feels would not jeopardize the species while allowing the project to proceed.(48)

Ultimate responsibility for insuring that the action does not jeopardize a listed species lies with the acting agency; it may accept or reject the advice of the consulting agency.(49) The acting agency need not follow the recommendations in the biological opinion as long as the agency takes "alternative, reasonably adequate steps to insure the continued existence" of listed species.(50) However, the agency must use the "best scientific and commercial data available" in whatever decision it ultimately makes;(51) therefore, before straying from the suggestions of the biological opinion, the agency should have some reliable basis for its action.

F. Exemptions

If a proposed agency action will jeopardize a listed species, the agency, license applicant, or governor of the affected state may seek an exemption from the Endangered Species Committee.(52) Endangered Species Committee consists of the Secretaries of Agriculture, Interior, and the Army; the Chair of the Council of Economic Advisors; the Administrators of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration; and a seventh member chosen by the President from the affected state.(53) To grant the exemption, at least five of the seven members must find that no reasonable and prudent alternatives exist; the action's benefits clearly outweigh the benefits of any alternatives; the action is in the public interest; the action is of national or regional significance; and the applicant has not taken steps that foreclose implementation of reasonable and prudent alternatives.(54) The order granting the exemption must establish reasonable mitigation and enhancement measures necessary to minimize risks of extinction.(55)

III. PROBLEMS ASSOCIATED WITH THE ESA

Despite its characterization as an "environmental jewel,"(56) the ESA is not without its shortcomings. Perhaps the most severe shortcoming of the ESA is the lack of sufficient funding needed to carry out species conservation. Other shortcomings include the sluggish listing process, the piecemeal and reactive structure of the statutory provisions, and the ESA's general failure to adequately protect biodiversity.

A major problem with the ESA stems from its lack of financial support. For example, the average cost to list a species is $60,000;(57) yet during the Bush Administration, Congress allotted only $3.5 million per year for the listing process and only $30 million to $40 million for the entire endangered species program.(58) Clearly, Congress did not allocate enough money to carry out the ESA. Lack of a sufficient budget has also contributed to the lack of enforcement.(59)

The ESA is also less effective because of its sluggish listing process. For example, between 1973 and 1993, an average of only twenty-six species per year were listed.(60) In 1992, the General Accounting Office (GAO) reported 105 species as being on the "warranted but precluded" list for over two years.(61) Additionally, despite Congress' mandate to designate critical habitat for listed species at the time of the listing "to the extent prudent and determinable,"(62) a 1992 GAO study showed that critical habitat had been designated for only sixteen percent of the listed species.(63) Of the 651 species examined, 546 had no critical habitat designated or pending.(64)

Some people have criticized the piecemeal and reactive nature of the ESA.(65) The ESA comes into play only when a species nears the brink of extinction, a point when intervention is costly and often ineffective.(66) The ESA then requires drastic, expensive rescue efforts where preventive measures would probably have saved a greater number of species at a lower cost.(67) For example, in his critique of the ESA, David Blockstein compares the ESA to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.(68) Congress designed both statutes as remedial responses to specific disasters.(69) Congress eventually responded to the problem of toxic waste with preventive statutes such as the Resource Conservation and Recovery Act (RCRA)(70) and the Toxic Substances Control Act (TSCA).(71) Just as this experience suggests, it may be cheaper to prevent hazardous waste problems from developing through RCRA and TSCA, so it may be more effective to prevent species from becoming endangered in the first place.

At least one critic has noted several reasons for the failure of the ESA to protect biodiversity.(72) First, in practice, the ESA protects high profile creatures, birds and mammals that are appealing to the public, rather than those species that are most important from the perspective of protecting biodiversity.(73) Second, species recovery plans likewise do not reflect the importance of the species' contributions to biodiversity.(74) Third, the terms "threatened" and "endangered" are not objectively definable, so it is too easy for politics and economics to affect the listing decision.(75) Fourth, many FWS listing decisions are made in closed-door proceedings, without sufficient input from outside scientists.(76) Fifth, the ESA does not sufficiently protect habitat reserves in order to sustain recovered populations.(77) Finally, federal agencies tend to discount the uncertainty in their decisions.(78)

Despite some of the ESA's shortcomings, it should not be criticized for restricting American economic growth. Section 7 of the ESA, which is the focus of many developers' ire, simply has not had much of an impact on economic development activities. While a few notable projects have been temporarily delayed or modified, with a great deal of attendant publicity, almost ninety percent of consultations are disposed of informally.(79) Over ninety percent of the remaining ten percent that required formal consultation resulted in findings of no jeopardy.(80) Of the remaining few where there was a jeopardy finding, reasonable and prudent alternatives allowed the project to continue in a majority of the cases.(81) For example, during the past five years, only eighteen projects were formally terminated, less than one percent of formal consultations.(82) These statistics seem to contradict arguments that the Act is restricting American economic growth.(83) In fact, the numbers give rise to a fear that biological agencies may be bending over backwards to find less harmful alternatives, perhaps putting some species at greater risk than Congress had intended.(84)

