The Endangered Species Act: Static Law Meets Dynamic World

Abstract

This paper looks at the discussion that preceded and accompanied the Endangered Species Act’s passage and early implementation, focusing on why the law took the form it did. In particular, I am interested in why the ESA came to assume an unrealistically static vision of nature and of law, and how to clarify that vision. The ESA embodies three key fallacies which overemphasize stability: the essentialist fallacy, which assumes that species are unchanging; the wilderness fallacy, which assumes that landscapes are at stable equilibrium; and the rule of law fallacy, which assumes that legal obligations should be fixed. For the first generation of ESA implementation stability, although illusory, was a rough approximation of reality, close enough that conservation policy could largely ignore change. Unfortunately, we now find ourselves in a world where change is occurring at a sufficiently rapid pace that a static conservation strategy is doomed to failure. This paper examines the need for a dynamic approach, explaining how the ESA’s tacit assumptions of stasis complicate the task of conservation. It then looks at the prospects for moving to a more dynamic model of conservation policy. It concludes that there are real political, psychological, and practical barriers to truly dynamic conservation policy, but that there are ways to move incrementally in that direction.

Keywords: endangered species act, conservation, adaptive management, dynamic policy