Pimm, Stuart L.

English

Duke Law Scholarship Repository

05 Pimm_Macros Run (Do Not Delete) 5/5/2024 11:49 AM 149 THE PURPOSES OF THE ACT STUART L. PIMM* “The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” Concerning the Endangered Species Act, I have testified at two Senate and two House hearings, made numerous congressional visits, co-authored Amicus Curiae Briefs, written scientific papers, and done fieldwork on endangered species, spanning much of my career. Yet, so much has been published on the Endangered Species Act that a sensible question is whether one can contribute more to the discussion. That I write this piece means I believe the answer is “yes,” but I will not hide my frustration that my conclusion is little more than to affirm that the Act’s statement of purpose is precisely correct.  I will do so by recounting case histories. One, the snail darter, I chose because I knew several key players, and the others because I played direct parts. A DESIGNER FISH — AND TVA V. HILL The Cherokee Golf and Country Club in Knoxville, Tennessee, sits on a high bluff, overlooking what used to be the Tennessee River, with distant views of the Smoky Mountains. The past tense is necessary because from where the French Broad and Holston Rivers join, the entire length is a series of lakes formed by dams until the water finally enters the Ohio River. The Tennessee Valley Authority dammed the Tennessee and all but one of the major rivers coming off the Appalachian Mountains in a programme of public works started in 1933. It brought electricity and economic development to a region once among the poorest in the country. In the mid-1970s, some Club members were indignant because a final river was about to be dammed: the Little Tennessee. The Club’s members enjoyed its fishing and scenery and honoured the American Indian burial sites along its valley. 05 Pimm_Macros Run (Do Not Delete) 5/5/2024  11:49 AM 150 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXIV:2 ECOSYSTEMS ALONE DID NOT PROVIDE PROTECTION.  “What would happen if an endangered species lived in the River?” they asked.1 The leading expert on the state’s fish species, and subsequently the author of the lavishly illustrated Fishes of Tennessee,2 was David Etnier, a professor at the nearby University of Tennessee. Those who knew him suggested he might be persuaded to visit the river with his graduate students and seine it. The suggested honorarium was one six-pack of a particularly cheap beer, a payment I confirmed with him years later (figure 1).   Copyright © 2024 Stuart Pimm.  * Stuart Pimm holds Doris Duke Chair of Conservation, Nicholas School of the Environment, Duke University, Durham NC 27713. He is president of Saving Nature, a non-profit that restores biodiversity hotspots.  His international honours include the Academy of Arts and Sciences (2006), the John and Alice Tyler Prize for Environmental Achievement (2010) and the International Cosmos Prize, (2019).  1. Conversation with Club Members, by Raisa Killeffer & Fred Killeffer (1973).  2. See DAVID A. ETNIER & WAYNE C. STARNES, THE FISHES OF TENNESSEE 587–89 (1993) (detailing the discovery of the snail darter in the Tennessee River). The Author (left), and David Etnier were colleagues at the University of Tennessee. 05 Pimm_Macros Run (Do Not Delete) 5/5/2024  11:49 AM Spring 2024] THE PURPOSES OF THE ACT 151 They went, found the snail darter, and it was added promptly to the list of Federally Endangered species in 1975, with Etnier describing it scientifically in 1976. The subsequent history has been told in detail, including the Supreme Court case of TVA v. Hill,3 the Court’s first interpretation of the Act. The dam was built, and the river flooded, yet the species survived. Nonetheless, essential aspects of the story are poorly known.  First, what were the chances that Etnier would find a narrowly endemic species of fish that damming a river would exterminate? An almost near certainty, for the southern Appalachians are an internationally recognised biodiversity hotspot.4 That means the region has concentrations of endemic fish, amphibians, and many other species. Etnier predicted that the Little Tennessee would be home to ten endangered species.  TVA was wreaking ecosystem-wide destruction, and the Act arrived just in time. Second, the dam itself created scandals. TVA touted economic benefits, which independent economists challenged. TVA promised a town of 50,000 people would grow up around it.5 The dam was built eventually, but no such town exists. The dam was a massive squandering of taxpayer money. A select few benefitted. The flooding inundated portions of family farms, all of which TVA condemned, even if only small fractions would be destroyed. Marshals eventually evicted some owners. The land was later sold in sweetheart deals, greatly enhanced in value as lakefront property.6  TVA DID NOT BUILD ANOTHER DAM. These broader issues are prescient. There were regional issues beyond the single fish in one river. There are places with many species at risk, and it behooves us to consider such places and the human impact upon them. The river valley itself was important — for   3. