The Endangered Species Act celebrates its 50th birthday in December 2023, and there is good reason for environmentalists to cheer its legacy. Later described by the Supreme Court as "the most comprehensive legislation for the preservation of endangered species enacted by any nation," the Endangered Species Act (ESA) has helped protect iconic animals like humpback whales, sea otters, whooping cranes and West Indian manatees. Because some animals face different threats based on their biology and environment, the ESA is divided into tiers for determining their existential risks — polar bears, for example, are "threatened."
Without the ESA public declarations about various animals being "endangered" or "at risk" would be meaningless gestures. It's one thing to say "save the whales" and another to actually do it. The only reason the United States government has any power to protect wildlife from human depredation is because of the act.
Yet the subsequent half-century has hardly been a triumph for the law. For every success story like that of the bald eagle or the black-footed ferret, the Endangered Species Act also has countless failures. In his new two-volume book "The Codex of the Endangered Species Act," conservation attorney and environmental historian Lowell E. Baier reviews the history of the law and its far-ranging consequences. While the second volume is a collection of essays from other scholars about the Endangered Species Act, the first volume — which is co-written by Baier himself with the help of Christopher E. Segal — explores both how the Endangered Species Act was passed and how it has been implemented over the years.
The problem is simple: Unless there is constant public pressure to protect threatened wildlife, the Endangered Species Act will not be implemented. In speaking with Salon about his book, Baier reviewed the successes and the inadequacies of the Endangered Species Act, as well as the stark contrast between American politics in the era when the law was passed and American politics in 2023.
This interview has been mildly edited for length and clarity.
Why is it so hard to get species on the endangered species list?
There is a process dictated by law which says that the US Fish and Wildlife Service and the National Marine Fisheries Service (which deals with aquatic mammals) has to go through a five-point checklist before they can qualify anything to get to determine whether or not is it is a species in crisis. And the biggest part of that is what they call a "biological opinion" or a "biological analysis" that can take up to one or two years to perform. And that's what slows it down.
Can you list a few examples of threatened and endangered species that have received extraordinary conservation efforts in human interventions due to the Endangered Species Act, and as a result are on a path toward recovery?
The most notable one is the bald eagle, which was headed for extinction because of the DDT [an insecticide known as dichlorodiphenyltrichloroethane] that was being used universally in the country, which caused the eggshells of the eagle to be very thin. When the eagles sat on those in the nest, they crushed the eggs.
The next would be the black-footed ferret, my favorite. The black-footed ferret was thought to be extinct. And then they discovered a small population in North Dakota, and they watched those for a short period of time, and they went extinct. And about five or six years later, over in Wyoming, a population was discovered. And from that population, they captured a number of them and put them into a breeding facility to propagate more species. That operation was moved out of Wyoming and the jurisdiction of Wyoming into the federal government facility down in Colorado.
There was a 2023 study which found that 73 genera of animals have become extinct since 1500 AD, vanishing at a rate 35 times higher than that which prevailed over the previous million years — so fast that it would've taken 18,000 years for the same event to have naturally occurred had human intervention not existed. Do you feel the Endangered Species Act provides the government with enough tools to stave off this so-called "mutilating of the tree of life," at least in the United States?
It does in concept. The problem is that the federal government has not funded it properly. In 1973, they made an ethical and moral decision — and they said that when they named it, an ethical and moral decision — to save all species, because the rate of extinction was becoming very visible back then. And so they passed the act, but what they failed to do is provide the money it needed to bring species in crisis out of crisis and into a recovery mode. And it's been a problem ever since. They underestimated it 50 years ago, and they failed to take action ever since, notwithstanding the repeated pleas of both the Department of Interiors' U.S. Fish and Wildlife Service and the states to give them more money.
That is what the RAWA, or Recovering America's Wildlife Act, is all about. It has been pending in Congress now for a while and needs money to be effective.
Why is it so difficult to prove extinction — that is proving a negative? And what can we do to make sure that animals really are extinct?
Well, what we can do to make sure they're extinct is surveillance. Fish and Wildlife Service officers and agents throughout the country do that, as do many, many non-profit organizations. They continually use their field people and their volunteers to determine, for example, whether the ivory-billed woodpecker is still viable. It was supposedly extinct about 10 or 15 or 20 years ago, but then occasionally there have been reported sightings of it, and the like. It's because animals move all the time. People aren't there to record them and observe them. And so that's why it's so hard to determine if something is extinct. And that's what our field biologists do as well.
So what policies do you believe ordinary citizens should support if they want to help protect biodiversity, a cause that often feels hopeless? You mentioned supporting the RAWA Act. Is there anything else along those lines that you might recommend?
Supporting the RAWA, or Recovering America's Wildlife Act. Promoting with Congress other funding mechanisms. For example, Bruce Westerman (R-AR), who is chair of the Natural Resources Committee in the House of Representatives, is now considering a companion bill that would put additional monies into the program. It all comes down to money and proper funding, and to continue to support the act.
