Fifteen Eighty Four

Academic perspectives from Cambridge University Press


Endangered Species Act: Noah’s Ark or The Titanic?

Craig Collins

Toxic Loopholes

In 1973, Congress passed the Endangered Species Act, a program designed to provide for the conservation of plants and animals on the endangered species list.  The law made it illegal to harm any of the listed species and legislated against the degradation of their habitat.  More recently, the government began looking into using the ESA as an avenue of recouping the vast losses caused by the BP oil spill.  As they launch a criminal investigation into whether BP was criminally negligent, the ESA is one of the legal means with which they might be able to subvert the current cap on damages.

While this may be beneficial in the short term, Craig Collins, author of Toxic Loopholes: Failures and Future Prospects for Environmental Law, looks at loopholes in the ESA itself to argue for a fundamental realignment of our approach towards how we legislate environmental protection. In the age-old battle between the environment and the economy, Collins traces global rates of extinction to put our priorities in perspective.


The Endangered Species Act is the equivalent of a tiny bandage on a gaping wound.  When Congress passed the ESA back in 1973, it was responding to intense public pressure to save a growing number of species from extinction.  Groups like Greenpeace, Friends of the Earth and the World Wildlife Fund raised public awareness and sympathy by showcasing the plight of a small group of cute or charismatic creatures—like pandas, bald eagles and blue whales—whose survival was threatened by human encroachment.  This campaign was so effective that the media still portrays the struggle to preserve biodiversity as an altruistic endeavor pressed upon society by tree-hugger environmentalists trying to rescue wildlife from the brink of extinction.

This was a fairly accurate perception back in the 1970s when humans caused about 100 extinctions a year.  At that pace, it seemed reasonable to craft a law that sought to identify and list species for protection one at a time.  But those days are over.  Today, some biologists estimate the extinction rate has soared to 100,000 species a year and climbing!  At this velocity, preserving biodiversity has gone from an altruistic enterprise to a matter of human survival.  We are well past the point of rescuing a few beleaguered creatures; whole ecosystems are under assault by the relentless incursion of human civilization.

Most biologists believe we have instigated the 6th major extinction episode in Earth’s history.  The renowned paleoanthropologist, Richard Leakey, says this 6th extinction crisis:

…means the annihilation of vast numbers of species. It is happening now, and we, the human race, are its cause . . . Every year, between 17,000 and 100,000 species vanish from our planet. For the sake of argument, let’s assume the number is 50,000 a year. Whatever way you look at it, we’re destroying the Earth at a rate comparable with the impact of a giant asteroid slamming into the planet.

Using Leakey’s figures, the global rate of extinction has accelerated about 500 percent since the ESA became law.  The implications of these statistics are staggering. Already, humans consume about 40 percent of the plant energy available for all terrestrial life, and this figure will only grow as our population leaps from 6.5 to 10 billion inside the next half-century.  At this pace, Leakey predicts that half of the Earth’s species will vanish within 100 years.  But this die-off could escalate rapidly if greenhouse gases wreak havoc with the Earth’s climate.

Without nature, we’re toast.  We really need to “get this” before it’s too late.  Disappearing butterfly species and the mysterious collapse of bee colonies around the world threaten all the crops they pollinate.  The massive die-off of North American bats is wiping out a major insect predator that prevents our harvests from becoming bug food.  The warming and acidification of the oceans jeopardizes the survival of corals and the nutritious soup of tiny zooplankton that sustains the marine food chain.

We have to stop thinking of “nature” as something we visit when we go camping or watch on the Discovery channel.  Without it, our supermarkets would be empty.  Nature is the fresh water, sunshine and rich topsoil (teeming with trillions of beneficial microorganisms) that nurture the plants and animals that fill our refrigerators and our bellies.  Nature is the vast blue oceans that regulate our climate, supply most of our oxygen and provide the tons of seafood we consume every day.  Nature purifies our water, pollinates our crops, recycles our wastes and provides us with clothing, medicine and shelter.  We simply can’t do without it.  Preserving biodiversity is essential to our survival.

We cannot expect the Endangered Species Act to save imperiled species outside our borders, but has it reduced the rate of extinction within the United States? There are 1,925 species officially listed as threatened or endangered under the law.  However, these “listed species” are only a small fraction of all the species whose survival is actually imperiled.  The exact size of this fraction is difficult to determine because there are thousands of plants and animals we know little or nothing about.  Estimates of the actual number of species in jeopardy of extinction in the US range from 6,480 to 165,000.  This means that the 1,925 species listed for protection are somewhere between 1 and 30 percent of all US species actually facing extinction.  Therefore, 70 to 99 percent of all imperiled creatures in the US receive no ESA protection whatsoever.

The arduous listing process is one of the ESA’s most onerous defects.  Listing species for protection one-by-one, instead of preserving the integrity of entire ecosystems, is an expensive, rigorous, time consuming ordeal constrained by scientific ignorance, bureaucratic intransigence, political pressure, partisan politics and budgetary shortfalls.  Species designated as “candidates for listing” wait an average of 20 years to get listed.  Meanwhile, many go extinct.

But even species lucky enough to be listed have a slim chance of survival.  Of the 1,925 species protected by the ESA, only 19 have recovered enough to make it off the list.  This is a 1 percent recovery rate!  Only 10 percent of all listed species are considered improving, 30 percent are considered stable and 60 percent continue to slip toward extinction.  This abysmal record is the result of several legal loopholes.

For example, the ESA requires every listed species to be designated a critical habitat and a recovery plan.  But this seldom happens because the Interior Department and the other agencies in charge of enforcement are compromised by their incestuous involvement with the powerful mining, timber, oil and gas interests who oppose any restrictions on their exploitation of public lands.  Agency officials abuse minor exclusions in the law to avoid critical habitat requirements altogether or limit them so severely that species cannot possibly recover.  Consequently, over 80 percent of all listed species have no critical habitat protection and 40 percent have no recovery plan.

The overriding weakness in the Endangered Species Act is that no legal barrier can possibly halt the relentless juggernaut of economic growth at the heart of our extinction crisis.  Human activities like urban sprawl, deforestation, road and dam building, industrial agriculture, grazing, mining, oil drilling, over-fishing, marine pollution, and poaching, harvesting and hunting wild species for food, sport and profit all continue to decimate the web of life our survival depends on.  And now, climate disruption is magnifying the potential for widespread extinctions.

The ESA’s inability to preserve biodiversity and slow the pace of extinction simply reflects the fact that we are caught up in a malignant economic system.  An economic machine so driven by the demands of growth and profit that it must devour, exploit and expand at the expense of the living biosphere that sustains us.  Reversing this unfolding calamity is beyond the scope of any law.  It requires the transformation of our entire economic system to bring it into balance with the planet.

About The Author

Craig Collins

Craig Collins, holds a Ph.D. from California State University East Bay in Environmental Law & Policy. He is the author of Toxic Loopholes: Failures and Future Prospects for Environ...

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