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 173 (1978) (concluding that the Endangered Species Act “admits of no exception” to the protection of an endangered species).  4. See Clinton N. Jenkins et al., US Protected Lands Mismatch Biodiversity Priorities, 112 PROC. NAT’L. ACAD. SCI. 5081, 5082 (2015) (demonstrating that the southern Appalachians are abundant in biodiversity, especially as it relates to amphibians).  5. WILLIAM BRUCE WHEELER & MICHAEL J. MCDONALD, TVA AND THE TELLICO DAM, 1936–1979: A BUREAUCRATIC CRISIS IN POST-INDUSTRIAL AMERICA 169 (1986).  6. See ZYGMUNT J. B. PLATER, THE SNAIL DARTER AND THE DAM: HOW PORK-BARREL POLITICS ENDANGERED A LITTLE FISH AND KILLED A BIG RIVER 2–4 (2013) (noting that the Tellico project was slated to result in “significant beneficial shifts in land use . . . to industrial, commercial, residential, and recreational development use”). 05 Pimm_Macros Run (Do Not Delete) 5/5/2024  11:49 AM 152 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXIV:2 American Indian cultures, for family farms, for fishing, and as a lovely place. The proposed dam offended people across the full spectrum of political affiliations.  The economic issues were multifaceted. The dam failed spectacularly even in the limited terms TVA set for it. TVA brutalized landowners because it couldn’t offer sufficient financial incentives for them to move willingly. Land prices alone are insufficient to capture our values on nature, place, and heritage. Conventional economics is often woefully incomplete.  In my experiences of talking about protecting endangered species, the costs, but not the benefits, are prominent. In some attempts to amend the ESA, only costs have been mentioned. In 1995, I met with Rep. Jimmy Duncan7 a day before hearings on a bill to amend the ESA he had co-signed. I told him I found the bill profoundly flawed and was treated to, what seemed to me, to be a well-rehearsed ten-minute speech about how environmental legislation was hurting the people of Tennessee’s Second District. When I noticed his coffee table was covered with books celebrating the Smoky Mountains and other lovely East Tennessee landscapes and I mentioned how many millions visited—and spent money in—his district, the conversation changed dramatically.  In any event, this bill did not come to the floor of the House for a vote.  OWLS, FORESTS, AND SWEET HOME V. BABBITT In the first installment of Harry Potter, Harry’s guardians take him to a small, remote, rain-swept British island to avoid the unwanted attention of persistent owls. These islands have other connections to owls. Year after year, birdwatchers visit them, hoping to find unusual birds that have blown off course by rough weather. They count common species in their absence, especially how many individuals nest each year. Assembling data collected over decades, Jared Diamond and I calculated how long populations of different sizes last before they become locally extinct.8 Small populations survive only a few years and   7. See Representative John J. Duncan, Jr., CONGRESS.GOV, https://www.congress.gov/member/john-duncan/D000533 (last visited Feb. 7, 2024) (detailing Representative Duncan’s bill activity).  8. See Stuart L. Pimm et al., On the Risk of Extinction, 132 AM. NATURALIST 757, 758 (1988) [hereinafter Risk of Extinction] (concluding that population size dramatically impacted the extinction rate of British island birds); Stuart L. Pimm et al., Times to Extinction For Small Populations of Large Birds, 90 PROC. NAT’L. ACAD. SCI. 10871, 10873 (1993) [hereinafter Times to Extinction] (finding that, in cases of populations of birds like hawks, owls, and crows, “[t]imes 05 Pimm_Macros Run (Do Not Delete) 5/5/2024  11:49 AM Spring 2024] THE PURPOSES OF THE ACT 153 would likely need several years of establishment before the species could recolonize the island. The results matched what mathematical models predicted.9 From 1993 to 1996, Jack Ward Thomas was the head of the Forest Service.10 I picked up my phone to hear in his typically blunt Texan: “This is Jack Ward Thomas; how long will a small population of owls persist in a small forest fragment?” He faced a set of forest management plans, the extremes of which had forest sizes that held one to three pairs of owls versus fifteen to twenty. Based on our studies of bird species on small islands, I told him that the former option would lead to local extinction within a few years. The larger populations would persist for decades and serve as potential sources for other small populations that had disappeared from the area. The final decision on forest management for northern spotted owls reflected these ecological realities.  