Strength in Numbers: Setting Quantitative Criteria for Listing Species Under the Endangered Species Act

I. INTRODUCTION II. AN OVERVIEW OF THE ESA AND LISTING SPECIES A. In the Beginning: The Evolution of U.S. Endangered Species Legislation and Listing Priorities B. The ESA Listing Process C. Lock, Stock, and Barrel: The Benefits of Getting Past the Velvet Rope III. DOOMED FROM THE START" HISTORY OF A FLAWED AND DAMAGED LISTING SYSTEM A. A Poorly Articulated Directive: Ambiguity and Excessive Discretion 1. This "Best" is Better Than What, Exactly? 2. How Endangered is Endangered? How Threatened is Threatened? 3. That's a Lot of Discretion B. The Fallibilities of Science in Relation to the ESA 1. Science Cannot Determine Policy 2. Nothing is Certain: Deal With It C. Turning Lemons into Lemons: The Sloppy Application of Poor Instructions D. Plenty of Blame to Go Around: The Intense Political Pressures on the Listing Process IV. THERE IS HOPE: SETTING QUANTITATIVE CRITERIA LEADS TO GOOD POLICY, GOOD SCIENCE, AND LESS CONFUSION A. Setting Quantitative Criteria Will Improve and Legitimize the Listing Process B. Quantitative Criteria IS the Best Available Science C. The Scientist-Developed IUCN Listing Criteria: America's Next Top Model? V. WHICH BRANCH MIGHT HAVE THE MOST SWAY? A. The Regulatory Approach B. Statutory Amendment by Congress C. Pressure from the Courts VI. CONCLUSION I INTRODUCTION For the animal shall not be measured by man. In a world older and more complete than ours, they move, finished and complete, gifted with extensions of the senses we have lost or never attained, living by voices we shall never hear. They are not brethren, they are not underlings, they are other nations caught with ours in the net of life and time, fellow prisoners of the splendour and travail of the earth. (1) Most Americans spend the majority of our time in artificial environments of our own making. We live indoors, in a sealed-off land of bug spray, temperature control, and an array of antibacterial products for our hands, dishes, and countertops. We keep our plants alive by providing all of their daily care and allowing them to live in an insect-free environment, then we climb into bed and cuddle up to our furry four-legged companions. We have developed a widely-shared informal hierarchy of life-forms. However, these choices come at our peril because, as comfortable as we have become in our cozy indoor retreats, we still inhabit a larger world whose ability to support life is dependent upon the maintenance of species we may not regard so highly. We depend upon this natural world both for our aesthetic and spiritual enrichment and for our very survival. Our personal preferences are not helpful in selecting species for preservation as they do not correlate with their value to biodiversity. That is why a more objective system is needed, as it forces us to set aside our personal preferences. That is why the system we do have was designed to protect all species equally. In the real world, ecosystems depend upon biodiversity that does not rank species according to how lovable they are to humans. (2) Congress expressly recognized the disparity between human valuation of species and nature's diverse needs and stated its intent to protect species equally. (3) Just a few years later, in 1973, Congress passed the Endangered Species Act (ESA), (4) intended "to halt and reverse the trend toward species extinction, whatever the cost." (5) This effort came at a crucial time, as species now go extinct at a rate of approximately one-hundred per day, a rate which continues to rise (6) despite already "far exceed[ing] any the world has experienced in the last 65 million years." (7) Despite Congress' attempt to give us the tools to slow down this rapid loss of biodiversity, we have frittered away that opportunity by bickering over which species we like best and our corresponding willingness to make sacrifices to protect them. …