IV. CRITIQUE OF THE PROPOSED ESA AMENDMENTS

Four bills introduced in the 103d Congress offer approaches that stand out as viable candidates for ESA reform. The approach offered by Rep. Gerry Studds, Chairman of the House Committee on Merchant Marine and Fisheries, and Rep. John Dingell, Chairman of the House Committee on Energy and Commerce, seek to broaden the scope of the ESA's protections while allowing more flexibility for economic and social concerns. An alternative approach proposed by Rep. Billy Tauzin and Rep. Jack Fields focuses primarily on economic interests and offers several creative ways to inject economic interests into species preservation. Rep. Denny Smith proposed amendments to change the listing process by requiring consideration of economic interests. Finally, Rep. Bill Brewster tries to create exemptions in the ESA for sport hunting within the United States and for trophy hunting overseas.

A. The Studds-Dingell Bill

1. Basic Provisions

The Studds-Dingell bill is premised on the notion that the ESA is not broken.(85) Representatives Studds and Dingen maintain that the ESA has proven to be remarkably successful in reducing the torrent of extinctions this country faced only two short decades ago; however, they recognize that species protection is still critical given the huge backlogs of candidate species awaiting listing and listed species awaiting recovery plans.(86) Accordingly, their bill seeks to strengthen the congressional commitment to species preservation while at the same time fine-tuning the ESA to encourage involvement from the private sector.(87) As discussed below, the Studds-Dingell bill makes some significant changes affecting listing of species, recovery plans, duties of federal agencies, private sector involvement, international species protection, and funding.

a. Listing

The Studds-Dingell bill would change listing in two significant ways. First, the listing decision would include an ecosystem component. The Secretary would be required to give listing priority to those species whose conservation would most likely reduce the need to list other species who inhabit the same ecosystem.(88) Additionally, the bill provides for external peer review in limited situations. The Secretary must grant a request for peer review if a written request details a "substantial scientific basis for questioning" the listing.(89) A peer review panel consists of at least three independent scientists who, through their literature, have demonstrated scientific expertise relevant to the species proposed for listing.(90)

b. Recovery Plans

The Studds-Dingell approach would enhance significantly the recovery process by including both species preservation and economic concerns. First, the Secretary would be required to develop and implement recovery plans for threatened and endangered species based on the "best scientific and commercial data available."(91) Second, the Studds-Dingell bill would require the Secretary to give priority to developing multispecies recovery plans.(92) Multispecies plans would include the protection of candidate species as well as listed species who are dependent upon the same ecosystem.(93) The Studds-Dingell bill would establish deadlines for development of recovery plans.(94) Recovery plans would be completed within eighteen months after listing for species listed after January 1, 1996.(95) This bill also requires that the recovery plans contain measurable, objective criteria which, if followed, would fully recover the species.(96)

The Studds-Dingell recovery process includes economic concerns as well. In implementing the plan, the Secretary must seek to minimize economic and social consequences.(97) For example, whenever possible the Secretary must try to use federal lands for species recovery.(98) A description of the actions undertaken to e adverse economic and social effects must be included in the recovery plan.(99) The draft recovery plan is then subject to a public review and comment period in which the Secretary must consider all information presented by the public.(100).

c. Duties of Federal Agencies

The Studds-Dingell bill would greatly broaden the affirmative duty of federal agencies by requiring the conservation of not only threatened and endangered species, but also candidate species and species proposed for listing.(101) Additionally, federal land managers would be required to provide the Secretary with an inventory of all endangered species, threatened species, candidate species, and species proposed for listing that inhabit the land or waters within their jurisdiction.(102)

d. Private Sector Involvement

In an attempt to induce private sector involvement in species preservation, the Studds-Dingell approach moves beyond regulatory prohibitions by providing incentives to private landowners.(103) The Secretary may provide financial incentives and technical assistance to private landowners who take affirmative actions to conserve candidate species or assist in the recovery of listed species.(104) To qualify, the landowner must voluntarily undertake species conservation measures not already required by law.(105) The Studds-Dingell bill would allocate $25 million per year to implement this program.(106)

e. International Species Protection

The Studds-Dingell Bill would strengthen implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)(107) by expressly authorizing federal agencies to issue appropriate regulations in order to curb illegal trade in endangered species.(108) The bill would also require the Secretary to fully implement the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere(109) by placing permanent U.S. liaisons in member nations and working with member nations to establish a Permanent Office of the Western Convention.(110)

f. Funding

The Studds-Dingell bill would nearly double the amount of appropriations for implementing the ESA. For example, in 1995 alone, the Departments of Interior, Agriculture, and Commerce combined would receive up to $144 million for species preservation.(111) The bill would also set aside $20 million to assist in the development of habitat conservation plans.(112)

