Ethical Convergence and the Endangered Species Act

This post is part of the Environmental Law Review Syndicate. See the original post and leave a comment. 

By Caitlin Troyer Busch, J.D. Candidate, Stanford Law School

Introduction

The Endangered Species Act (ESA) is both lauded and criticized as one of the most powerful environmental laws ever enacted. Proponents of the law praise it for protecting thousands of endangered species over the last forty years, while detractors argue it is a bureaucratic mess that no longer benefits humans, but instead overburdens private landowners and development and values species’ needs above human needs. These claims reflect the disparate values underlying the statute itself. At the time of the Act’s passage, some proponents pushed for endangered species reform on the belief that species have intrinsic value—that is, value that “an entity has in itself, for what it is, or as an end.”[1] Others believed that the value of endangered species lay in their instrumental value to humans, as “means to a desired or valued end,” such as agriculture.[2] Despite these distinct values, the Act was passed in 1973 with little to no opposition. A wide range of stakeholders with differing environmental values came together to craft a far-reaching and unprecedented environmental law. This lack of opposition demonstrates that the Endangered Species Act successfully captured both sets of values in a single, comprehensive environmental statute.

In 1991, environmental ethicist Bryan Norton hypothesized that two disparate sets of values can lead to a single, meaningful policy in a process known as “convergence.”[3] The Endangered Species Act supports this hypothesis. The Act’s major proponent groups—the public, national legislators and the executive officials, and conservation organizations—each had non-anthropocentric (species-centered; intrinsic) and anthropocentric (human-centered; instrumental) motivations. What resulted was a statute incorporating both intrinsic and instrumental values, proving that disparate values can converge into one, noncontentious policy, as the convergence hypothesis contends. But, as today’s deeply divided battle over the Act demonstrates, there has been a divergence in opinion since the Act’s passage. So while the Act may substantiate the convergence hypothesis, it also demonstrates how ever-increasing scientific knowledge coupled with poor implementation of a statute’s requirements may render initial policy convergence obsolete.

I. The Convergence Hypothesis

Influential environmental philosopher Bryan Norton first explained his convergence hypothesis in detail in his 1991 book, Toward Unity Among Environmentalists,[4] and he has refined this hypothesis over the last two and a half decades.[5] According to his hypothesis, environmental policymakers need not explicitly consider or weigh differing environmental values when they make decisions because anthropocentric and non-anthropocentric values actually converge in terms of “practical goals and aims for environmental management.”[6] Norton argues that if an anthropocentric policymaker “takes the full range of human values—present and future—into account, [he or she] will choose a set of policies that can also be accepted by an advocate of a consistent and reasonable non-anthropocentrism.”[7]

This formulation limits his hypothesis in two important ways. The first is that anthropocentric policymakers must take into account “the full range of human values,” including future needs. Norton’s policymaker thus practices what Norton calls “weak anthropocentrism.”[8] Weak anthropocentrists understand that instrumental value need not only be “exploitative and economistic,” but instead can incorporate noneconomic, human-centered values, such as aesthetic pleasure, spiritual uses, and preservation for future generations.[9] Norton refers to these values as “transformative values.”[10] By incorporating these values as well as economic ones, an anthropocentric policymaker would understand that maintenance of ecosystems across generations best serves present and future human needs.[11] The second limit on his hypothesis is that non-anthropocentric advocates must be both “consistent and reasonable.” What Norton means by reasonable is not pejorative; it is simply a reflection of the fact that his hypothesis is a falsifiable, empirical one, centering around achievable, “real-world polices.”[12] Non-anthropocentrists who believe that no species should ever go extinct are, to Norton, unreasonable because it would be impossible to preserve every species in every situation, given that we can never have “complete biological knowledge.”[13] For those “unreasonable” non-anthropocentrists, no policy could ever reflect their values, and thus convergence is impossible.

For weak anthropocentrists and reasonable non-anthropocentrists, however, the focus in policymaking could be shifted from the differing values of environmentalists to the “shared policy goals and objectives that might characterize [their] unity”[14]—specifically, maintaining ecosystems across multiple generations.[15] Thus, policy makers can level weak anthropocentric arguments, rather than what many see as less palatable non-anthropocentric arguments, in order to build bridges between various stakeholders, without sacrificing the desires of non-anthropocentrists.[16] The convergence hypothesis thus allows for a more pragmatic focus in environmental ethics on decision-making based on weak anthropocentric values.

