America's most conservative conservation law turns forty


U. S. Fish and Wildlife Service - Northeast Region /flickr

On 28 December 1973 America breathed life into the landmark Endangered Species Act (ESA), and it has, ironically, been fighting its own extinction ever since.

Turning 40 can trigger a midlife crisis, make us confront our mortality and existential worth: as with humans so with this law, known both for its early ambitions and its aging flaws.

It was President Richard M. Nixon who first sought, championed, and enacted the ESA. Only later did it become among the Republican Party’s most viscerally hated laws, routinely targeted for repeal. It seems hell hath no fury like a real estate developer stymied by a rare, obscure amphibian.

For all the hostility, I feel the ESA has remained so durable for so long, and proven so successful in so many ways, because it is, at root, so profoundly and so fundamentally conservative.

Yes, conservative – in every original meaning of that term.

It is, by modern standards, an emphatically concise work. It lacks jargon, legalese, moral hedging, weasel-word clauses and budgetary qualifiers that typify many of the bloated 1,327-page dockets Congress churns out. 

Like equally concise (and conservative) works of clear, spare, political prose – Ten Commandments, Bill of Rights, Gettysburg Address – the ESA seeks to make us humans show restraint and humility in the face of forces far larger than our petty selves.

The conservative ESA:

  • never bogs itself down in details, never tries to micromanage or socially engineer how our species must prevent the extinction of all other species. It simply sets the bar high on what we as individuals, as a society, as a country, hold to be of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.”
  • betrays no liberal illusions about the perfectibility of human nature. It simply makes the conservative case for valuing what our ancestors bequeathed us that we may pass down that rich heritage to the next generation, intact. How we do so is up to us to figure out. But as Evangelists say, “God made it. We tend it. That settles it.”
  • unites all people – monotheists, pagans, atheists, born-agains – under a big tent with creation. Some may imagine those who wrote the ESA only meant to include the big, hairy, charismatic mega-fauna – not small and slimy critters and bugs. They conveniently overlook both the actual wording of the 1973 legislation and the ancient spirit that infuses it. Recall the Book of Genesis, in which “unto Noah into the ark” went two by two even “the beasts that are not clean” and in fact “every creeping thing that creepeth upon the earth.” Those values reveal a pragmatic view of nature and human survival.
  • hardly seeks to part us, keep us away from the wild; it does not prevent use of habitat, or halt consumption of individual plants and animals of every kind. It recognizes human dominion, but then it draws a clear line. It is a mark of responsible freedom to take one life of an individual plant or animal for our use; it is another thing altogether – a mark of hubris – to take away the potential for birth of a species forever. 

Conservative successes of the ESA

In training grounds, the Pentagon has led the way in protecting critical habitat of endangered birds and tortoises. Why? Among other things, it turns out the memory of the unique sounds and smells and sights of the natural places were often what soldiers said they were fighting for back home. If the most fearsome military force in history can gain strength from and adapt to the needs of irreplaceable critters they can’t even see, surely we all can, too.

Success also comes through quiet convening authority. The ESA speaks softly, with a big stick. It drags parties kicking and screaming to the table to negotiate market innovations. A plan pays ranchers for livestock lost to rare predators; hunters adopt non-lead ammo; upstream interests buy time by funding removal of downstream dams; commercial fishermen deploy nets and lines and harvest in new ways; a developer designs golf courses around old growth. These agreements turn the tide and help species recover or graduate off the ESA list forever.

Some may complain how saving rare birds and bees and flowers and trees “costs too much.” Fair enough. That’s their right. But they can’t ignore how wolf-generated tourism has eclipsed the expense of reintroducing them. Nor can one easily put a price on the bald eagle or the will of a majority of Americans who feel the world is a wilder place for having this law.

Does the ESA have flaws? Absolutely. But its flaws are those of any aging crank who refuses to compromise the values with which it was born.

In 1955 the late Republican icon William F. Buckley founded the National Review on the first principle that “A conservative is someone who stands athwart history, yelling ‘Stop’, at a time when no one is inclined to do so, or to have much patience with those who so urge it.”

I can think of no better characterization of ESA than that. Perhaps Buckley’s disciples should stop worrying and learn to love and embrace the law as their own.

Until then, happy 40th to my favorite conservative conservation law, and many happy returns.

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James Workman

James Workman

An EDF writer, James is co-authoring The Sea Change, a book on the transformation of U.S. fisheries. He also wrote Heart of Dryness, a story about what Kalahari Bushmen can teach the world about water security.

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I knew that Nixon created the EPA but I had no idea he was the driving force behind the ESA. Unfortunately, Nixon was the last friend of the environment Republicans had at the national level and it's sad that instead of being remembered for his environmental record, he will only be remembered for Watergate and residing disgrace

Thank you for your comment.

I'm a lifelong Democrat, who proudly served as a political appointee to the Department of the Interior under the Clinton Administration.

But I'll root for and work with anyone in any party who wants to bequeath a healthier, wilder, more resilient natural world to the next generation, and I'll give credit where it's due to those individuals across the aisle like Nixon, before and since, who have advanced the cause of conservation.

It was actually President Reagan who, in slashing the budget for federal projects, carried out Jimmy Carter's 'hit list' to kill dumb and harmful large dam projects, thus rescuing dozens of wild Western rivers.

President George H.W. Bush (the father) worked (with vigorous EDF support) to enact the 1990 Clean Air Act. That landmark conservation law showed the power and potential of 'cap and trade' systems to quickly and affordably reduce dangerous industrial emissions like nitrous oxide and sulfur dioxide that had caused acid rain.

President George W. Bush (the son) enclosed three percent of U.S. territorial waters at the highest level of protection through creation of a single marine reserve, the 363,680-square-kilometer Papahānaumokuākea National Monument, at that time the largest in the world.

Senator John McCain still holds up Teddy Roosevelt as his role model, and has been a champion of our National Parks. Former Speaker of the House, Newt Gingrich, spoke up on behalf of the Endangered Species Act, when many were eager to gut it. And countless national leaders of private conservation groups have come from the Republican camp to quietly rescue falcons and fisheries, wolves and woodpeckers.

I think the larger point I was trying to make, one with which you may concur, is that conservation of wild waters, wild landscapes, wild plants and animals does, or at least should, transcend Red State/Blue State mindsets to be a unifying national non-partisan cause, the essence of America, for which all patriots should be willing to work and to fight.

Thank you again - Jamie