Our Strongest, our Own, our so special – and so uniquely American – Law
Author’s Note: My own personal memories of this wonderful law can never be divorced from its context, the year in which it was passed – 1973. That was my first year as the Sierra Club head lobbyist in Washington, and so my memories of that year are quite different perhaps than those of others more directly involved. I hope readers will be interested in the environmental/political context of that desperate year, 1973; to me, they give added pride in the ability of our political system to respond – even during hard times – to produce a law so far reaching and important to every cause that followed.
But for me that year, newly arrived in DC, and with huge new responsibilities just thrust upon me, the ESA was way down on my list of even thinking about, let alone priorities then All that came much later – read on!
355-4 in the House of Representatives. 92-0 in the Senate.
That was the vote on the new Endangered Species Act in each House of Congress, when it was brought to their Floors, in mid-1973 after several months of hearings.
355-4; 92-0. Ho Hum, I thought. “Totally noncontroversial. As it should be,” I also thought. The publicity and focus of all the scientific and layperson’s testimonies that whole year had been on calling attention to the fact that a number of animal species which Americans had cherished, but taken for granted – like the brown Pelican, Peregrine Falcon, California Condor, the alligator, and many others large and small, were rapidly sliding towards extinction. Along with many different and increasingly rare plant species.
Noncontroversial – of course! This seemed so obvious. So even though I had just moved to Washington from Seattle (leaving behind both a stint in the practice of law and — most recently – six years as the Northwest Representative for the Sierra Club and the Federation of Western Outdoor Clubs), I paid little attention. The larger, more controversial, struggles of the times occupied my complete attention.
Especially in retrospect, glorious years they were, in those heady times (1967-73), when the nation’s young seem to catch – be a part of — the rising tide of what became the American Environmental Movement. The tiny available resources for any conservation group of that distant era to pay almost anyone, meant that I suddenly found myself responsible for every action and event affecting forests, rivers, urban areas, wilderness, and other lands and waters – from Alaska down thru the Canadian Provinces of Yukon, Alberta and British Columbia… and of course, to include all or portions of our own Northwest states. And not just Idaho, Montana, Oregon, and Washington, as I soon learned: also NW Wyoming and N. California, if I ‘wanted’ them. And want them I did!
So, doing everything I could to both stimulate and organize new grassroots groups (and lobby decision-makers myself) to protect the still magnificent wild and beautiful places across my assigned ‘territory,’ not only totally consumed me during those years; it was also my entire psyche and world-outlook when Club leaders asked me to move to Washington DC in early 1973 to take over (and build up) the Club’s DC office – until then more of a listening post than a source of much advocacy activity.
When I arrived that January, (with a very tired wife, Rachel; 3-year old toddler, Joshua; plus our second-born, 10 day-old Noah), my major assignment from the Club was to “do whatever you can to stop the routing of that proposed Alaska Pipeline down across those earthquake zones and dangerous mountains to the sea – Big Oil just wants to sell it for export – and do all you can to secure a more enviro-friendly routing along the existing Alcan Highway to the Midwest, which needs & wants that new oil.”
Notice that my orders were NOT to stop the line completely. We would have loved to do so – after all, its first 400 miles completely breached the vast wilderness of the Alaskan North – that fabled Wilderness recounted in the tales of Jack London — with untold and unforeseen consequences later… but we were pragmatic then too: the politics just weren’t there. Big Oil, the National Chamber of Commerce, and Big Labor were just too strong against us fledgling nature-lovers. “Give it all you’ve got, do what we could…”
Those supremely stressful and intense months which followed were a real eye-opener for a young kid from Seattle – both as witness and as an actor, a “Dutch Boy at the Dike,” striving to stand in the way in front of the juggernauts of all these great powers.
Nevertheless, we fought on, myself & a few Club activists and staffers, and reps of a few other groups… delayed and delayed, raised a national media storm of support, drafted and ran my first ever full page ad in the Washington Post…. and fought on, until July.
The big and most final vote was very close: on a motion by Alaska Senator Mike Gravel to override the new National Environmental Policy Act – which would deny our rights to seek court redress – the key vote was a tie, 49-49. That meant that the (soon to resign, in disgrace for bribery) Vice President Spiro Agnew, voted, of course to break the tie.
And so we lost, but learned a lot about what really happens in Washington, and about how to fight back… AND we extracted numerous pro-environmental concessions along the way. “That which does not destroy me makes me strong,” said the German philosopher Freidrich Nietszche; and that is how we felt too. Stronger. Better able to take on all the battles to yet to come.
