America's most conservative conservation law turns forty

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