The Butterfly Problem

Because the government doesn't have the means to preserve endangered species, let alone a coherent plan its decisions are haphazard—and private landowners often find themselves paying for the preservation of species they've never heard of

endangered species act is this country's response to that choice. It strongly favors preserving biodiversity—more strongly, conservationists say, than any other environmental law in the world. "Quite frankly," Murphy says, "it is the best weapon we have." It didn't start out that way. Indeed, few grasped the act's implications until its first test before the Supreme Court. On one side was the Tellico Dam, a Tennessee Valley Authority project frequently described as a boondoggle. On the other was the snail darter, a three-inch snail-eating fish that was first observed in 1973, six years after Tellico began construction and shortly before the act became law. Handed this unexpected weapon, Tellico's opponents petitioned the Fish and Wildlife Service to list the fish on an emergency basis in 1975. The amazed TVA complained that Tellico's environmental-impact statement had passed two federal court reviews, that $50 million in taxpayers' money had already been spent, that the dam would provide flood control, hydroelectric power, and recreational facilities (a lake). It claimed that the snail darter was found elsewhere, and thus was not endangered. Nonetheless the service listed the darter, and a civil action ensued, based on the Endangered Species Act. By 1978 the suit had wound its way up the legal trellis to the Supreme Court.

Attorney General Griffin Bell personally argued the case, attempting to demonstrate the snail darter's insignificance by displaying one to the justices. The tactic failed. In June of 1978 the Court ruled that "the plain intent of Congress" was to stop extinction no matter what the cost. The language of the act, the Court said, "shows clearly that Congress viewed the value of endangered species as 'incalculable'"—in practical terms, infinite. Obviously, a $100 million dam was worth less than an infinitely valuable fish. Simple logic dictated halting Tellico.

The decision had a "bombshell impact on Capitol Hill," says Donald Barry, of the World Wildlife Fund, who was then a staff attorney in the solicitor's office of the Department of the Interior. Even some of the law's most ardent congressional supporters were alarmed by its inflexibility, although that inflexibility, of course, endeared the act to environmentalists. Tellico's principal sponsor, Senate minority leader Howard H. Baker, Jr., of Tennessee, set out to change the act. The ensuing political maneuvering led to the establishment of a small escape hatch: a committee that could be convened when all other attempts had failed to resolve conflicts between protecting a species and building a project requiring federal funds or permits. Because it included several Cabinet members, the committee could not be summoned every time an endangered species was threatened. On the other hand, it could authorize the extinction of a species, as long as the benefits of the project strongly outweighed the benefits of actions aimed at saving the species. In its first meeting the "God Committee," as it was soon nicknamed, unanimously found in favor of the snail darter, though mostly because the group regarded Tellico as a waste of money.

Baker rammed through legislation exempting Tellico from the Endangered Species Act. The dam was built and, as predicted, proved to be less than an economic dynamo; a few years later more snail darters turned up in other rivers nearby. (The fish was downgraded to "threatened" in 1984.) But the whole affair set a pattern that has continued to the present. People who care little about the endangered species frequently invoke them as an excuse to stop projects; the science used to justify the actions of one side or another is often rushed, as it was for Tellico, and can be so incomplete that it verges on the fraudulent; and, most important, the law still insists that species must be saved no matter what the cost.

For the Fish and Wildlife Service, this set of circumstances has turned the Endangered Species Act into a bureaucratic horror. The agency, formerly a haven for guys who liked to work outdoors, is now a hot spot of sophisticated partisan arm-twisting. Hundreds of petitions flow in every year, and the service must evaluate them all, with litigious interest groups scrutinizing every move. Consequently, listing moves at a crawl. As of November, the most recent date for which official figures are available, 668 domestic species, more than half of which are plants and invertebrates, clung to their places on the list. Another 100 had been accepted for the list, but the service had not yet published a final notice about them in the Federal Register, the last step in listing. Some 500 species resided in a curious state of limbo called Category I: the Fish and Wildlife Service agreed that they merited listing but had not got around to accepting them officially. A further 3,000 occupied a second limbo, Category II: the service thought they might merit listing but had not yet investigated fully. At the current rate of progress, according to a 1990 report by the Department of the Interior's own Office of Inspector General, clearing today's backlog may take up to forty-eight years, during which time many more species will be menaced. Already, several species have vanished while the government was trying to decide whether they were endangered.

After listing a species, the Fish and Wildlife Service puts together a "recovery plan" for it. And here too, the agency is behind, though the reasons are as much budgetary as political. It has approved 364 recovery plans, covering about half the listed species, but few have been implemented. In its 1990 report the Office of Inspector General estimated the recovery cost for all species currently listed or expected to be at $4.6 billion, spread over ten years. The service's 1990 budget for recovering species was $10.6 million. Other agencies pitch in, but even so, in 1990 the total state and federal budget for all aspects of endangered species—listing, research, land acquisition, and so on—was just $102 million, less than a fourth of the annual amount needed for recovery alone.

In reading these figures, one conclusion is inescapable: more species- many more—will be driven, like the Tecopa pupfish, to extinction. Few species are unsavable today; concerted human effort can save most of them. But we are unlikely to have the means to save them all. In this deficit-ridden age Fish and Wildlife Service budgets will not climb to the altitude necessary to save the few hundred species on the list, let alone the thousands upon thousands of unlisted species that biologists regard as endangered. Like cost-conscious Noahs, Americans will pick which creatures to bring with them and which to leave behind. The choice is inescapable—but the Endangered Species Act, in its insistence that we save every species, implicitly rejects this responsibility. As a result, the government is left with little guidance. It moves almost at random, with dismaying consequences.

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