Not surprisingly, Norton has received a lot of pushback on his hypothesis. Many critics argue that Norton ignores a wide spectrum of environmental values by limiting his hypothesis to weak anthropocentrists and “reasonable” non-anthropocentrists. By excluding the polar ends of the spectrum—strong anthropocentrists who make strictly economic arguments and strong non-anthropocentrists who oppose essentially any human degradation of the environment—Norton leaves out a variety of perspectives perhaps quite relevant to policymaking and instead serves only the narrow “consistent and reasonable” middle.[17] Conceding that convergence is not applicable to those intransigently set in their philosophical ideologies, Norton claims that convergence describes “what would happen if intuitionists and ideologues shifted their attention from [mere] abstractions to how we can resolve real and difficult cases,” thus condoning a pragmatic approach.[18] But many environmental philosophers find it unpalatable to check ideology at the door, no matter the effect on real world, legislative decisionmaking. Either way, Norton does not attempt to capture these polarized ends in his hypothesis, so their existence or intransigence plays little role in supporting or falsifying his hypothesis.

In contrast to this argument concerning things concededly outside of Norton’s hypothesis, many non-anthropocentric environmentalists allege that Norton is “dead wrong” in arguing that both stances would lead to the same policies—that is, his hypothesis is false.[19] J. Baird Callicott, a renowned non-anthropocentric environmental philosopher, argues that policies based on anthropocentrism, even if broadly defined to include transformative values, will never be as “robust and inclusive [as] conservation policy based on the intrinsic value of nature.”[20] Because many entities with intrinsic value, like certain species, “are of little or no use to us,” they argue that most policies would not fully protect such entities under laws based solely on instrumental valuation.[21] The Endangered Species Act, then, is a perfect lens for testing the validity of the convergence hypothesis.

II. The Endangered Species Act as Convergence

There were three key groups of stakeholders at the passage of the Endangered Species Act: the public, politicians, and conservation groups. These stakeholders made both anthropocentric and non-anthropocentric arguments in the years leading up to the Act’s passage. Most arguments appealed to the instrumental value of nature (including transformative values), which was a recurrent theme in the passage of most major US environmental laws.[22] Indeed, the Act’s text mentions instrumental values only, proclaiming that “species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value.”[23] Though this may suggest that the Act is strictly anthropocentric, many key stakeholders involved in passing the ESA had non-anthropocentric motivations. Commentators have suggested that these non-anthropocentric stakeholders sacrificed explicit recognition of their own values “to encourage support for conservation beyond the abstract principle of species rights.”[24]This sacrifice directly reflects Norton’s view that weak anthropocentric arguments are more likely to build bridges without sacrificing the policy goals of those non-anthropocentrists. Indeed, the Endangered Species Act passed with only four dissenting votes, indicating that these diverse values had converged on a single, comprehensive policy that was acceptable to all parties.

A. The Values of the Stakeholders

1. The Public

The Endangered Species Act of 1973 came on the “peak of the environmental wave” and “represented the quintessential environmental issue” for much of the American public.[25] The Act was not the first of its kind; it represented the culmination of a decades-long adoption of a strong environmental ethic by the United States and its citizens. In the wake of World War II, as new technologies and industry began to dominate the American landscape, popular pro-environmental writers such as Rachel Carson and Aldo Leopold challenged the American people to reject human degradation of the environment and adopt a more conservationist attitude. As the environmental movement grew so did scientific knowledge, and the public became “more aware of basic ecological concepts [and] increasingly concerned about the fate of rare and endangered species.”[26] In particular, species like the bison, the passenger pigeon, and the whooping crane symbolized the human-caused loss of magnificent, historical, and useful species. The bison, in particular, embodied many of these concerns, as it was recognized as both a “symbol of the nation’s heritage” and a potential “vital food source [and source of] raw materials.”[27] Instrumental arguments such as these were often made about endangered species, particularly in regard to charismatic megafauna—large animals like elephants and tigers that invoke greater public sympathy and interest.[28] But the increasing public concern also spoke implicitly to a core belief of the environmental movement: the loss of species was somehow more meaningful and disturbing than simply losing something beneficial to humans.

As endangered species legislation was introduced in Congress in the mid-1960s[29] and throughout the early 1970s, the plight of endangered species was a popular news topic. Articles chastising humans for polluting the air and water and “put[ting] additional stress on wildlife”[30] were common during the time, which “helped raise public support for and awareness of endangered species protection.”[31] These articles often focused on instrumental values. For popular endangered species, many articles emphasized transformative values, including the historical legacy and symbolic value of these species.[32] News articles also appealed to generational equity concerns. For example, one article asked rhetorically: “Do you realize that there is an excellent chance that your children may never see a California Condor?”[33] Less charismatic species were often described in terms of their utility in medicine or agriculture or their importance in maintaining ecosystems.[34] Oftentimes these ecosystem arguments emphasized that these populations needed to be stabilized if key industries, such as fishing and hunting, were to continue.[35] All of these popular arguments—aesthetics, historical and symbolic importance, future generations, ecological stability, and economic uses—represented the anthropocentric values of much of the public at the time.

