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Endangered Species Act

The Endangered Species Act of 1973 was one of dozens of environmental laws passed in the 1970s in the United States. The act is designed to protect critically imperiled species from extinction due to "the consequences of economic growth and development untempered by adequate concern and conservation."

Controversy about endangered ecosystems has been diverted to focus on the Northern Spotted Owl
Controversy about endangered ecosystems has been diverted to focus on the Northern Spotted Owl

ESA is administered by two federal agencies, the Fish and Wildlife Service and the Naional Marine Fisheries Service . The NMFS handles marine species (except for freshwater fish) the FWS has responsibility over all other species.


A species can be listed via two mechanisms. The first is for the FWS or NMFS to directly list the species. The second way is via individual or organizational petition. There are two categories on the list, endangered and threatened. Endangered species are closer to extinction than threatened species. A third status is 'candidate species'. Under this status, the FWS has concluded that listing is warranted but immediate listing is precluded due to other priorities (limited time, perhaps political pressure to delay listing).

It is illegal to kill, buy, sell or trade listed species. The penalties for violating the Endangered Species Act can be as serious as a $50,000 fine and up to a year in jail.

Further, the FWS develops a plan to help the listed species recover. Some species, such as the American Bald Eagle have successfully made it off the list. Others have become extinct.

The Act provides a citizen enforcement clause. This allows anyone to sue the FWS to list a species with dwindling numbers or to force enforcement of the law or an existing plan.

Controversy about the ESA

ESA is controversial, because of the polarizing nature of the debate, which is often framed on the one hand as government intrustion into private and corporate property rights, while on the other hand as a cynical refocusing upon a single, apparently trivial species issues that properly concern endangered ecosystems. Congress has attempted to limit the reach of the act, but this has proved politically difficult. Also, some people argue that when a plan restricts the use of private property it is equivalent to a "taking" or an illegal use of the government's eminent domain powers and a violation of constitutional rights to due process. Compare similar arguments against zoning.

There is also evidence that the Act's habitat-protection provisions can desensitize landowners to harming wildlife in order to protect the economic value of their property as exploitable resource. An example is the red-cockaded Woodpecker, which prefers to live in trees that are at least 70 years old [1]. A study published in the Journal of Law & Economics entitled "Pre-emptive Habitat Destruction Under the Endangered Species Act" found that landowners were harvesting Old growth forest in order to prevent the woodpeckers from nesting on their property. The article appeared to offer a prescription for evasion of the Act:

Under the ESA it is not only illegal to kill an endangered species, but it is also illegal to damage their habitat. By preventing the establishment of an old-growth pine stand, landowners can ensure that red-cockaded woodpeckers do not inhabit their land and avoid ESA regulations that limit or prohibit timber harvest activity.

Pittsburgh Tribune-Review columnist Ralph R. Reiland characterized similar actions as "the 3-S treatment": "Shoot, shovel, and shut up" as another recommended method for eliminating endangered species from one's land [2].


  • Benjamin, Daniel: Preemptive Cuts, PERC Reports, Volume 21, Number 4, Dec. 2003.
  • Lueck, Dean, and Jeffrey A. Michael: Preemptive Habitat Destruction under the Endangered Species Act, Journal of Law & Economics 46(1): 27-60, 2003.
  • Reiland, Ralph R.: Shoot, Shovel, and Shut Up, Apr. 6, 2004.
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