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Can Species Be Saved Without the Endangered Species Act?

The Endangered Species Act is on track to become as threatened as the wildlife it helps to protect.

When it comes to the Endangered Species Act, no group of legislators is considered more hostile than the previous two years' 114th Congress. America's newest batch of congressional members is on track to assume that title and make the law weaker than ever, but that doesn't mean endangered species are necessarily doomed. While the Endangered Species Act has been instrumental to many wildlife recoveries, diverse groups of people across the country on federal, state, and local levels have fought to enforce it, and they're still here.

Before their session was over, the 114th Congress launched 135 legislative attacks on the Endangered Species Act, accounting for 45 percent of all bills aimed at the Act since 1996—a record-breaking achievement, according to the Center for Biological Diversity who keeps track of policies targeted at the historic environmental law.

But now, with Republicans controlling the House and Senate, and a Cabinet whose environmental record is decidedly shoddy, the next few years could effectively gut the Endangered Species Act. "It's been mostly a death by a thousand cuts," Sarah Greenberger, Vice President of Conservation at the National Audubon Society, said.

A handful of these bills and amendments have already been introduced since the start of the year. One of them, H.R. 424, would strip gray wolves of protections endowed by the Endangered Species Act in in Minnesota, Wisconsin, Michigan, and Wyoming. "It has never been used for the rehabilitation of species. It's been used for control of the land," House Natural Resources Committee Chairman Rob Bishop told ABC News. Bishop added that he "would love to invalidate" the law.

An endangered Hawaiian monk seal. Image: Flickr/Pete Markham

The 44-year-old Endangered Species Act is weathered to assaults, and for the most part, its core elements are still intact. Enacted on December 28, 1973 by President Richard Nixon, the Act joined other monumental laws like the Lacey Act of 1900, and the Migratory Bird Treaty Act of 1918, each of which set valuable precedents for at-risk species.

Here's how it works: Determinations are made for either "threatened" or "endangered" species (including plants), based on a set of present or imminent threats. These might include population depletion, range modification, overuse, or even climate change. In all cases, decisions are set forth "solely on the basis of the best scientific and commercial data available." Actual listings can take years, as deliberation timelines range from 90 days to 12 months. The process can include public comment periods, work plans, and often opposition from those who feel a listing would undermine their interests.

The Endangered Species Act is put to use by the US Fish and Wildlife Service and the National Oceanic and Atmospheric Administration, depending on the animal. Some of the protections the Endangered Species Act aims to enforce are the "taking" (essentially, hunting, collecting, or tampering with) of listed species, the destruction or overutilization of their habitat, and the prevention of federal activity that would harm their existence.

The law isn't impermeable though, and a particular combination of factors have environmental groups concerned about the actions of this Congress. For starters, those who fought the Endangered Species Act in previous sessions will likely be emboldened by President Donald Trump, who hasn't hesitated to express his discontent with the law.

"The US Fish and Wildlife Service abuses [the] Endangered Species Act to restrict oil and gas exploration," Trump said at a petroleum conference in Bismarck, North Dakota last year.

Because the Endangered Species Act exclusively relies on sound science to inform listing decisions, Trump's antagonistic attitude toward the scientific community is especially troubling. On the campaign trail, he vowed to cut funding for research institutions, and implement a government hiring freeze which would impact public sector scientists. His remarks on climate change, along with those of his Cabinet members, also show a habitual rejection of facts and scientific consensus.

"Once [scientists have] identified potential conservation problems we can offer suggestions for changes that will help alleviate them. Many institutions, agencies, and individuals are eager to protect and conserve species without the Endangered Species Act and scientific research can help guide them," David Steen, a conservation biologist and assistant research professor at Auburn University, said.

The individual records of Trump's Cabinet picks have largely opposed federal environmental policies, instead preferring to delegate power to individual states. The President's pick to lead the Department of the Interior, Montana Congressman Ryan Zinke, once supported a bill that "would overturn protections" for certain species protected under the Endangered Species Act, according to the National Resources Defense Council.