These were not the only values important to the public at the time, however. Many in the environmental movement argued for “[e]xtending moral concern to animals.”[36] This intrinsic value was certainly recognized in charismatic megafauna, as hunters of these animals were rebuked for not recognizing the higher value and majesty of the animal.[37] In fact, it was the exploitation of the big cats (e.g., tigers, leopards, cheetahs) for their fur in the mid-1960s that led the public to rally around endangered species protection.[38] During this time period, the fur of the spotted cats was considered a luxury item for women, and the strong demand for the coats caused depletion in some natural populations. In protest of these deleterious effects, the public successfully boycotted the industry.[39] The fight for the cats was explicitly against instrumental uses, reflecting a deeper moral outrage. This moral concern even extended to seemingly valueless species. One 1967 article stated: “Now what effect the spinedace or the pupfish will have on the price of butter and eggs is anyone’s guess. It has always been my feeling that the great outdoors was populated with a purpose . . . .”[40] Even plants were described as having infinite and intrinsic beauty.[41] The plight of the big cats and this recognition of intrinsic value in various species, coupled with widespread instrumental arguments, eventually led directly to calls for stricter endangered species legislation.[42]

2. Politicians

Congress clearly recognized the growing concern of the American public for endangered species, as the Endangered Species Preservation Act was passed in 1966,[43] followed three years later by the expanded Endangered Species Conservation Act of 1969.[44] This 1969 law was still too weak to adequately protect endangered species, so debate on the next iteration began. In hearings on the soon-to-be Endangered Species Act, many noted that “[t]he public’s interest in the protection and management of all wildlife and fish [was] increasing dramatically,”[45] and they made it clear that the “public emphathize[d] [sic] with the purposes of [the Act].”[46] Growing scientific knowledge also demonstrated that the previous “economy-based policies of the [Fish and Wildlife Service] and the Department of the Interior” were insufficient for species protection.[47] As a result, both Congress and the Nixon administration, which was heavily involved in the push for endangered species reform, relied on a wider variety of values to secure for the Act’s passage.

Still, the most prevalent argument for protecting endangered species was their economic value. Many politicians referred to endangered species as renewable, wildlife resources and sought to restore them to more productive levels.[48] These arguments directly reflected the cost-benefit analyses and trade-offs that an expansive Endangered Species Act would force them to consider during implementation. For example, despite external pressures to reduce the import and export of species, there was a particular emphasis on continuing to support international wildlife trade, where appropriate.[49] Thanks to these considerations, the bill received little backlash from major industries like fur and timber.[50]

Others in the hearings emphasized that, because species are irreplaceable, the loss of species could irreparably injury humans.[51] There was deep concern that the destruction of unique species had “resulted in ecological instability, reduced man’s freedom in choosing species for his utilization, and contributed to an impoverished quality of life.”[52] The potential for future loss of species was particularly disconcerting to politicians because such loss could abolish an entire facet of the country’s national heritage, destroying an important part of U.S. history for future generations.[53] In fact, both President Johnson (on signing the Endangered Species Preservation Act of 1966) and President Nixon (on signing the Endangered Species Act of 1973) explicitly touted the ability of the respective laws to “help us to preserve for our children the heritage of this great land we call America”[54] and to protect “threatened wildlife . . . [which] forms a vital part of the heritage we all share as Americans.”[55]

Members of these administrations and other legislators also made arguments for the intrinsic value of species. The Assistant Secretary of the Interior Nathan Reed gave testimony at Congressional hearings defending the intrinsic value of species saying, “I believe that mankind has matured to the point that we are no longer willing to participate in the unnatural destruction of the end product of eons of evolution,” while also appealing to the unique nature of each species and man’s role as one small part of the natural environment.[56] At other times, congressmen reproached man’s onslaught on endangered species, as represented by Senator Alan Cranston’s statement: “To cause the extinction of a species, whether by commission or omission, is unqualifiedly evil. The prevention of this extinction . . . must be a tenet among man’s moral responsibilities.”[57] Lastly, soon after Congress passed the 1966 Act, the Bureau of Fish and Wildlife Services released a paper that contained some of the most explicit arguments for intrinsic value made by anyone in government. One passage stated that “[t]o lose a rare and delicate flower or to lose bluebird habitat is not important because of anguish of the conservationist but because bluebirds, Indian paintbrush, cardinals, and grizzly bears should be present.”[58] These intrinsic arguments were imperative for winning over many key decisionmakers and stakeholders involved in crafting the Endangered Species Act.