2. Critique

The Studds-Dingell bill appears to have the best chance of passing. While this bill shares with the pro-business amendments a provision for external peer review, it contains a number of provisions that would strengthen the ESA. The bill is particularly appealing in light of its proposed doubling of funding levels, incentives to private landowners, and emphasis on ecosystem protection.

Most importantly, the Studds-Dingell bill directly confronts the major concerns surrounding the ESA.(113) The bill addresses the problem of historically low ESA funding by substantially increasing authorized funding. Of course, the actual level of appropriations would remain open to question. The Studds-Dingell bill also attempts to stem the piecemeal and reactive nature of the ESA by requiring federal agency involvement, and encouraging private landowner involvement, in the protection of candidate species and species proposed for listing. By getting agencies and people involved in species protection early on, we can avoid the often draconian measures needed to protect a species on the brink of extinction. Such measures would also help protect biodiversity.

The Studds-Dingell bill is also attractive to business interests. The requirement of an external peer review would ensure that the Secretary's listing decision is based on sound scientific information. Peer review may not be favored by environmentalists because of its potential to lengthen the listing process. However, the Studds-Dingell bill prevents abuses of the peer review system by requiring the person making the request to provide a substantial basis for questioning the scientific basis of the listing decision. The bill also provides another concession to business interests by requiring the Secretary to seek to minimize economic and social impacts. This concession seems like a reasonable fine-tuning of the ESA. It would still make species preservation the paramount objective of the ESA, while allowing the Secretary to mitigate adverse economic effects to local communities affected by the ESA.

B. The Tauzin-Fields Bill

1. Basic Provisions

The bill proposed by Rep. Billy Tauzin and Rep. Jack Fields strongly advocates economic interests. Although they acknowledge that species preservation is a worthwhile goal, Reps. Tauzin and Fields maintain that economic and private property interests must be given more consideration under the ESA.(114) In emphasizing economic interests, the Tauzin-Fields approach contains numerous provisions designed to reduce some of the current protections for listed species, while enhancing consideration of economic factors. Specifically, the Tauzin-Fields bill significantly alters listing decisions and critical habitat designations, recovery plans, protection of species and habitat, and citizen suits. The Tauzin-Fields bill also allows for a modest increase in funding.

a. Listing & Critical Habitat Designations

The Tauzin-Fields bill would affect listing decision and critical habitat designations in two ways. First, the bill would require external peer review for every listing decision and critical habitat designation.(115) The Secretary would be required to allow external peer review of any listing or critical habitat determination upon request by any person.(116) Peer reviewers would consist of three individuals recommended by the National Academy of Sciences.(117) However, unlike the Studds-Dingell Bill, there is no requirement that the person requesting the peer review allege any deficiencies in the scientific basis of the Secretary's decision.

Second, the Tauzin-Fields bill requires that the proposed regulation designating critical habitat include an economic impact statement.(118) The economic impact statement must include a description of the cumulative economic impacts and other relevant impacts of the habitat designation.(119) The Secretary must then submit the economic impact statement to the Bureau of Labor Statistics for review.(120) In its final regulation designating critical habitat, the Secretary must respond "separately and fully" to each of the Bureau's comments.(121)

b. Recovery Plans

The Tauzin-Fields bill requires appointment of a recovery team to develop recovery plans for threatened and endangered species.(122) However, biologists make upon only a small fraction of the team; the recovery team would also consist of economists, land use specialists, and representatives from affected states and local communities.(123) The Secretary must use the team's assessments as a baseline for promulgating a draft recovery plan.(124) The plan must detail any economic or social effects that may be caused by implementation of the recovery plan.(125) The recovery plan must also include alternative strategies for recovering the species, including the use of a captive breeding program.(126) The Tauzin-Fields bill directs the Secretary to utilize captive breeding "to the maximum extent practicable" as a means of preserving species.(127)

c. Reduced Protection of Species and Habitat

The Tauzin-Fields approach reduces species and critical habitat protection in several ways. First, the bill redefines "take" to exclude habitat destruction or harassment unless an endangered species is actually injured.(128) Second, the Tauzin-Fields bill authorizes the Secretary to issue five-year general permits on a "county, State, regional, or nationwide basis for any category of activities" that may affect a listed species."(129) Finally, the bill authorizes the Secretary to enter into Cooperative Management Agreements (CMAs) with any "non-Federal person having authority, control, or ownership" over land affected by listings, proposed listings, candidate species, or critical habitat designations.(130) Once finalized, the CMA would govern the management of the affected person's land, notwithstanding other provisions of the ESA.(131)