This type of thinking, when applied to the Act, is largely believed to hinder the conservation of endangered species. While state cooperation is encouraged, some environmentalists worry that without a national framework, endangered species plans could fall victim to industry influence, such as oil and gas interests.

"One bill would delist any species that did not cross state lines, and effectively transfer management of that species over to the state. If you take away federal protections and give them to hostile states, that's end of the species," Jamie Pang, an endangered species policy specialist at the Center for Biological Diversity, said.

"Members aren't looking for a comprehensive approach," Greenberger said. In lieu of this, they're "taking away the authority to protect species through the Endangered Species Act, and replacing it with a lot of discretionary actions of things people can or cannot do."

But is the Endangered Species Act the end-all be-all of conservation legislation?

Some states, like California, have robust endangered species acts of their own. The California Endangered Species Act is considered to be the best example of this, sharing similar statues with its federal counterpart. The California condor, a species once teetering on the edge of extinction, was helped in part by state legislation that made it illegal to kill them, and placed additional regulations on toxic lead ammunition and the pesticide DDT.

Yet, in practice, state endangered species acts can fail for the same reason they can succeed. Migratory wildlife that move across state borders can make local conservation efforts more difficult and less impactful.

"One of the biggest potential drawbacks to states managing the protection of rare species is a focus on populations within arbitrary political boundaries," Steen said. "For many wide-ranging species, state-specific management plans may lack the cohesive vision needed to protect and restore species and ecological processes across large spatial scales. This lack of cohesion between states may be particularly profound given that their politics and priorities are likely to differ."

Some environmentalists will tell you, however, that recent efforts to protect the sage grouse—a plump little bird whose sagebrush habitat is also prized by developers and ranchers—offer some proof that listing a species isn't the only way to conserve it.

Greater sage grouse. Image: US Fish and Wildlife Service/Jeannie Stafford

The sage grouse once roamed the American West in millions, but energy development and agriculture reduced its total habitat area by half. Today, between 200,000 and 400,000 birds span 11 states, across federal, state, and private land.

In 2010, when the US Fish and Wildlife Service declared the sage grouse warranted protection under the Endangered Species Act, both environmentalists and private landowners alike were galvanized to prevent the bird from being listed, albeit for different reasons. The issue was, and still is complicated. But an official listing would have stifled human activities like farming and ranching. So with this economic threat looming over their heads, many local individuals were additionally motivated to conserve sage grouse habitat on their properties.

Approximately 4.4 million acres of sagebrush habitat were restored by more than 1,100 ranchers by the end of 2014, thanks to project called the Sage Grouse Initiative. Last year, the Bureau of Land Management, an agency in the Department of the Interior that manages public lands, announced plans to conserve 35 million acres of federal land for sage grouse.

"There are legal protections, and there are conservation actions. People committed to making conservation actions happen. A lot of efforts were already going, and people are still continuing their work," Thad Heater, National Coordinator of the Sage Grouse Initiative, said.

A prevailing theory among environmental groups is that none of this would have happened were it not for the Endangered Species Act. The mere possibility of a listing was the necessary ingredient for grassroots action.

"Would that have been possible without the Endangered Species Act? I don't think so. Without that real concern and desire to avoid listing, I don't think people would have come to table with the same seriousness," Greenberger echoed.

"Some people don't believe [the sage grouse protections] are strong enough," Pang said.

Still, there's some value in imagining the predicament species would be in without the Endangered Species Act. Facing poor odds, perhaps local regulations can pick up where federal ones left off. States that prioritize wildlife might even strengthen their own laws to protect them.

As with many issues, Trump's ultimate influence remains to be seen. Congress, however, is much more likely to destroy the law as we know it, making the Endangered Species Act as imperiled as the very creatures it's helped to conserve. This would undoubtedly be tragic, but we shouldn't forget that behind the Endangered Species Act are people determined to enforce it, and as long as they're still around, there's no reason to give up hope.