3. Conservationists 

By far the most influential group in the argument for species’ intrinsic rights was the conservation organizations that played such a large role in the 1960s environmental movement. Organizations like the National Wildlife Federation, the National Audubon Society, the World Wildlife Fund, and the Wildlife Institute all pushed for expansive endangered species legislation, both in Congress and to the public.[59] The National Wildlife Federation (NWF), especially, played a key role in spreading knowledge and moral concern about the loss of endangered species. In 1957, the NWF released a short publication, in which species were recognized as having both intrinsic and instrumental values. Not only did it describe the duty of mankind to protect the land and maintain harmony with nature, but it also equated society’s attitude toward nature with past attitudes on race—clearly rebuking both as assailing the intrinsic rights of others.[60] At the same time, the NWF essay recognized the tension between species’ instrumental value for humankind and the potential for humans to encroach on other organisms’ intrinsic rights:

In the broadest sense of appreciation there are new worlds to conquer in sane and sound resource management, to become a challenge to hundreds of young men who aspire to work and seek renown in the conservation field. Be admonished not to become so cold and calculating as to sense no emotional ecstasy in a flight of mallards through the marsh mists in the eerie light of a rising sun, the serenity of a country meadow, the awe-inspiring grandeur of mountains, and the peace of silent places.[61]

This dichotomy between the recognition of intrinsic rights and the necessity of instrumental argumentation carried over into the debates over endangered species legislation. When the first two endangered species acts were passed in the 1960s, conservation organizations were among the first to call for the application of the law to all species including plants and invertebrates. Charles Callison of the National Audubon Society summed up this desire to expand protection to all species by saying, “[I]n the few are concentrated all the worth of one small but valuable part of our whole world. We condemn no wild creature and work to assure that no living species shall be lost.”[62] Other conservationists appealed directly to the intrinsic worth of particular species and noted that endangered species, no matter where they reside or what their use to humans, should be the concern of citizens all around the country.[63] These arguments translated into practical effects on the final Act’s coverage. For instance, a National Audubon Society representative argued that any exemptions for “taking”[64] species needed to ultimately be for the good of the species, not for the good of the humans doing the taking.[65]

Despite their intrinsic value focus, conservationists also made instrumental value arguments. They especially made strong appeals to species’ scientific import. Several conservationists mentioned the role of endangered species in filling “ecological niches” and maintaining healthy ecosystems, while others used stories of the past, such as the discovery of penicillin, to argue that even plants should be protected for their potential future contributions.[66] Even with these instrumental arguments, the key for conservationists was that the legislation strike a “sensible balance between environmental protection and the needs of progress,” so as to avoid losing any more of the natural world.[67]

B. The Final Statute as Convergence

This canvassing of the value-driven arguments of the various Endangered Species Act stakeholders demonstrates that a wide range of values shaped the final Act’s provisions. Despite this range of values, the final statute received little to no opposition, thus reflecting a convergence of these values.[68] This convergence led to one of the most comprehensive, powerful environmental laws in the history of the United States. The goal of the Act was to prioritize conservation of endangered species, even above economic growth and development.[69] In order to do this, the law granted the most stringent protection imaginable at the time—no endangered species could be harmed or killed for almost any reason.[70] The statute also called for equal protection of all endangered species, with no specific privilege given to different taxonomies (e.g. plants or animals).[71] The Act also has a somewhat unique structure: it applies to every single federal agency and all sectors of the American public.[72]

Though the explicit values in the Act are anthropocentric ones, including both economic and transformative values,[73] the power and breadth of the Act demonstrate that the intrinsic value of species is implicitly written into the law. Brian Czech and Paul Krausman believe the Act has a clear “biocentricity of goals,”[74] while others see the Act as an ethical law that can be implemented “as though species have a fundamental right not to be terminated by human activities.”[75] Ray Vaughan even went as far as to claim that the Act “attempts to accomplish something humanity has not tried before through statutory means: the saving of other species for their own good, regardless of whether those creatures have any significance to humanity or not.”[76] Finally, J. Baird Callicott, one of the foremost defenders of the Act’s non-anthropocentric values, suggests that economic values do not “appear adequate to achieve conservation of such species by purely market forces,” which suggests that the Act must “implicitly recognize[] the intrinsic value of listed species, effectively exempting their conservation from purely instrumental—and thus purely economic—considerations.”[77] Callicott and others believe that inclusions such as the citizen suit provision[78] and strict monetary penalties for takings[79] are manifestations of this intrinsic value prioritization and have led to the ability of non-anthropocentrists to protect endangered species throughout the Act’s implementation.[80]

