Malmsheimer, Robert W.

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Buffalo Environmental Law Journal Volume 9 Number 2 Article 4 4-1-2002 Understanding the Endangered Species Act: A Book Review Comparison of the Endangered Species Act and the Endangered Species Act: History, Conservation, Biology, and Public Policy Robert W. Malmsheimer State University of New York College of Environmental Science and Forestry Follow this and additional works at: https://digitalcommons.law.buffalo.edu/belj  Part of the Environmental Law Commons Recommended Citation Robert W. Malmsheimer, Understanding the Endangered Species Act: A Book Review Comparison of the Endangered Species Act and the Endangered Species Act: History, Conservation, Biology, and Public Policy, 9 Buff. Envtl. L.J. 293 (2002). Available at: https://digitalcommons.law.buffalo.edu/belj/vol9/iss2/4 This Book Review is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Environmental Law Journal by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. UNDERSTANDING THE ENDANGERED SPECIES ACT:A BOOK REVIEW COMPARISON OFTHE ENDANGERED SPECIES ACT'ANDTHE ENDANGERED SPECIES ACT: HISTORY,CONSERVATION BIOLOGY, AND PUBLIC POLICY2Robert W. Malmsheimer*The U.S. Supreme Court has called the Endangered SpeciesAct (ESA)3 "the most comprehensive legislation for the preservationof endangered species ever enacted by any nation."4 It is also one ofthe most scrutinized. Since its enactment in 1973, the ESA has beenthe subject of scores of books and hundreds law review articles. Twonew books, Tony Sullins' The Endangered Species Act and BrianCzech and Paul Krausman's The Endangered Species Act: History,Conservation Biology, andPublic Policy recently joined these works.This review compares these two books, both of which claimto be comprehensive analyses of the ESA. This article begins with asummary of each book's organization and content. I then comparethree aspects of the books, their authors' perspectives, the breadth anddepth of their analysis, and the books' usefulness for variousaudiences.I Tony A. Sullins, The Endangered Species Act (2001).2 BRIAN CZECH & PAUL R. KRAUSMAN, THE ENDANGERED SPECIES ACT:HISTORY, CONSERVATION BIOLOGY, AND PUBLIC POLICY (2001).Assistant Professor of Forest Policy and Law, SUNY College ofEnvironmental Science and Forestry (ESF), Syracuse, N.Y.; B.L.A. 1986, SUNYESF; J.D. 1989, Albany Law School; Ph.D. 1999, SUNY ESF.3 16 U.S.C. §§1531-1544 (1994).4 Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).294 BUFFALO ENVIRONMENTAL LAW JOURNAL [Vol.9Organization and ContentsSullins' The Endangered Species ActTony Sullins' book is part of the American Bar AssociationSection of Environment, Energy, and Resources' Basic PracticeSeries which are designed to provide concise information in an easy-to-use format. Sullins, an attorney with the U.S. Department of theInterior Solicitor's Office in Boise, Idaho, states that his goal was to"provide a comprehensive, yet basic overview of every majorcomponent of the ESA" that serves "as a valuable starting point forresearching all but the most obscure ESA issue."' Sullins fulfills boththe series' objectives and his own goals with a useful, legal analysisof the ESA.After an executive summary, the book consists often chaptersthat correspond to the ESA's major provisions: Listing and CriticalHabitat Designation; Conservation: Section 7(a)(1) and RecoveryPlanning; Prohibited Acts and Penalties (ESA Sections 9 and 11);Section 7 Consultation; Incidental Take Permits and Other AllowableTake; The Section 7 Exemption Process; State/Federal Interactionsunder the ESA; International Application of the ESA; ExperimentalPopulations; and Citizen Suits, Standing, and Procedure. In additionto the acronym list and comprehensive index the reader would expectas appendixes in this book, Sullins provides appendixes that answerfrequently asked questions, list and describe key ESA cases, andprovide an in-depth, well-referenced definitions of more than ninetyESA words and phrases.Czech and Krausman's The Endangered Species ActThis book is the product of Brian Czech's Ph.D. dissertationthat he completed under the direction of Paul Krausman while at theUniversity of Arizona. Dr. Czech, who also has two degrees in5 SULLINS, supra note 1, at xv.2002] BOOK REVIEW COMPARISON OF THE ESAwildlife sciences, is a conservation biologist in the U.S. Fish andWildlife Services' national office and has authored a previous bookthat critically examined economic growth.6 Dr. Krausman is aprofessor of Wildlife and Fisheries Science at the University ofArizona who has served as editor of numerous wildlife sciences, peer-review journals. Czech and Krausman's goal was to write "the book-on ESA. That is, if a person were to own only one account of ESA,this would be it."7 While their book contains many important, unique,and fascinating analyses, Czech and Krausman never overcome theaccessibility problems that the best social-science-dissertation-tumed-public-policy-analysis books, such as Rosemary O'Leary's Environ-mental Change: Federal Courts and the EPA,8 overcome to