Since 1995, there have been 608 bills introduced in the House or in the Senate that would either repeal or dumb down and really neutralize the effect of the Endangered Species Act. The American people can help by letting their representatives know that they support the Endangered Species Act, and it should not be weakened in any way or repealed. That's the best thing they could do, that plus funding.
Which politicians tend to be in favor of it and which tend to be opposed to it? How can Americans educate themselves about this?
Good question. I hate to make a broad statement, but the Democratic Party tends to support the Endangered Species Act and other conservation issues and statutes more than the Republicans. The Republicans have always been, it seems, a party of business, big business especially, and the for-profit incentives that drive much of it and of the American economy. That's a broad brush statement, but that happens to be the fact.
It's interesting you you say that because I have a question here about the president who signed the ESA into law, Richard Nixon, who was a Republican. And in addition to signing the Endangered Species Act, he also created the Environmental Protection Agency, amended the Clean Air Act and Clean Water Act, created the White House Council on Environmental Quality and the National Oceanic and Atmospheric Administration. In your book you describe him as someone who would support popular causes like environmental protection "to promote his own reelection and not due to personal devotion or interest in the issue." Yet wouldn't you argue that Nixon, at least by modern standards, would be a great environmentalist president?
Yes, he probably signed more environmental bills than any other president. And the sixties and seventies particularly were an outstanding period of time that promoted 68 great environmental bills, as well as consumer protection bills. And many of those were during Nixon's era. And by modern standards, as you have observed, all the best ones fell under Nixon's watch.
You were employed with President George Bush Sr. in 1989 and helped draft his own policies in terms of conservation. What experiences did you have during that process in the late 1980s, direct experiences in the field and in the wilderness, that helped inspire you during your work?
Well, it really started long before that. I was a kid that was raised on a farm out in the Midwest, and living in nature was very much part of my upbringing. We had no electricity in our house. We were on a party line for 13 other families and farms. We didn't have running water, just an outdoor privy in the back, and the like. And many times my brother and I would have to go out and hunt for our dinner — rabbits, pheasants, squirrels and other food that we could find. And so I was really very much a part of the natural world back then. It just stayed with me. The old farmers talk about the dirt under their fingernails. It never goes away, I'm afraid. That's true. As it relates to my work with and involvement with the natural world, it is from the ground up.
Constituencies of senators and congressmen can sometimes be very loud in their demands. And in the sixties and the seventies, as an example, they were the ones that advocated for far better protections than the law permitted. It really starts from the ground up. Unfortunately, the Congress today and their staffs are out of touch with what many of in in America want, especially the conservation community. They're just blind to their demands until they become quite vocal.
Why do you think that has changed?
When I was a page boy in the US House of Representatives here in 1956, I worked for the majority leader of the House of Representatives. He was a Republican, Rep. Charles Halleck from Indiana. He had been the majority leader. And just as I got there, the election changed, and Mr. Sam [Chairman Sam Rayburn] went into the chair and it became a Democratic house. So Charles Halleck at that point became the Minority Leader.
In my capacity as a page, I was his shadow. Wherever he went, I was to follow. He was generally on the floor, and he would signal me to come over and deliver notes or whatever. We didn't have blackberries and iPhones and so forth back then. And he had a bipartisan approach to any new legislation that the House was considering. Mr. Sam had an office right down the hall. They were below the Rotunda of the Capitol. It was kind of a private area where the leaders of Congress had their own private little offices. Halleck had one and about 75 yards down the hall from where Mr. Sam had an office, and they worked things out.
Those congressmen, you didn't come in that door without a problem or an issue, and you only went in when invited. But once you got in there, it was clear that the rule was you did not leave without resolving the problem or the issue. You had to stay and you had to resolve the issue and talk it out. And yes, they got heated with each other and they would pound the table and so forth, but not like upstairs in the house. That all changed after Halleck and Rayburn left office.
The jet airplanes had come in Congress and used to sit five days a week. Now they sit there Tuesday, Wednesday and Thursday. The [legislators] used to be given two tickets, one to come to Washington and one to leave Washington, when they were elected. Today, they get 52 tickets home and 52 tickets back.
Back then, the congressman and the senators didn't go home on weekends. They stayed here, they played golf together, they played cards, they recreated together. The kids would go to the same schools, participate in the same sports and so forth. It was a community. They really worked collaboratively in a very, very non-partisan way back when I was physically observing this.
When the jet airplanes came in and the cameras went into the gallery upstairs, congressmen would be making speeches when nobody was in the room, except they'd be making it to the cameras and to the galleries so they could get it on their public record, and have those reprinted in the congressional record, and they'd use that back home to make their constituents feel as though they really had importance in Washington. It is purely political, and it all changed after that and became partisan, somewhere around the time when the cameras came in and Congress only met three days a week, and they've gotten tickets to go and come, etc. It's a totally different time today than it was back then.