III. Divergence in the Implementation of the Endangered Species Act

In the forty-three years since the Endangered Species Act’s passage, the Act has lost its convergent nature. It is no longer a policy that incorporates current anthropocentric and non-anthropocentric values. As scientific knowledge has increased and Legislative and Executive branch priorities have shifted, many stakeholders have come to see the Act as a poor fit for their values. Some weak anthropocentrists rely on current scientific knowledge to criticize the Act as no longer focusing on the correct “level” of conservation, i.e., species instead of habitat preservation, while others believe the Act is still effective at maintaining ecosystems long-term. Non-anthropocentrists, for their part, feel that strong anthropocentrists in Congress have weakened the Act through subsequent amendments, and that various presidential administrations have inadequately enforced it.[81] Finally, as scientific knowledge increases, it may be that the values of these stakeholders are actually shifting. As these values move toward the polar ends not covered by Norton’s hypothesis, the range of values reflected in convergent policies becomes narrower, and the hypothesis loses some import.

Since the Act’s passage, scientific knowledge has grown significantly, and some environmentalists and scientists criticize the Act for not accurately reflecting current knowledge, while still placing significant burdens on many.[82] As ecological knowledge has expanded, many critics have questioned whether the Act’s strict focus on individual species (as opposed to genetic diversity or habitat conservation) has scientific merit.[83] To these critics, this level of protection does not protect biodiversity most effectively, thus indicating that the Act relies on outdated science. Even so, given that the science on these issues is by no means settled, many weak anthropocentrists still believe the Act is a sufficient policy for conservation, if implemented effectively.[84] And of course, many non-anthropocentric conservationists praise the Act because they can use it to protect all endangered species, no matter the species’ role in broader conservation efforts. These values have evolved over time and thus no longer converge on the Endangered Species Act as enacted.

Likewise, though the Act was enacted as a cohesive, well-supported policy, its implementation has been wrought with contention, raising the question: Even if an Act represents convergence of values, does this convergence matter if the Act’s implementation does not mirror that convergence? Almost from the start, Congress (though a different one than had passed the Act) has sought to undermine the Act. In 1978, the Act delayed the Tennessee Valley Authority’s construction of the Tellico Dam in order to protect a tiny species of fish called the snail darter, costing Tennessee millions of dollars. As a result, the Carter administration was forced to make concessions in enforcing the Act, and largely did not carry out ambitious plans for designating and protecting critical habitats.[85] Over the next forty years, Congress would periodically undermine the law. For instance, the Fish and Wildlife Service, responsible for implementing the Act, has been called “one of the most severely underfunded natural resource agencies,”[86] and many argue that “Congress has slowly starved the wildlife agencies by denying them funding to fulfill their statutory obligations.”[87]

The Executive branch, for its part, has often under-enforced the law’s stringent requirements, including through nonenforcement of the strict taking restrictions and administrative downlisting of species to save resources.[88] Some administrations have even gone so far as to reject appropriations for listing species, as they see the listing process as too procedurally complex to be worth the necessary time and resources.[89] This under-enforcement has led to numerous lawsuits, which have typically served to broaden the Act’s reach.[90] This activism in the judicial system has caused both Congress and the Executive branch to attempt to “limit the scope of legal decisions regarding the law.”[91] This push and pull over the Act is in stark contrast to the homogeneous opinions on the Act at the time of its passage.

As the conservation science continues to improve and battles continue to rage over the Act’s implementation, it may be that the environmental values of the Act’s key stakeholders are actually becoming more polarized. While “reasonable” non-anthropocentrists essentially stay stable (believing that species have intrinsic value in their own right), weak anthropocentrists’ holistic view of conservation means they can more easily abandon the notion of protecting individual species if necessary to achieve the fundamental goal of protecting ecosystems. As some scholars have noted, as scientific knowledge improves and better management techniques are discovered, “[t]his tension between investing in species for their intrinsic value versus their utility is likely to increase.”[92] Likewise, the need for constant litigation to ensure the Act is consistently enforced may have caused non-anthropocentrists to become more entrenched in their ideologies—they want the Act implemented to its fullest extent to protect as many species as possible, even if the Fish and Wildlife Service has determined this is not the best way to manage broader conservation efforts.[93] Thus, some “reasonable” non-anthropocentrists may have easily moved into the realm of what Norton might call “unreasonable” over the course of the Act’s implementation.