d. Citizen Suits

The Tauzin-Fields bill eliminates a citizen's right to bring suit against anyone other than federal agencies, even if private development activities would result in a species going extinct.(132) On the other hand, the bill creates a right of action for a person that sustains an imminent or actual economic injury resulting from a violation of the ESA.(133)

e. Funding

The Tauzin-Fields bill allows for modest increases in the funding authorized for implementing the ESA. In 1995, the Departments of Interior, Agriculture, and Commerce combined would receive approximately $85 million for species preservation.(134) By 1998, funding would be increased to $124 million.(135)

2. Critique

The Tauzin-Fields bill is sure to generate a substantial amount of support because it responds to the concerns of a significant number of people who want economic factors to play a larger role in the endangered species program. However, while this bill makes an attempt to respond to criticisms by some developers and landowners, its passage would exacerbate some of the major problems that currently exist. In particular, the bill's proposals for listing would most likely result in fewer species being listed, the time for listing would be extended, the cost of listing would be increased, and the debate over each listing would become more complex.

While the proposal of external peer review is responsive to the criticism that the ESA does not provide an objective review of listing decisions, the Tauzin-Fields bill may worsen two even greater problems with the ESA. the already slow listing process and the lack of money for listing. The current cost of listing a species is approximately $60,000.(136) Adding an external peer review will only add to that cost to resolve what may be a phantom problem. It makes more sense to focus on demonstrated problems. For example, although the listing process should take only one year, in approximately fifteen percent of the cases the process has taken over two years.(137) Some species, in fact, have become extinct while in the process of being listed.(138) The benefit from the outside peer review does not seem substantial enough to justify lengthening the time it takes to list a species.

Additionally, the Tauzin-Fields proposal to compensate those whose property value is diminished by actions taken under the ESA reflects a narrow view of the concept of property. It ignores the fact that two conflicting property interests arise under the ESA: the well-known interests of the landowner in an unfettered use of his property and that of the public in the wildlife that may reside on his land. It is a long established principle of American law that the landowner does not own the wildlife on his property; wildlife is a public resource to be managed by the state and federal governments in trust for the people.(139) Restrictions under the ESA are designed to keep one property owner rights (the landowners) from destroying another property owner's (the public) rights.(140) Thus, no justification exists for providing compensation to the landowner.(141)

Finally, the bill's proposal to eliminate suits by private citizens against private parties stands in stark contrast to traditional environmental legislation. Virtually all major environmental laws allow for citizen involvement.(142) Such provisions reflect the fact that the agencies do not have sufficient resources to identify every violation of the law. Knowing that all citizens are, in effect, private attorney generals who may provide notice and sue for a violation can only encourage wide scale compliance with the law.

C. The Smith Bill

1. Basic Provisions

In his proposal for the reauthorization of the ESA, Representative Smith appears to be advocating reforms primarily targeted for benefitting the interests of developers and farmers. The Smith bill would amend the listing process to ensure that listings are based on actual threats and also to require that economic factors be taken into account at the earliest possible time. Specifically, the Smith bill would require that the Secretary's decision to list a species be based on the following factors:

(i) The technical practicability of recovering the species;

(ii) The biological significance of the species;

(iii) The quality of available data on the species;

(iv) The direct and indirect costs to public and private sectors, including

public service and employment, which may be imposed by

the application of the protections of [the ESA) to such species;

(v) The impacts on the use and value of non-Federal property which

may result from application of the protections of [the ESA] to such

species;

(vi) The impacts on the environment and other species which may

result from the application of the protection of [the ESA] to such

species;

(vii) The scientific and other benefits which may result from the

application of the protection of [the ESA] to such species.(143)

Like the Tauzin-Fields bill, the Smith bill would also require external peer review.(144) Under this provision, prior to making a listing decision, the Secretary would submit all information and analyses of the species and habitat to a panel of experts who were not recipients of any government grants, nor employed by the Secretary.(145) The Secretary would consider their review in making his decision and would include a response to such a review in the final rule.(146)

The Smith bill would also change the ESA's emergency listing process by changing the time when emergency listing could be sought from whenever there was "a significant risk to the well-being" of the species to "an immediate threat of extinction."(147)

2. Critique

Smith's proposal to change the requirements for a species to be listed to include economic and social factors is really a dramatic change, inconsistent with Congress' initial purpose. The listing process was designed to protect species that were endangered without talking economic and political factors into account.(148) Congress recognized the tremendous importance of preserving biodiversity such that economic development should have to take a back seat in this one instance.(149) Congress did, however, allow a limited exemption process where the risk of extinction might be outweighed by the economic costs of protecting the species.(150) The Smith bill would, in essence, provide a much easier exemption process that would be considered for every species. This provision is an unnecessary step that weakens the ESA in terms of its primary objective: protecting endangered and threatened species.