Jack was celebrated because of his embrace of ecosystem management. He understood the need to take a broad perspective. He also understood that spotted owls were just one of several hundred species that depended on old-growth forests. As with the snail darter, this wasn’t just about a single species.  The importance of the ecosystem was challenged by the case that the owl brought to the Supreme Court: Sweet Home v. Babbitt.11 The Sweet Home Chapter of Communities for a Great Oregon comprised various landowners, logging companies, and timber workers. They contended that Babbitt, the Secretary of the Interior, did not have the authority to define “harm” under the ESA in such a broad manner as to include the destruction of the species’ habitat. Moreover, they claimed economic harm as a consequence of such a broad definition. In an Amicus Curiae brief, colleagues and I argued the loss and damage to an ecosystem was by far the most critical factor causing species to be threatened.12 The intent of the Act — see above — encapsulated that idea. Our view prevailed.  The broader issues mirror the snail darter. Old-growth forests are home to hundreds of other species that depend mostly or entirely on  to extinction rise with population ceilings”).  9. See Risk of Extinction, supra note 8, at 757; Times to Extinction, supra note 8, at 10871.   10. Kelly Anderson, Jack Ward Thomas (1934-2016), OR. ENCYC., https://www.oregonencyclopedia.org/articles/thomas_jack_ward_1934_/ (last visited Feb. 2, 2024).   11. Babbitt v. Sweet Home Chapter of Cmtys for a Great Or., 515 U.S. 687 (1995).  12. Brief for Petitioner at 17, Babbitt v. Sweet Home Chapter of Cmtys for a Great Or., 515 U.S. 687 (1995) (No. 94-859). 05 Pimm_Macros Run (Do Not Delete) 5/5/2024  11:49 AM 154 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXIV:2 them. Logging in those forests has expanded greatly since the 1950s.13 If the challenge hadn’t been from the owl, it would have been from another species.  The economic challenges were also framed narrowly. Logging was declining dramatically because there were fewer and fewer forests to log. Old growths were being used up, and mill closures could hardly be laid solely on the doorstep of environmentalists.  These were also national forests. The Multiple-Use Sustained-Yield Act of 1960 recognised the need to exploit forests sustainably but also protect the other values they provide.14 A complete economic analysis would cover those values, too — as with the snail darter. Many find old forests places of wonder and do not appreciate clearcuts.  AND MANY MORE I have covered these two cases in detail. The fish was ESA’s first casus belli, the owl its most famous. My decades of work on the Cape Sable sparrow—a drab, obscure bird living in the Everglades—make the same points.15 Harm to the sparrow comes from water delivery schedules that cost billions to implement and supplement the already massive financial subsidies the government gives sugar growers in Florida.16 Saving the sparrow is a matter of restoring the Everglades ecosystem. I have advised and testified in Congress on other species that offer the same lessons. Critics of the Act often frame it in narrow species terms and mention economic costs, not the often considerably larger benefits. Some of the various amendments to the Act have mandated that only costs be considered.17  Finally, such experiences have also shown a desire to allow species extinction as an unfortunate consequence of management but with the backup of reintroduction from captive breeding programs or even de-  13. See, e.g., David Albert & John Schoen, Use of Historical Logging Patterns to Identify Disproportionately Logged Ecosystems Within Temperate Rainforests of Southeastern Alaska, 27 CONSERVATION BIOLOGY 774, 775 (2013).  14. Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528–531.   15. Clinton N. Jenkins et al., Demonstrating the Destruction of the Habitat of the Cape Sable Seaside Sparrow (Ammodramus Maritimus Mirabilis), 6 ANIMAL CONSERV. 29, 29–30 (2003).  16. G. H. Snyder & J. M. Davidson, Everglades Agriculture: Past, Present, and Future, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION 85, 110–112 (Steven M. Davis and John C. Ogden eds., 1997).   17. History of the Endangered Species Act: Principal Amendments, U.S. FISH & WILDLIFE SERVICE, https://www.fws.gov/page/endangered-species-act-amendments (last visited Apr. 7, 2024).  05 Pimm_Macros Run (Do Not Delete) 5/5/2024  11:49 AM Spring 2024] THE PURPOSES OF THE ACT 155 extinction.  