IV. Conclusion

The Endangered Species Act was considered a massive triumph at the time of its passage, having little to no opposition from any of the Act’s stakeholders. The decades leading up to the Act’s passage witnessed a massive movement by the public, conservation organizations, and politicians to protect endangered species. Although each group had differing values and motivations for conserving species, their policy goals converged, as Bryan Norton’s convergence hypothesis predicts. The resulting Act explicitly recognized instrumental values and implicitly included necessary provisions codifying species’ intrinsic value. Now, forty years later, scientific knowledge has grown significantly, and some environmentalists and scientists are pushing for new conservation goals and policy that better reflect current knowledge. While Norton recognized that the convergence hypothesis would not include the polar ends of the anthropocentrism spectrum, even a “reasonable” non-anthropocentrist might not accept the Act in its current form, at least as currently implemented. What’s more, some weak anthropocentrists believe the Endangered Species Act is still sufficient for conservation, if implemented effectively, while others argue for its replacement wholesale. In the end, despite the Act supporting Norton’s convergence hypothesis, as scientific knowledge increases and decades of implementation occur, values may eventually diverge in such a way that the convergent policy no longer represents a convergence of those values.

 


[1] Ronald Sandler, Intrinsic Value, Ecology, and Conservation, 3 Nature Educ. Knowledge 10, 2012, at 4.

[2] Id.

[3] See generally Bryan G. Norton, Toward Unity Among Environmentalists (1991).

[4] Id.

[5] See, e.g., id.; Bryan Norton, Why I am not a non-anthropocentrist: Callicott and the Failure of Monistic Inherentism, 17 Envtl. Ethics 341 (1995); Bryan Norton, Convergence and Contextualism: Some Clarifications and a Reply to Steverson, 19 Envtl. Ethics 87 (1997).

[6] Brian K. Steverson, Contextualism and Norton’s Convergence Hypothesis, 17 Envtl. Ethics 135, 135 (1995).

[7] Norton, Convergence and Contextualismsupra note 5, at 87.

[8] See generally Bryan G. Norton, Environmental Ethics and Weak Anthropocentrism, 6 Envtl. Ethics 131 (1984).

[9] Ben A. Minteer, Unity Among Environmentalists? Debating the Values-Policy Link in Environmental Ethicsin Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 3, 9 (Ben A. Minteer ed., 2009).

[10] Id.

[11] Norton, Convergence and Contextualismsupra note 5, at 87.

[12] Id. at 87, 89; see also Bryan G. Norton, Convergence and Divergence: The Convergence Hypothesis Twenty Years Laterin Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 235, 237-40 (Ben A. Minteer ed., 2009).

[13] Norton, Convergence and Contextualismsupra note 5, at 87.

[14] Norton, supra note 3, at 12.

[15] Steverson, supra note 6, at 136.

[16] Id.

[17] See J. Baird Callicott, The Pragmatic Power and Promise of Theoretical Environmental Ethics: Forging a New Discourse, 11 Envtl. Values 3, 13 (2002); Holmes Rolston III, Converging Versus Reconstituting Environmental Ethicsin Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 97, 107-08 (Ben A. Minteer ed., 2009).

[18] Norton, Convergence and Contextualismsupra note 5, at 99.

[19] Minteer, supra note 9, at 12.

[20] Callicott, supra note 17, at 14.

[21] Rolston, supra note 17, at 101 (emphasis omitted); see also Callicott, supra note 17, at 13.

[22] Minteer, supra note 9, at 6.

[23] Endangered Species Act, § 2(a)(3), Pub. L. No. 93-205, 87 Stat. 885 (1973) (codified at 16 U.S.C. § 1531).

[24] Peter Kareiva et al., Nongovernmental Organizationsin 1 The Endangered Species Act at Thirty 176, 178 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[25] Steven Lewis Yaffee, Prohibitive Policy: Implementing the Federal Endangered Species Act 48 (1982).

[26] Mark V. Barrow, Nature’s Ghosts: Confronting Extinction from the Age of Jefferson to the Age of Ecology 306 (2009).

[27] Shannon Petersen, Acting for Endangered Species: The Statutory Ark 5-6 (2002).

[28] Frédéric Ducarme, Gloria M. Luque & Franck Courchamp, What Are “Charismatic Species” for Conservation Biologists?, BioSciences Master Reviews, July 2013, at 1-2.

[29] Congress passed the first iteration of the Endangered Species Act in 1966. Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 80 Stat. 926.

[30] Everett W. Lumbert, Environment Continues Decline Despite Man’s Curbing Effort, Hartford Courant, Sept. 12, 1971, at 12C.

[31] Petersen, supra note at 27, at 23.

[32] Id. at 5-6.

[33] Blame for Decline of Wildlife Placed Largely on Loss of Natural Habitat, Hartford Courant, July 24, 1967, at 27.

[34] See, e.g., William S. Boyd, Federal Protection of Endangered Wildlife Species, 22 Stan. L. Rev. 1289, 1290 (1970); Ronald Melville, Plant Conservation and the Red Book, 2 Biological Conservation 185, 185 (1970).