bereadable by audiences of non-social scientists.Czech and Krausman's book is divided into two parts. PartOne's four chapters set the stage for their analysis. After anintroductory chapter, they describe the history of endangered speciesin the United States; the statutory, administrative, and academicevolution of the ESA; and the social science theories that others haveused to examine the ESA. The remaining six chapters in Part Twocomprise more than 70% of the book and use policy design theory,the theoretical basis for Czech's dissertation, to examine the ESA'spolicy elements, social construction, technical legitimacy, context,implications for democracy, and property rights controversy. Itcontains some unique, but often difficult to read and sometimesconfusing, analyses. Chapter Five describes and employs policydesign theory to analyze the assumptions of the ESA's authors byconducting a subsection-by-subsection analysis of the ESA. The nextchapter describes the results of a nationwide survey that asked thepublic to value species for conservation and examines the political6 BRIAN CZECH, SHOVELING FUEL FOR A RUNAWAY TRAIN: ERRANTECONOMISTS, SHAMEFUL SPENDERS, AND A PLAN TO STOP THEM ALL (2000).7 CZECH AND KRAUSMAN, supra note 2, at xiv (emphasis in original).8 ROSEMARY O'LEARY, ENVIRONMENTAL CHANGE: FEDERAL COURTS ANDTHE EPA (1993).295296 BUFFALO ENVIRONMENTAL LAW JOURNAL [Vol.9power held in trust for species by conservation groups. Chapter Sevenaddresses the issue of species conservation prioritization byexamining the implications of species' biological characteristics. Thenext chapter describes the causes of species endangerment and howthese causes relate to the American economy. Chapter Nine analyzesthe ESA's implications for democracy by examining five issues:equity, freedom of information, public participation, majority rule,and political representation. The penultimate chapter discussesproperty rights issues based on the ESA, primarily through adescription and analysis of the Federal Court of Claims' decision inGood v. United States.9 The final chapter contains Czech andKrausman's recommendations about how the ESA should beamended to emphasize a "steady state economy and the adoption ofecosystem health as an omnibus role for public policy." 10A ComparisonAuthors 'PerspectiveSullins' and Czech and Krausman's books differ in twoimportant ways. First, Sullins' book is a legal analysis of the ESA,while Czech and Krausman's book provides a social science analysisof the act. Sullins' task is easier. He only needs to analyze the ESA andits regulations, and courts' interpretations of them. Sullins expertlyaccomplishes his task. Czech and Krausman's job is much moredifficult. They must relate this same information to the social, political,and economic contexts in which humans make decisions aboutendangered species, biodiversity, and the ESA. Czech and Krausmandesigned innovative analyses to address these issues. For example, theyanalyzed a database of 877 endangered species listed through 1994 toidentify eighteen causes of species jeopardization since the passage ofthe ESA. This analysis represents an important quantification of others'9 Good v. United States, 39 Fed. CI. 81 (1997).10 Czech and Krausman, supra note 2, at xvi.2002] BOOK REVIEW COMPARISON OF THE ESAanecdotal observations. However, as the next two subsections of thisreview describe, they do not make this or most of their other analyseseasily accessible to most of their potential audience.Second, Sullins' and Czech and Krausman's books reverse theusual roles of attorney and scientist. Attorneys' books and law reviewarticles usually include both analysis and advocacy, while social andnatural scientists' books and journal articles generally strive forobjective analysis. In this case, Sullins, the attorney, has provided anobjective legal analysis of the ESA, while Czech and Krausman, thesocial and natural scientists, have combined analysis and advocacy.Czech and Krausman clearly have an agenda. By page four, they havealready attempted to rebut and discredit the Wise Use movement'sarguments against the ESA. Their weaving of social and naturalscience with advocacy makes it difficult for the reader to differentiatewhere their analysis ends and their advocacy begins.Depth and Breadth of AnalysisSullins breaks no new ground with his book. Instead, heprovides the best concise description of the ESA's legal requirementscurrently available. The logical flow of the chapters and Sullins'clear, succinct writing style allows the reader to understand the ESAin only a few hours. For these readers, Sullins' "Frequently AskedQuestions" appendix provides a review of their reading and a superbanalysis of how different ESA sections and subsections interact.Czech and Krausman also do not break new ground. Most oftheir analyses are available elsewhere. For example, their examinationof the causes of species endangerment was previously published inthe well-respected journal, Science, in 1997." However, thiscompilation provides readers with their unique and important ESAanalyses in one source and