WHY DE-EXTINCTION IS A BAD IDEA The owl and the sparrow both generated suggestions that embraced continued environmental harm—the smallest amounts of forest preserved or business-as-usual water delivery plans. The ultimate extension of this is de-extinction, the idea that we can resurrect extinct species from their DNA. Be it passenger pigeons, thylacines, or woolly mammoths—’don’t worry; scientists in white lab coats will save the day.’  Reference to the movie Jurassic Park is unavoidable. So, recall what happens before the heroes see their first sauropod. The paleobotanist, played by Laura Dern, exclaims at seeing a large tree thought to be extinct since the Cretaceous. Greater wonder follows when a Brontosaurus moves into view, nibbling its leaves. Those who promote de-extinction rarely worry about the obvious lesson: one must get the ecosystem right before one can put a species back into the wild. Before creating a dinosaur from fossil DNA and a chicken egg, one needs to grow a huge tree, a process likely taking many decades.  My sarcasm continues. One attempt using embryos was the Pyrenean Ibex. A cloned individual died within minutes.18 Had it survived, those in white lab coats might have contemplated the lessons of conservation. One needs dozens of genetically diverse organisms for a population to have a chance at long-term survival. The first question reintroduction programs must ask is whether there is suitable habitat. Hunting was a major cause of the goat’s extinction.19 These genetic clones could easily have become the most expensive cabrito ever roasted.  There are case studies of species put back into the wild. An introduced snake eliminated the Guam Rail from Guam, along with all the island’s other land birds. With colleagues, I introduced captive-reared birds to a nearby snake-free island, Rota, in 1995.20 Further introductions were made to another island. There are now individuals in the wild, but the best one can say is that this experiment was costly   18. Raul E. Pina-Aguilar et al., Revival of Extinct Species Using Nuclear Transfer: Hope for the Mammoth, True for the Pyrenean Ibex, but is it time for “Conservation Cloning?”, 11 CLONING & STEM CELLS 341, 345 (2009).   19. J. Folch et. al, First Birth of an Animal From an Extinct Subspecies (Capra pyrenaica pyrenaica) by Cloning, 71 THERIOGENOLOGY 1026, 1026 (2009).  20. Gregory J. Witteman et al., The Decline and Restoration of the Guam Rail — Rallus Owstoni, 8 ENDANGERED SPECIES 36, 37 (1990). 05 Pimm_Macros Run (Do Not Delete) 5/5/2024  11:49 AM 156 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXIV:2 and that success was very uncertain given the difficulty.21  The first lesson is that even the reintroduction of species surviving only in captivity is fraught with problems. De-extinction adds many other layers of difficulty. The second is that such efforts would not address the damage to ecosystems that caused the species to become extinct in the first place—habitat loss, habitat damage, hunting, and so on. I oppose de-extinction because of the moral hazard it poses. As my experiences in testifying tell me, allowing “business as usual” with the mindset that we can bring any species back from extinction only encourages risky management and fundamentally misses the purpose of the ESA to protect ecosystems.  LESSONS The Endangered Species Act has been successful in saving species, some from the very brink of extinction.22 For some, the needs were simple: saving the bald eagle involved our not killing them. For others, such as the California condor, success pushed the frontiers of conservation science by breeding the birds in captivity before releasing them into the wild.   The examples I have chosen address conflicts at the heart of our experiences in nature. Were I to have added the black-footed ferret—a species I do not intimately know—one would have a set of species endangered by our destroying ecosystems across large areas: Appalachia’s rivers, the northwest old-growth forests, our largest wetland, the Everglades, and almost all of our prairies, their prairie dogs, and the ferrets that were their predators. The importance of the Act is thus to protect ecosystems at the scale that saves their species. In doing so, it resonates with our values, sometimes pitting narrow financial interests against those held by a much wider public.     21. Shaun Hurrell, How Did the Guam Rail Come Back From Extinction in the Wild?, BIRDLIFE INT’L (Jan. 20, 2020), https://www.birdlife.org/news/2020/01/20/how-did-the-guam-rail-come-back-from-extinction-in-the-wild/.  22. See Endangered Species Act Milestones, U.S. FISH & WILDLIFE SERV., https://www.fws.gov/esa50/our-history (noting that “the California condor, black-footed ferret, Fender’s blue butterfly, humpback chub, and others have all been lifted from the brink of extinction.”) (last visited Feb. 4, 2024). 

The Purposes of the Act

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The Purposes of the Act

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