[35] See, e.g.Boydsupra note 34, at 1290.

[36] Anne Batchelor, The Preservation of Wildlife Habitat in Ecosystems: Towards a New Direction Under International Law to Prevent Species’ Extinction, 3 Fla. Int’l L.J. 307, 324 (1988).

[37] See, e.g., Glen Sherwood, If It’s Big and Flies – Shoot It!, 73 Audubon 72, 72 (1971).

[38] Barrow, supra note 26, at 328.

[39] See Joe Wing, Big Cats Should Still Run Scared, Hartford Courant, Oct. 11, 1970, at 6A; A Shortage of Tigers, Hartford Courant, Jan. 2, 1973, at 22.

[40] Blame for the Decline of Wildlifesupra note 33, at 27; see also Petersen, supra note 27, at 23.

[41] See, e.g., Willem Meijer, Endangered Plant Life, 5 Biological Conservation 163, 167 (1973); Melville, supra note 34, at 185.

[42] See, e.g.Save Species that Are Endangered, Hartford Courant, Aug. 4, 1968, at 2B.

[43] Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 80 Stat. 926.

[44] Endangered Species Conservation Act of 1969, Pub.L. 91-135, 83 Stat. 275.

[45] Endangered Species: Hearings on H.R. 37, H.R. 470, H.R. 471, H.R. 1461, H.R. 1511, H.R. 2669, H.R. 2735, H.R. 3310, H.R. 3696, H.R. 3795, H.R. 4755, H.R. 2169 and H.R. 4758 Before the Subcomm. on Fisheries & Wildlife Conservation & the Env’t of the H. Comm. on Merch. and Marine Fisheries, 93d Cong. 190, 237 (1973) (statement of Raymond M. Housley, Associate Deputy Chief for National Forest System, Department of Agriculture).

[46] Id. at 190 (draft environmental statement attached to statement of W.W. Lyons, Deputy Assistant Secretary of the Interior).

[47] Petersen, supra note at 27, at 18.

[48] See, e.g.Endangered Species Hearingssupra note 45, at 186-94 (draft environmental statement attached to statement of W.W. Lyons, Deputy Assistant Secretary of the Interior) (describing the loss of species in economic terms, in part).

[49] Id. at 17-20 (report attached to statement of Christian A. Herter, Special Assistant to the Secretary of State).

[50] Petersen, supra note at 27, at 31.

[51] See George Cameron Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 Notre Dame L. Rev. 315, 321 (1974) (“Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear.”).

[52] Endangered Species Hearingssupra note 45, at 202 (statement of Nathaniel P. Reed, Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior).

[53] Petersen, supra note at 27, at 26.

[54] President Lyndon B. Johnson, Remarks at the Signing Ceremony for Seven Conservation Bills (Oct. 15, 1966), http://www.presidency.ucsb.edu/ws/?pid=27929.

[55] President Richard Nixon, Statement on Signing the Endangered Species Act of 1973 (Dec. 28, 1973), http://www.presidency.ucsb.edu/ws/?pid=4090.

[56] Endangered Species Hearingsupra note 45, at 202 (statement of Nathaniel P. Reed, Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior).

[57] 116 Cong. Rec. 17, 198 (May 27, 1970) (statement of Senator Alan Cranston).

[58] Boydsupra note 34, at 1290 n.8 (quoting U.S. Dep’t of the Interior, Conservation Yearbook No. 4: Man-An Endangered Species? 44 (1967)).

[59] Petersen, supra note at 27, at 22.

[60] Ernest Swift, National Wildlife Federation, By Which We Live 1,4 (1957).

[61] Id. at 15.

[62] Conservation, Protection, and Propagation of Endangered Species of Fish and Wildlife: Hearings on S. 2217 Before Merchant Marine and Fisheries Subcomm of the S. Comm. on Comm., 89th Cong. 38-39 (1965) (statement of Charles H. Callison, Assistant to the President, National Audubon Society).

[63] Endangered Species Hearingsupra note 45, at 248, 299 (statements of Cynthia E. Wilson, National Audubon Society, and Tom Garrett, Wildlife Director, Friends of the Earth).

[64] Endangered Species Act, § 3(14) Pub. L. No. 93-205, 87 Stat. 885 (1973) (codified at 16 U.S.C. § 1532(19)) [hereinafter Endangered Species Act] (defining a taking as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”).

[65] See Endangered Species Hearingsupra note 45, at 252 (statement of Cynthia E. Wilson, National Audubon Society).

[66] See, e.g.id. at 256, 269 (statements of Christine Stevens, Secretary, Society for Animal Protective Legislation, and Howard S. Irwin, President, New York Botanical Garden).

