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The Endangered Species Act (Stanford Environmental Law Society Handbook)

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The Endangered Species Act by the Stanford Environmental Law Society is an excellent overview of the law itself and relevant case law up to its publication date in 2001. Though at times wordy, and who doesn't know a lawyer who loves their own words, it does bring the important aspects of the law and its interpretation forward in clear language, for the most part avoiding legal jargon. Contrast each chapter with the full text of the law found in the appendix and feel the rush of clarity. The authors make the case that the ESA is something of legal marvel in the clarity and intent of its language, but reading the actual law is still akin to banging one's head against the wall, and the illuminating chapters of book are how good it feels when you stop.

The introduction sets the stage for ESA by discussing extinction and the anthropogenic causes of the current mass extinction. Extinction is a natural process, but with the exception of several large events, it occurs a relatively low background rate. Since man has entered the picture, the rate of extinction has increased by factors of magnitude, with the impacts coming from overhunting, habitat destruction or alteration (including pollution and climate change), and introduction of non-native species. Much of the damage has occurred within the last few centuries as human population has exploded and technology made possible large scale hunting and habitat destruction while becoming a vector for long distance dispersal by accident or purpose.It goes on to make the case for preserving biodiversity on economic and ecological grounds. The goal of the Endangered Species Act is to minimize the impacts of man on our environment with particular regard to the great loss of biodiversity that is happening under out watch.

Chapter One is a brief review of major environmental laws in the United States of America leading up to the 1973 ESA, and some of the subsequent amendments (1978, 1982, 1988), controversy and case law that has ruled its interpretation. The remaining chapters (2-7) deal with particular sections of the ESA (sections 4, 7, 9, 10, and 11) with the exception of Chapter Six, which discusses the impacts of international law and protections for species not native to our lands - a full third of federally listed species are endangered in their native countries, and are protected under the auspices of the ESA against trade or harm in ours. Each chapter covers the basics of the section under discussion, and illustrates challenges, controversies, and interpretation of the law by the judicial system.

Chapter Two(dealing with Section 4 of the Act) details the requirements for listing a species, designating critical habitat, and making a recovery plan. It describes the kind of taxonomic entities that can be considered (excluding fungi and bacteria for example, but ranging from "distinct populations" for vertebrates to subspecies and species of all other life), the evidence that can be considered for listing, initiation of the process (agency-led or citizen petitions) for listing, requirements for public notice, review, and time limits for the process of listing, the definition and process for designating critical habitats and recovery plans. Chapter Three (section 7 of the Act) concerns the procedural requirements for federal agencies, which are specifically proscribed under the provisions of the Act from harming a listed species either by direct action or regulatory decision. It discusses standards for execution, and the exemption process for federal agencies. Chapter Four goes into the prohibition against the "taking" of any member of a listed species(Section 9) by any "person" (defined broadly in the ESA as any individual, agency, or commercial entity). A take is defined as any action "to harass, harm, pursue, hunt, shoot, wound, kill, capture, or collect, or attempt to engage in any such conduct." This is perhaps the most controversial portion of the law, but it is ameliorated by processes illuminated under Section 10. Chapter Five discusses the provisions under Section 10 of the Act for allowing "incidental takes" by non-federal agencies, other public entities, and private individuals or corporate interests. This topic is examined in detail, as much of the litigation over the ESA has focused on the issue of the taking of listed species. Interestingly, listed plants on non-federal lands do not enjoy the same protections as animals under the Act UNLESS there is some federal interaction involved (e.g., federal loans or regulatory permit, such as a permit under Section 404 of the Clean Water Act by the Army Corps of Engineers, which then falls under the considerations of Section 7). Incidental take permits require both mitigation and a habitat conservation plan for the species. Chapter Seven covers the aspects required for citizen action under the Act, that is, bringing suit for violations of the Act.

A full bibliography is included, along with suggestions for further reading chapter by chapter. Although the book itself may lack the buckle and swash of an adventure epic, it is nonetheless a very good primer for understanding the ESA. It is an excellent, low-cost textbook, suitable for literate persons of any age. It may suffer a bit from age at this time (published in 2001, which means a decade of further legal decisioning has gone on, it now being 2011), but the basics of the legal framework have not changed, largely due to clear and explicit language incorporated by Congress in its creation. The tone is generally supportive of the reasons for and actions under the act, while having certain amount of detached objectivity, although anyone who is hostile to the Act or in general strongly anti-environmental will probably find it still too queasily liberal for their tastes. There is much hyperbole and exaggeration in the public realm on all sides of the endangered species debate, but this guide is fairly objective and restricts itself to the law itself and judicial decisions concerning challenges and changes to the law. I would encourage all to read this for understanding the legal underpinnings of the ESA, and look elsewhere for commentary, but to question strongly those alternative sources of information and discern between what is opinion, and what is fact.