Additionally, the Smith bill would lengthen the time it takes to list a species. When the focus is on biological criteria, it is easier to gather the data and to circumscribe its scope. However, once we open the door to economic and social arguments, we greatly expand the amount of relevant evidence that will be presented. All of this evidence will need to be considered, thus greatly increasing the time needed to make what are often critical and time-sensitive decisions.

D. The Brewster Bill

1. Basic Provisions

As co-chairman of the House Congressional Sportsmen's Caucus, Representative Brewster seeks to promote what he claims are "traditional and historical rights of hunting and fishing."(151) Not surprisingly, the express purpose of the Brewster bill is to "protect fishing, hunting, and trapping."(152) To meet this purpose, the bill would amend the ESA in three significant ways by requiring preparation of a hunting impact statement, restricting what constitutes a "talking," and limiting the application of the ESA to trophy hunters overseas.

The Brewster Bill would require the Secretary to prepare a hunting impact statement to evaluate the impacts on hunting, trapping, and fishing anytime the Secretary proposed an action under the ESA "which may have a significant effect" on those activities.(153) At a minimum, the Secretary would have to prepare a hunting impact statement before deciding to list a species or designate critical habitat and before determining when a talking has occurred under section 9 of the ESA.(154) The impact statement would then be subject to notice and comment with a requirement that hearings be held in the vicinity of the proposed action.(155)

The bill would also restrict the definition of "talking" to exclude activities of state fish and game agencies "that alter habitat for the benefit of a selected species."(156) Those agencies would not be subject to the ESA takings prohibition unless their habitat-altering activities actually killed or wounded a threatened or endangered species.(157)

Finally, the Brewster bill would limit the effect of the ESA to trophy hunters overseas. The bill would require the Secretary to prepare a hunting impact statement before taking any action under CITES pursuant to section 8A of the ESA.(158) Additionally, the Secretary, in exercising his discretion under CITES, would be required to give "due weight" to "sport hunting."(159)

2. Critique

The Brewster bill appears to be the most myopic of the proposed bills. It simply ignores the concerns of environmental interests and economic interests, and instead, attempts to carve out a safe haven for a single special interest group: sport hunters. As a misnomer, Representative Brewster named the bill the "Common Sense Amendments to the Endangered Species Act."(160) However, the bill appears to be anything but intuitive. It completely ignores major environmental and economic concerns addressed in the other bills. Nonetheless, despite its limited scope, the Brewster bill remains a viable candidate for ESA reforms because of the strong lobbying efforts of sportsmen's groups. For example, the Congressional Sportsmen's Caucus, which Representative Brewster co-chairs, claims a membership of over thirty percent of the 103d Congress, consisting of 103 representatives and thirty-three senators.(161)