were it not for their dense and difficult toread writing style, their book would be useful to a wide audience.Brian Czech and Paul R. Krausman, Distribution and Causation ofSpecies Endangerment in the United States, 277 SCIENCE 1116-1117 (1997).297298 BUFFALO ENVIRONMENTAL LAW JOURNAL [Vol.9This is a critical flaw. Czech and Krausman's passive voice, multipleclause sentences make this slow, exhausting reading, which is adiscredit to their work and ideas because Czech and Krausman havean important story to tell. Another problem for readers is the relativeindependence of Part Two's chapters. After only a few chapters, itbecomes obvious that these chapters summarize work that Czech andKrausman previously published independently. This defect could beovercome if the authors spent more time explaining how thesechapters fit together. For example, Czech and Krausman continuallystate that their analyses are based on policy design theory. However,they fail to provide a clear description of the theory (rather than asimple reference to it) or explain how their analyses conform with thetheory. Such an explanation, either in their initial discussion of policydesign theory or in the book's conclusion, would have been extremelyhelpful to those readers attempting to evaluate the appropriateness ofpolicy design theory for an evaluation of the ESA.Sullins' book is useful both as an overview of the ESA and asa reference book. The book's index makes it easy to locate specificinformation and the extensive use of footnotes provide readers withstarting points for more in-depth analysis. Czech and Krausman'sbook, as would be expected, is more difficult to use as a referencebook, but its index does allow readers to quickly locate pertinentinformation.Usefulness to ReadersAccording to the authors, both of these books were written formultiple audiences. However, the books' usefulness depends upon thereader's understanding of the ESA and the reader's profession.Legal scholars and practicing attorneys' familiar with the ESAwill find Sullins' book most useful as a quick reference. Thosereaders unfamiliar with the ESA and law students will not find abetter overview of the ESA. Czech and Krausman's book is notappropriate for those in the legal community attempting to understandthe ESA, and this book while interesting, provides little pragmatic2002] BOOK REVIEW COMPARISON OF THE ESA 299legal knowledge that practicing attorneys generally value. However,law professors will find Czech and Krausman's book fascinatingreading that may supply valuable information for teaching studentsabout endangered species and the ESA, and serve as a source ofquantitative information for legal scholarship.Natural resource and environmental professionals and scholarswill also find Sullins' description of the ESA an understandableoverview, although Sullins does assume the reader has a basic under-standing of legal concepts. These professionals and scholars are morelikely than those in the legal community to value Czech andKrausman's book. They are also more likely to continue through theauthors' dense writing style because their analysis will help themunderstand how social, political, and economic factors influence endan-gered species protection. However, natural resource and environmentalscholars will be frustrated by Czech and Krausman's attempts to adopttheir analyses for a broader audience. For example, when the authorsdiscuss the results of their national survey of the public's attitudestoward species, they fail to provide basic information that readers needto evaluate their results, such as number of survey respondents or thesurvey's response rate. Instead, they direct us to "a more thoroughassessment of our methods and statistical analysis" found in an articlein the journal Conservation Biology.'2 While it is important not to getbogged down in an exhaustive description of the survey'smethodology, this information allows the reader to evaluate theinferential value of Czech and Krausman's results.ConclusionBoth Sullins' and Czech and Krausman's analyses of the ESAfill voids in the literature. Sullins' book is more useful to thosereaders interested in understanding the structure and requirements of12 CZECH AND KRAUSMAN, supra note 2, at 60. See also Brian Czech, et al.,Social Construction, PoliticalPower, andthe Allocation ofBenefits to EndangeredSpecies, 12 CONSERVATION BIOLOGY 1103-1112 (1998).300 BUFFALO ENVIRONMENTAL LAW JOURNAL [Vol.9the ESA and its regulations. Czech and Krausman's book increasesour understanding of the how social, political, and economic forceshave impacted endangered species and their protection.

Understanding the Endangered Species Act: A Book Review Comparison of the Endangered Species Act and the Endangered Species Act: History, Conservation, Biology, and Public Policy

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Understanding the Endangered Species Act: A Book Review Comparison of the Endangered Species Act and the Endangered Species Act: History, Conservation, Biology, and Public Policy

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