Original Post by Alex McAuliffe:
The primary challenge I see presented due to the ambiguities and assumptions in the ESA is the subjectivity of the navigation and definitions in the ESA. Much of the ESA’s policies are written in ways that may seem contradictory to some and can be interpreted such as Section 4(b)(2), which states that exclusions can be made for areas of critical habitat if the “economic or other benefits of exclusion outweigh the cost” (Czech and Krausman 2001, 51). Through the ESA’s own definitions, a species would never be able to recover if critical habitat is excluded from protections. This contradictory example shows that subjectivity on policy implementation holds meaning implications if misused.
Czech, Brian and Paul R. Krausman. 2001. “Policy Elements of the Endangered Species Act.” In The Endangered Species Act: History, Conservation, Biology, and Public Policy, 48-57. Baltimore, MD: John Hopkins University Press.
I agree ESA polices are written and interpreted in a contradictory way. As illustrated in your post, contradictions within the act may lead to a species being unable to recover if critical habitat is excluded from protections. Furthermore, the last paragraph of this week’s textbook chapter made a stellar point about a large-scale controversy in the ESA. If the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) had the required technical expertise, political willpower, and administrative capacity to achieve the technical goals of the ESA, those very traits could clash with another goal of public policy in general: the strengthening of democracy. Land use would come under increasing control of the FWS and NMFS rather than the democratic process. Moreover, considering there is data and funding lacking, it makes sense to have more agencies be responsible for the act’s fulfillment.
Czech, Brian, and Paul R. Krausman. 2001. The Endangered Species Act: History, Conservation, Biology, and Public Policy. Baltimore: Johns Hopkins University Press.
Reply by Jordan Friedman:
Hi Mary and Alex,
You both bring up some great points about the contradictory aspects of the ESA. Mary, you bring up the concern of the ESA overriding democracy, something that I think many of its opponents agree with. To some, the idea that any federal regulation has the power to dictate what they can do with their land goes against their own freedoms. I think this is a major struggle with the ESA- we have seen examples time and time again (ex: Dusky Gopher Frog) where people have claimed that the ESA overreaches its authority by infringing on citizen’s rights. How do you think this can be avoided? Do you think clarifying the contradictions within the ESA would help to solve this issue?
Reply by Alex McAuliffe:
Hey Mary and Jordan,
You guys both bring up great points about the ESAs power and overstepping their authority using that power. There should be some sort of checks and balances within all policy implementation. For the ESA this could mean a liason for the public to negotiate the extent of protections required on their lands. By providing an avenue for negotiations to occur, the ESA can be more transparent and explain the science behind their regulations.
Reply by Fenton Kay:
Alex, do you think that, given the ambiguous language, one of those sections has or should have primacy when dealing with apparent or actual conflicts?
Reply by Alex McAuliffe:
In my opinion, the ESA should, when dealing with opposing clauses, utilize something along the lines of the precautionary principle. In this sense, I would suggest erring on the side of more protections rather than not providing enough protections. This, also, should be viewed on a case by case basis. However, I think that it would be an appropriate approach, especially as we are seeing increases in loss of biodiversity.