Law of Salvation

Few bills have been more popular and less controversial than the Endangered Species Act—when they were enacted, that is. On December 19, 1973, the ESA unanimously cleared the U.S. Senate; a day later the House approved it 355 to 4. “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed,” effused President Richard Nixon when he signed the bill. In Washington, Sierra Club head Brock Evans was focused on stopping the Trans-Alaska pipeline. For the environmental community and most everyone else, the ESA was a no-brainer. Protecting the planet's genetic wealth made sense morally and economically. It was considered, rightly enough, what decent, civilized people do.

Evans didn't even read the text until 1997, when he took over the Endangered Species Coalition (a defense group funded by environmental organizations), at which point he said to himself: “My God, this is the strongest law I ever saw, far stronger than the Clean Water and Clean Air acts. No wonder the developers hate it.”

The last time the ESA was reauthorized was 1988, but with Representative Richard Pombo (R-CA) running the House Resources Committee, the environmental community has stopped pushing for reauthorization. Congress annually provides de facto reauthorization by voting ESA funding. And, notes John Kostyack, senior counsel for the National Wildlife Federation, “The fundamentals of the law are good. Everything we all want can be done through administrative processes. It would be nice to have Congress bless an ESA update and put more juice into the recovery aspect. But even if we get a decent Senate bill, how can we get anything good in a conference committee with Pombo? We don't want to unleash something that picks up a lot of momentum. After it gets to Pombo, the only tool to stop a bad bill would be a filibuster.”

The public is supportive of the law and loves its more visible and spectacular successes—wolves, grizzlies, bald eagles, peregrine falcons, red-cockaded woodpeckers, Kemp's ridley sea turtles, gray whales, alligators, and greenback cutthroat trout, to mention just a few. But it is unwilling to hold elected officials accountable for undercutting and underfunding recovery. Meanwhile, the ESA's enemies—led by Pombo, Representative Dennis Cardoza (D-CA), and Senator Michael Crapo (R-ID)—keep trying to extract its teeth.

Whether the ESA can survive the Bush administration and the 109th Congress remains to be seen. But it has proved impervious to similar and ceaseless onslaughts, including Newt Gingrich's Contract With America. Since 1978—when Congress created the “God Squad,” a committee that can sacrifice species if it decrees that saving them would be too inconvenient— the law has sustained only one “dent” (if it can even be called that). This was the Department of Defense exemption, a dream of ESA enemies all through the 1990s but which didn't become a reality until 2003, after the Bush administration used 9/11 to convince a reluctant Congress that the military needed the ability to destroy the habitat of listed species whenever it felt like it.

Few military leaders agreed. For one thing, the law already provided the exemption; all the Secretary of Defense had to do was ask. For another, they didn't want the bad publicity. So proud are the Marines of their superb ESA work, which continues despite the exemption, that they're putting up posters that read: “We're looking for a few good species.” And in 1996, when Audubon sent me to North Carolina to check out voluntary habitat work for red-cockaded woodpeckers, the Army's 82nd Airborne Division fell all over itself showing me the effective, innovative things it had done to help the species recover. Airborne officials assured me that for folks who can hit the ground fighting anywhere in the world within 18 hours, navigating around a few woodpecker trees is just plain easy.

How could any statute withstand so many vicious attacks for so long? Perhaps, as Evans postulates, it's because of the law's nobility and high-mindedness. “Thirty-two years ago,” he says, “our lawmakers got together and said: ‘We're not going to let another living thing go extinct in this nation or anywhere on this planet, if we can help it.' That's pretty impressive.”

Although the ESA is under the gun as never before, what's interesting, telling, and even encouraging is the opposition's forced shift in strategy. The White House has all but given up on legislative attacks and committed itself instead to administrative circumvention. The Western Governors' Association, a traditional forum for ESA bashing, is now calling for such green-sanctioned priorities as landowner incentives and recovery goals, and trying not to sound ominous with assurances that it just wants to “fix” the law. Even Pombo—who has built a career by spewing shrill anti-ESA rhetoric, hosting irrelevant ESA hate-session hearings, and hatching failed anti-ESA legislation—is now purring about just wanting to “make the law work better.” The goal of ESA enemies hasn't changed; it's just that by getting pummeled in the press, they've undergone major message training. Finally they understand what the polls have revealed all along: The American public loathes the thought of extinction.

Sometimes that loathing translates to recovery, as I was reminded on the steamy afternoon of June 14, 2005, at Garden in the Woods, the New England Wild Flower Society's living museum, in Framingham, Massachusetts. Pitcher plants, mountain laurel, rhododendrons, sundry orchids, and dozens of other native plants were in spectacular bloom. But the plant I had come to see was a tiny perennial herb with three-part, deeply toothed leaves, called Robbins' cinquefoil—visually, at least, the most unimpressive of all. Two-year-old specimens, no bigger than a quarter, were being raised in plastic pots. They wouldn't develop their yellow blossoms for another year, hopefully on a bare swath atop Mount Washington in New Hampshire's Presidential Range, where the wind has reached 231 mph and the temperature has hit minus 47 degrees Fahrenheit. In the wild, plants this size might be 12 years old. They don't compete well with other alpine vegetation, so they need snowless, wind-blasted terrain. The species possibly evolved in this alpine zone after its progenitor was stranded by retreating glaciers.

Flashier species attract more attention, but that doesn't mean Robbins' cinquefoil lacks passionate defenders, inside and outside government. When the plant was declared endangered in 1980, the only known population occurred on Mount Washington's Crawford Path, where it was being collected and trampled. Extinction seemed imminent. But under the mandate of the ESA, the U.S. Fish and Wildlife Service provided funding and wrote a recovery plan. The U.S. Forest Service, which manages the land, initiated a hiker-education program, moved the Crawford Path, and built an enclosure to protect the main cinquefoil population. The Appalachian Mountain Club assisted with this work, monitored the population, and collected seeds. The New England Wild Flower Society undertook propagation, and the St. Louis–based Center for Plant Conservation helped with seed banking.