Define: Endangered Species Act (Esa)

The Endangered Species Act (ESA) is a legislation designed to safeguard animals and plants that are at risk of extinction. It also aims to preserve the habitats of these animals and plants. This law provides protection only to animals and plants that are classified as “endangered” or “threatened”. It prohibits any harm, killing, or destruction of their habitats by both the government and private individuals. Additionally, the law restricts the government from engaging in any activities that may pose a threat to these animals, plants, or their habitats. While there are exceptions to these regulations, they are intended to be utilised only in exceptional circumstances.

The purpose of the Endangered Species Act (ESA) is to safeguard species from extinction caused by economic growth and development that disregards conservation efforts. The ESA aims to protect both the species and the ecosystems they rely on. It only provides protection for species classified as “endangered” or “threatened.” There are two ways a species can be listed: either the United States Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration (NOAA) can directly list a species through their candidate assessment program, or an individual or organisation can petition the FWS or NMFS to list a species. To be considered for listing, a species must meet one of five criteria: habitat destruction or modification, overutilization, decline due to disease or predation, inadequate regulatory mechanisms, or other natural or manmade factors affecting its existence. Potential candidate species are then prioritized, with “emergency listing” being the highest priority for species facing significant risks.

Under the ESA, no federal agency can authorize, fund, or carry out any action that may harm or threaten the existence of an endangered or threatened species or their habitat. This means that federal agencies cannot consider the cost of their actions when making decisions that could harm these species. While this aspect does not directly apply to private landowners, large-scale development, logging, and mining projects usually require a federal permit, making them subject to critical habitat regulation. Additionally, under the ESA, no one, whether public or private, can “take” an endangered species, which includes activities such as hunting, trapping, or collecting. The ESA also protects the habitat of endangered species from private actions, preventing harm or modification by private landowners.

Although the ESA initially provided strict protection for endangered species, various amendments have introduced flexibility, resulting in reduced protection. Examples of these exemptions and exclusions include seeking exemptions from the Endangered Species Committee, obtaining incidental take permits for lawful activities with an acceptable habitat conservation plan, entering into voluntary agreements under the “enhancement of survival” provision, and the “No Surprises” rule, which provides certainty and protection for landowners against unforeseen circumstances. While these exemptions and exclusions offer some flexibility, they also diminish the level of protection provided by the ESA.

Two notable examples of the ESA in action are the cases of TVA v. Hill and Babbitt v. Sweet Home. In TVA v. Hill, a dam construction was halted because it would have endangered the snail darter perch, an endangered species. This case demonstrates the ESA’s strict protection, even if it means stopping a project that has incurred significant costs. In Babbitt v. Sweet Home, the Supreme Court upheld the interpretation of “harm” to include significant habitat modification or degradation, preventing private landowners from harming or modifying the habitat of endangered or threatened species, even if they are not directly harming the animals themselves.

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This glossary post was last updated: 17th April 2024.