V. CONCLUSION

The bills discussed in the article illustrate the broad variety of interests being represented in the debate over reauthorization of the ESA. It is apparent from this debate that whatever bill is finally adopted, its implementation will be carefully monitored. Unfortunately, despite all of the debate this year over reauthorization, it is unlikely that a major revision to the ESA will occur before 1995. While delaying reauthorization may not be desirable for some people, whatever the outcome, interest groups will not be able to complain that their interests were not carefully considered. (1.) 16 U.S.C. [subsections] 1531-1544 (1988). (2.) Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184-85 (1978). (3.) Holly Doremus, Patching the Ark: Improving Legal Protection of Endangered Species, 18 Ecology L. Q. 265 (1991). (4.) Elizabeth Foley, The Tarnishing of an Environmental Jewel: The Endangered Species Act and the Northern Spotted Owl, 8 J. Land Use & Envtl. L. 253 (1992). (5.) See Charles P. Alexander, Gunning for the Greens, Time, Feb. 3, 1992, at 50. (6.) See, e.., Bureau of Nat'l Affairs, Endangered Species: Economic Issues to be |Prevailing Factor' in Battle Over Reauthorization, Hatfield Says, 23 Envtl. L. Rep. (Envtl. L. Inst.) 2080 (1992). (7.) Several treatises and journals provide for a more comprehensive analysis of the ESA. See generally James C. Kilbourne, The Endangered Species Act Under the Microscope: A Closeup Look From a Litigator's Perspective, 21 Envtl. L. 499 (1991); Daniel J. Rohlf, The Endangered Species Act: A Guide to its Protections and Implementation 1 (1989); Oliver A. Houck, The Endangered Species Act and its Implementation by the U.S. Departments of Interior and Commerce, 64 U. Colo. L. Rev. 277 (1993). (8.) ESA [sections] 2(b), 16 U.S.C. [sections] 1531(b). (9.) Id. [sections] 1533(a)-(c). (10.) Id. [sections] 1532(20). (11.) Id. [sections] 1532(6). (12.) ESA [sections] 4(b), 16 U.S.C. [sections] 1533(b). (13.) Id. [sections] 1533(f). (14.) Id. [sections] 1538(a). (15.) Id. [sections] 1536(a)(2). (16.) ESA [sections] 7(e)-(n), 16 U.S.C. [sections] 1536(e)-(n). (17.) Id. [sections] 1533(a). (18.) Id. [subsections] 1532(6), 1533(a). (19.) Id. [subsections] 1532(20), 1533(a). (20.) ESA [sections] 4(e), 16 U.S.C. [sections] 1533(e). Species regulated due to similarity of appearance do not receive the extensive protection of threatened and endangered species. The taking of these similar species is allowed when proper permits are obtained. 50 C.F.R. [sections] 17.52 (1992). (21.) Id. [sections]16 U.S.C. [sections] 1533(a)-(b). (22.) Id. [sections] 1533(b)(3). Because species are listed through the rulemaking process, petitions from interested parties may be submitted under the authority of the Administrative Procedure Act. See 5 U.S.C. [sections] 553(e) (1988). The Secretary must respond to a petition within one year by making one of the following findings: (1) the petition is not warranted, which terminates the process; (2) the petition is warranted, which requires a proposed rule for listing to be published promptly, or (3) the petition is warranted but presently precluded by higher-priority listing proposals. ESA [sections] 4(b)(3)(B), 16 U.S.C. [sections] 1533(b)(3)(B). (23.) Id. [sections] 1533(b)(6). (24.) Id. [sections] 1533(a)(1). (25.) Id. [sections] 1533(b). (26.) ESA [sections] 4(b)(2), 16 U.S.C. [sections] 1533(b)(2). (27.) 50 C.F.R. [sections] 424.12(e) (1993). (28.) ESA [sections] 4(b)92), 16 U.S.C. [sections] 1533(b)(2). (29.) Id. (30.) Id. [sections] 1533(b)(6)(C). (31.) Id. [sections] 1533(b)(6). (32.) ESA [sections] 4(b)(8), 16 U.S.C. [sections] 1533(b)(8). (33.) Id. [sections] 1533(f)(1). (34.) Id. [sections] 1533(h)(4), (f)(1)(A). The ESA places particular emphasis on giving priority to recovery plans for "those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity." Id. (35.) Id. [sections] 1533(f)(2). (36.) Telephone Interview with Dave Harrelson, Division of Endangered Species, U.S. Fish and Wildlife Service (Feb. 22, 1994). (37.) ESA [sections] 9(a)(1)(B), (C); 16 U.S.C. [sections] 1538(a)(1)(B), (C). (38.) Id. [sections] 1632(19). (39.) 50 C.F.R. [sections] 17.3 (1993). The agency interpretation, however, has been invalidated by the Court of Appeals for the District of Columbia in Sweet Home v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1994) and upheld by the Ninth Circuit in Palila v. Hawaii Dep't of Land and Natural Resources, 639 F.2d 495 (9th Cir. 1981); see also Albert Gidazi, The Endangered Species Act: Impact of Section 9 On Private Landowners, infra this volume, 24 Envtl. L. at 419 (1994). (40.) Id. (41.) ESA [sections] 4(d), 16 U.S.C. [sections] 1533(d). (42.) Id. [sections] 1536(a)(2). (43.) Id. [sections] 1536(c). (44.) Id. [sections] 1636(c); 50 C.F.R. [sections] 402.12(d)(1). (45.) 50 C.F.R. [sections] 402.12 (1993). (46.) Id. [sections] 402.12(d)(2). (47.) ESA [sections] 7(b)(3)(A), 16 U.S.C. [sections] 1536(b)(3)(A). (48.) Id. ; 50 C.F.R. [sections] 402.14(h)(3) (1993). (49.) ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1536(a)(2); 50 C.F.R [sections] 402.15(b) (1933). (50.) Tribal Village of Akutan v. Hodel, 859 F.2d 651, 660 (9th Cir. 1988). (51.) ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1636(a)(2). (52.) Id, [sections] 1536(h). (53.) Id. [sections] 1536(e). (54.) Id. [sections] 1536(h)(1)(A). (55.) 50 C.F.R. [sections] 453.03(a)(2) (1993). (56.) Foley, supra note 4, at 253. (57.) Rudy Abramson, Wildlife Act: Shield or Sword, L.A. Times, Dec. 14, 1990, at A1. (58.) Id. (59.) See e.g., Village of False Pass v. Watt, 565 F. Supp. 1123 (D. Alaska 1983), aff'd sub nom. Village of False Pass v. Clark, 733 F.2d 605 (9th Cir. 1984). (60.) Houck, supra note 7, at 285. (61.) Id. at 292; see ESA [sections] 4(b)(3)(B)(iii), 16 U.S.C. [sections] 1533(b)(3)(B)(iii). (62.) EA [sections] 4(a)(3), 16 U.S.C. [sections] 1533(a)(3). (63.) U.S. General Accounting Office, The Endangered Species Act: Types and Number of Implementing Action 29 (1992). (64.) Id. (65.) See e.g., Julie B. Bloch, Preserving Biological Diversity in the United States: 7he Case for Moving to an Ecosystems Approach to Protect the Nation's Biological Wealth, 10 Pace Envtl. L Rev. 175, 201 (1992); John C. Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, supra this volume, 24 Envtl. L. at 501 (1994). (66.) Id. (67.) Id. (68.) 42 U.S.C. [subsections] 9601-75 (1988); David E. Blockstein, Toward a Federal Plan for Biological Diversity, Science & Technology, Summer 1989, at 63-64. (69.) Id. (70.) 42 U.S.C. [subsections] 6901-92k (1988). (71.) 15 U.S.C. [subsections] 2601-71 (1988). (72.) See Daniel J. Rohlf, Six Biological Reasons Why the Endangered Species Act Doesn't Work - and What to do About It, Conservation Biology, Sept. 1991, at 273. (73.) Id. Rohlf argues that the FWS often bases its listing decisions on the political rather than scientific importance of the species. Id. (74.) Id. at 275. Rohlf indicates that the FWS has spent fifty percent of its funding from 1982 through 1986 on twelve species, only six of which were highly threatened. Id. None of the species were considered keystone or indicator species, species central to the ecosystem or indicators of the system's health. Id. (75.) Id. (76.) Rholf, supra note 72, at 276. (77.) Id. at 277-78. (78.) Id. at 278-79. (79.) Id. at 279. (80.) Id. (81.) World Wildlife Fund, For Conserving Listed Species, Talk is Cheaper than We Think: The Consultation Process Under the Endangered Species Act 5 (1992). (82.) Id. at ii. (83.) See Ted Gup, The Stealth Secretary, Time, May 25, 1992, at 57-58. (84.) Houck, supra note 7, at 319. (85.) Letter from Representative Gerry E. Studds to Colleagues (Apr. 28, 1993) (on file with author). (86.) Letter from Representatives John D. Dingell & Gerry E. Studds to Colleagues Feb. 3, 1993) (on file with author). (87.) Id. (88.) H.R. 2043, 103d Cong., 1st Sess. [sections] 3(c) (1993). (89.) Id. [sections] 3(d). (90.) Id. (91.) Id, [sections] 4(a) (92.) Id. (93.) H.R. 2043, 103d Cong., 1st Sess. [sections] 4(a) (1993). (94.) Id. (95.) Id. (96.) Id. (97.) Id, (98.) H.R. 2043, 103d Cong., 1st Sess. [sections] 4(a) (1933). (99.) Id. (100.) Id. (101.) Id. [sections] 6(a). (102.) Id. [sections] 6(b). (103.) Reaffirm the Commitment: Cosponsor H.R. 2043, The Endangered Species Act Amendments of 1993 (Nat'l Wildlife Fed'n, Washington D.C.), May 1993, at 2 [hereinafter National Wildlife Federation). (104.) H.R. 2043, 103d Cong., 1st Sess. [sections] 9(a) (1993). (105.) Id. [sections] 9(b). (106.) Id. [sections] 12. (107.) Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249. (108.) H.R. 2043, 103d Cong., 1st Sess. [sections] 10(b) (1993); National Wildlife Federation, supra note 104, at 2. (109.) Oct. 12, 1940, 56 Stat 1354, T.S. No. 981. (110.) H.R. 2043, 103d Cong., 1st Sess. [sections] 10(a) (1993). (111.) Id. [sections] 12. (112.) Id. (113.) See supra text accompanying notes 54-85. (114.) See Letter from Representatives Billy Tauzin and Jack Fields to Colleagues (Apr. 29, 1993) (on file with author). (115.) H.R. 1490, 103d Cong., 1st Sess. [sections] 101 (1993). (116.) Id. (117.) Id. (118.) H.R. 1490, 103d Cong., 1st Sess. [sections] 105 (1993). (119.) Id. (120.) Id. (121.) Id. (122.) Id. [sections] 201(a). (123.) H.R. 1490, 103d Cong., 1st Sess. [sections] 201(a) (1993). (124.) Id. (125.) Id. (126.) Id. (127.) Id. [sections] 502. (128.) H.R. 1490, 103d Cong., 1st Sess. [sections] 301 (1993); see supra note 39 and accompanying text. (129.) Id. [sections] 304. (130.) Id. [sections] 401. (131.) Id. (132.) Id. [sections] 504; Don't Let the Endangered Species Act Become Extinct (Nat'l Wildlife Fed'n), May 1993, at 2. (133.) H.R. 1490, 103d Cong., 1st Sess. [sections] 504 (1993). (134.) Id. [sections] 505. (135.) Id. (136.) See supra note 58 and accompanying text. The GAO estimates a $36,000,000 price tag for listing 600 species currently identified as candidate species. Stephen Pounds, Endangered Species Act a Candidate for Its Own List, West Palm Beach Post, Nov. 8, 1992, at B7. (137.) Pounds, supra note 137, at B7. (138.) Three such species that might have actually become extinct prior to being listed include the Tecopa pupfish, the Santa Barbara song sparrow, and the Sampson's pearly mussel. General Accounting Office, No. RCED 89-5, Endangered Species: Management Improvements Could Enhance Recovery Program 19 (1988)

