The “Embarrassing” Endangered Species Act: Beyond Collective Rights for Species

Waltz, Danny

From its earliest days, the Endangered Species Act (“ESA” or “Act”) has been a powerful law. Since Chief Justice Warren Burger explained that the “plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction, whatever the cost,” the ESA has become the “pit bull” of environmental statutes or the “workhorse of species protection.” Thanks to the Act’s broad enforcement power and citizen suit provision, the federal government and environmental groups have deployed the ESA against a wide variety of industry actors—from property developers, to agricultural producers, to wind and solar energy companies. Tacitly acknowledging the strength and reach of the ESA, regulated entities and property-rights groups have engaged in a multi-decade pitched battle to destroy, or at least weaken, the Act. Because the ESA reflects the “congressional intent to tilt the balance in any dispute involving an endangered species towards species protection,” even congressional Republicans are getting in on the Act—for the unusual end of combating the Obama administration’s climate change rules.

Despite the “pit bull” nature of the ESA and its purpose of protecting nonhuman species, one category of interest groups has, until recently, deployed a remarkably limited use of the Act: animal rights advocates. The animal rights movement’s reluctance to embrace the ESA is not by accident. It likely stems from the statute’s location at the nexus of what the philosopher Bryan Norton describes as “two moral systems—intergenerational sustainability of natural processes and concern for the wellbeing and autonomy of individual animals.” These “moral systems” are not always complementary. Under the traditional view of the ESA, the statute resolves the conflicting moral systems in favor of“intergenerational sustainability”—in short, when we set the species against the individual, the species always wins. This conception limits the statute’s value for animal rights.

This Article challenges the traditional conception that the ESA offers little to individual animals and animal rights. Instead, the Article suggests that the Act provides rights and welfare protections for individual members of endangered species at the experience level of the individual animal. In enacting the ESA, Congress concerned itself with the individual experience of members of endangered species—and the ESA’s implementing agencies, U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”), have worked to promote such experience. In other words, the Act does not just protect a species as a collective entity, but also pays attention to the rights of the individual, so long as that individual is a member of a covered class.

The Article begins in Part II with a brief philosophical background on two rights distinctions: human and animal rights, and collective and individual rights. The human rights discussion offers a very short description of the historical arc of rights in western political and legal theory, which started with a focus on the individual and has expanded to include collective, or group, rights. It also includes a counter-narrative outlier in the American constitutional context: the Second Amendment’s movement from a collective to an individual right to bear arms. Part II ends with a discussion of the individual and collective rights distinction within animal rights. In Part III, this Article proposes that the classical conception of the ESA is limited—like the U.S. Supreme Court’s recent interpretation of the Second Amendment, the Act is embedded with individual rights and protections. The Act’s text, purpose, and legislative history all suggest that members of ESAlisted species receive physical, psychological, and other experiencelevel protections as individuals. The Article concludes, in Part IV, with two suggestions for regulatory reform and additional scholarship based on this new understanding of the ESA.

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Columbia Journal of Environmental Law

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August 6, 2020