Building Better Species: Assisted Evolution, Genetic Engineering, and the Endangered Species Act

66 Pages Posted: 5 Mar 2022 Last revised: 2 May 2023

See all articles by Alex Erwin

Alex Erwin

Florida International University (FIU) - College of Law

Date Written: March 1, 2022

Abstract

On December 10, 2020, Elisabeth Ann, a black-footed ferret, was born. This was a momentous occasion, as it was the first time a native species listed under the Endangered Species Act (ESA) had been cloned. This is the first major attempt to use biotechnology to aid in the conservation of an endangered species, but it will certainly not be the last. While cloning may only be relevant for a small subsection of species, other forms of biotechnology, like genetic engineering, could be used to restore lost diversity or make novel changes to genomes. Projects to modify coral to withstand warmer oceans, or to create resistance against chronic disease in amphibians, are already in progress in academic and industry labs. Despite the promise, the application of these techniques to wildlife conservation is controversial. The use of genetic engineering to intervene in evolution is contentious because it challenges humanity’s assumptions about the very meaning of Nature. Genetic interventions pit the goals of protection of species and preservation of functioning ecosystems against deeply ingrained views that wildlife should exist apart from our influence. Many threats that listed species face are unlikely to be abated using traditional conservation approaches, forcing us to perpetually manage rather than truly recover.

In this paper, I argue that genetic engineering can facilitate the recovery of biodiversity. Our actions have already permanently modified “natural” genomes, and many of our management strategies clearly impinge upon the “wildness” of these species. With this in mind, taking a more informed and active role in that modification, limiting the temporal scope of management, is important for the future of wildlife conservation. Additionally, even though the Coordinated Framework does a poor job regulating conservation engineering, the ESA could provide regulatory oversight for the creation and release of these organisms through the use of: (1) scientific recovery permits; (2) the Controlled Propagation regulations; (3) the 10(j) experimental population procedures; and (4) special 4(d) rules. I conclude by making recommendations to improve this oversight and suggest factors to guide the Services in using these technologies.

Keywords: Endangered Species Act, Biotechnology, Genetic Engineering, Conservation Engineering, Synthetic Conservation

Suggested Citation

Erwin, John, Building Better Species: Assisted Evolution, Genetic Engineering, and the Endangered Species Act (March 1, 2022). Cornell Law Review, Vol. 108, (2023 Forthcoming), Florida International University Legal Studies Research Paper No. 22-07, Available at SSRN: https://ssrn.com/abstract=4047283 or http://dx.doi.org/10.2139/ssrn.4047283

John Erwin (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

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