[67] Id. at 334 (statement of Robert C. Hughes, Chairman of the Sierra Club’s National Wildlife Committee).

[68] J. Baird Callicott has argued that the Endangered Species Act actually “falsifies” the Convergence Hypothesis. See J. Baird Callicott, The Convergence Hypothesis Falsified: Implicit Intrinsic Value, Operational Rights, and De Facto Standing in the Endangered Species Actin Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 142, 142-166 (Ben A. Minteer ed., 2009). He stakes this claim on two fundamental premises: (1) that the Act is “clearly based on non-anthropocentric intrinsic values” and (2) that exclusively anthropocentric instrumental values would not have led to the same policy. Id. As demonstrated in Part II.A, premise (1) appears wrong on its face. Though Callicott concedes that “the values of endangered species explicitly stated in the ESA appear to be largely of the anthropocentric instrumental kind,” id. at 144, he claims that the Act’s conferral of “operational legal rights” on species—the right for any person to bring suit on behalf of any listed species—“implicitly recognizes their intrinsic value,” id. at 149. But this exactly proves the point: the Act is a single convergent policy that recognizes both the instrumental and intrinsic values of species. Moreover, his second premise relies on a definition of instrumental value much narrower than what Norton accounts for in his hypothesis. Callicott reduces these values to a monetary metric governed by strict cost-benefit analyses. See id. at 152-58. The convergence hypothesis was never meant to account for this strong anthropocentrism, so the fact that the Act does not reflect a policy that strong anthropocentrists would adopt is of no moment. See Norton, Convergence and Divergencesupra note 12, at 250-58.

[69] Endangered Species Act, § 2(a)(1); see J. Baird Callicott, Explicit and Implicit Valuesin 2 Endangered Species Act at Thirty 36, 39 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[70] There were takings allowances for scientific endeavors and a few other very minor instances. Endangered Species Act § 9, 10.

[71] Id. § 3 (excepting only pests presenting “an overwhelming and overriding risk to man”); see Frank W. Davis et al., Part 1: Conservation Goalsin 2 Endangered Species Act at Thirty 1, 3-5 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[72] Endangered Species Act § 7, 11(a)(1); see Brian Czech & Paul R. Krausman, The Endangered Species Act: History, Conservation Biology, and Public Policy 49-50 (2001).

[73] Endangered Species Act § 2(a)(3) (“These species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.”).

[74] Czech & Krausman, supra note 72, at 50.

[75] Kareiva et al., supra note 24, at 176.

[76] Lessons Learned Protecting and Restoring Wildlife in the Southern United States Under the Endangered Species Act: Oversight Field Hearing Before H. Comm. on Res., 109th Cong. 51 (Apr. 30, 2005) (statement of Ray Vaughan, Executive Director, WildLaw).

[77] Callicott, supra note 69, at 39.

[78] Endangered Species Act § 11(g).

[79] Id. § 11(a)(1).

[80] Coggins, supra note 51, at 320; Callicott, supra note 69, at 40.

[81] Steve Brown et al., Why Save Endangered Species: An Ethical Perspective, 2 Endangered Species: Technical Bulletin Reprint, no. 7, May 1985, at 1 (“Simply being listed as endangered or threatened is no guarantee that actions will be taken to preserve a species.”).

[82] See, e.g., Daniel J. Rohlf, Six Biological Reasons Why the Endangered Species Act Doesn’t Work-And What to Do About It, 5 Conservation Biology 273 (1991).

[83] J. Michael Scott et al., By the Numbersin 1 Endangered Species Act at Thirty 16, 20 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[84] See, e.g., Holly Doremus, Lessons Learnedin 1 Endangered Species Act at Thirty 195, 197 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006); Scott et al., supra note 83, at 31; Kieran Suckling & Martin Taylor, Critical Habitat and Recoveryin 1 Endangered Species Act at Thirty 75, 75 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[85] Suckling & Taylor, supra note 84, at 76.

[86] Czech & Krausman, supra note 72, at 127.

[87] Dale D. Goble, Endangered Species Actin Encyclopedia of Environmental Ethics and Philosophy 2009, at 302 (J. Baird Callicott and Robert Frodeman, eds.).

[88] See Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law 234 (3d ed. 1997); Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. Colo. L. Rev. 277, 290-91 (1993).

[89] See D. Noah Greenwald et al., The Listing Recordin 1 Endangered Species Act at Thirty 51, 61 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[90] See Petersen, supra note at 27, at 119.

[91] Id. at XI, 105.

[92] Davis, et al., supra note 71, at 4.

[93] Petersen, supra note at 27, at IX-XI.

 

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