Other sources indicate an even higher rate of extinction for species awaiting listing. The Department of the Interior estimates that in twenty years, forty species became extinct while waiting for paperwork on them to be completed. Scott Allen, A Tough Environmental Law May Get Tougher: Endangered Species Act Facing a Rewrite, Boston Globe, Jan. 4, 1993, at E1. (139.) Michael J. Bean, Taking Stock: The Endangered Species Act in the Eye of a Growing Storm, 13 Pub. LAND L. Rev. 77, 81 (1992); see Carol Rose, Given-ness and Gift: Property and the Quest for Environmental Ethics, 24 Envtl. I. 1 (1994). (140.) Id. (141.) But see Albert Gidari, The Endangered Species Act: Impact of Section 9 on Private Landowners, supra note 34; Robert Meltz, Where The Wild Things Are: The Endangered Species Act and Private Property, infra this volume, 24 Envt. L at 369 (1994). (142.) See e.g. Solid Waste Disposal Act [sections] 7002, 42 U.S.C. [sections] 6972 (1988) (citizen suit provision); Clean Water Act [sections] 505, 33 U.S.C. [sections] 1365 (1988) (same). (143.) H.R. 1992, 103d Cong., 2d Sess. [sections] 2(a) (1993). (144.) Id. [sections] 3. (145.) Id. (146.) Id. (147.) Id. [sections] 6. (148.) ESA [sections] 4(a), 16 U.S.C. [sections] 1533(a). (149.) See supra note 55 and accompanying text. (150.) See supra notes 54-56 and accompanying text. (151.) Newsletter of the Congressional Sportsmen's Caucus Foundation, THE Sportsmen's VOICE (congressional Sportsmen's Caucus Found.), July 1993, at 1 [hereinafter Sportsmen's Caucus). (152.) H.R. 2207, 103d Cong., 1st Sess. (1993). (153.) Id. [sections] 2; see also Sportsmen's Caucus, supra note 151, at 2 (describing Brewster bill requirement of "hunting impact analysis"). (154.) H.R. 2207, 103d Cong., 1st Sess. [sections] 2(a) (1993); see ESA [sections] 9(a)(1)(B)-(C), 16 U.S.C. [sections] 1538(1)(1)(B)-(C). (155.) H.R. 2207, 103d Cong., 1st Sess. [sections] 2(a) (1993). (156.) Id. [sections] 3. (157.) Id. (158.) Id.; see ESA [sections] 8(a), 16 U.S.C. [sections] 1539(a). (159.) H.R. 2207, 103d Cong., 1st Sess. [sections] 4 (1993). (160.) Id. [sections] 1. (161.) Sportsmen's Caucus, supra note 151, at 3.

Nancy Kubasek (*) Professor of Legal Studies at Bowling Green State University. Recently, she published an undergraduate textbook entitled Environmental Law. Ms. Kubasek received her J.D. from the University of Toledo College of Law. The authors wish to thank the Endangered Species Coalition for its invaluable assistance in providing information regarding the various bills.

M. Neil Browne (**) Distinguished Professor of Economics at Bowling Green State University. He received his Ph.D in Economics from the University of Texas and his law degree from the University of Toledo College of Law.

Robyn Mohn-Klee (***) Graduate of the Bowling Green State University Environmental Studies Program and a research assistant for Professor Kubasek.