And maybe now, at last, there would be some time to see what we could do to help this Endangered Species Act, then wending its way through Congressional Committees.
Although it didn’t seemed like it needed much help. Ho hum, so obviously a needed law, to protect our Nation’s wild animal and plant life. Ho-hum; they don’t need us.
Right about then, for better or worse, I became completely entangled in (what turned out to be) a phony, trumped-up “Lumber Price Crisis,” engineered by the timber industry, for the purpose of extracting yet more over-logging out of our Nation’s already overcut National Forests. President Nixon appointed a Special Commission to review the matter, and again there were many hearings and months-more lobbying, as we who knew what was happening to the magnificent ancient virgin forests of the West Coast, fought to stem the tide. President Nixon even then (that autumn) issued an Executive Order, directing the Forest Service, to increase its timber sales by over 1 billion board feet a year, so as to ‘help’ the timber industry meet this contrived ‘demand.’
So those next intense months revealed yet another example of how Washington can work; and another lesson learned about how to push back, by using our own Movement’s unique power – the grassroots chapters and groups of our people, everywhere, who love their land and will stand up for it when the time comes. And that time had certainly come – again, and almost at the same time!
Just weeks later along came another “crisis.” This one began with the Arab-Israeli War, October 1973. The Arab attackers, once they realized they were losing, slapped an Oil Embargo on the West. Gasoline and oil prices here immediately spiked (up to about 50 cents a gallon if memory serves right!)… And panic roamed through the halls of Congress. And in much of the media too. Nothing like this had ever happened before! In that special “Washington-Way,” the cry went out for scapegoats: somebody, some things, must be to blame!
So thus came upon us, me still there only 8-9 months, the Nation’s first (but by no means the last!) “Energy Crisis.” And, like all of them, not really due to a lack of any supply… just a market perception of such, conveniently fed into by the oil & coal industries and their political allies – still shocked by environmentalists’ successes in passing that wave of new tough laws in the three previous years.. “It’s all the fault of these new environmental laws,” they proclaimed; and the President of the Sierra Club and I were hauled before many angry Congressional Committees to defend those “job-killing” new laws (sound familiar?).
So, still no time to help, even to read that new ESA. For in December President Nixon had signed it already. His words expressing the totally noncontroversial nature of this yet most powerful law, bear repeating as a reminder, in these party-polarized times:
“Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature-lovers alike, and it forms a vital part of the heritage we all share as Americans… Their lives will be richer, and America will be more beautiful in the years ahead, thanks to the measure that I have the pleasure of signing into law today.”
And so 1973 passed on; everywhere environmentalists and their allies pushed back against Big Oil and Big Coal – whose efforts to repeal the new environmental laws, including the ESA, failed that following January — due to a flood of phone calls and mail from outraged Americans. The ESA had withstood its first test.
For myself, busily engaged in building up the new office, traveling everywhere, helping in other new campaigns, still no personal reading time for the ESA. We all pitched in during the first serious new attack on it – over the “Snail Darter” lawsuit, which we had won; and saved the Act in 1977-78. Time danced on, and since there were so many good people working to successfully implement and defend the new law, I strongly supported it (and them), but no read.
The wheel of fate turned, and I became a head lobbyist at the National Audubon Society, charged with protecting the vast heritage of our public lands, especially those still threatened Ancient Forests, and the Arctic National Wildlife Refuge.
So, it was not until the early spring of 1997, that I finally sat down in a less-distracting place (an overnight flight to somewhere) to read the Endangered Species Act all the way through, my very first time. This time, I knew, it was seriously important that I do so: I had just been named as the new Executive Director of the Endangered Species Coalition – an organization I had long admired and worked with.
Now, here I was, the “new” E.D! “I had better read this thing,” I thought to myself, settling into the plane seat. “Now in my new job, I might be called upon to explain it sometime…”
And so I read, for much of that flight. And as I read, more and more, the enormity of what Congress (and those dedicated scientists and my environmental peers who had worked on it) had done, slowly began to dawn on me.
“My god, no wonder the far right politicians, developers and energy industries are so opposed to this Act,” I thought. “This is the strongest environmental law I have ever seen” What are the 3-4 factors which make it so — this wonderful ESA of ours?
First, it states very clearly, that IF the science shows that a species is sliding towards extinction, it must be protected — by placing it on the Endangered Species List.
Not “pretty please,” or “if doing so doesn’t interfere with other things you may want to do, like log or build dams…” That’s the way too many otherwise good statutes tend to read. “Pretty Please…”
Well, pretty please doesn’t cut it here: IF the science shows it (and BTW that’s ‘best available science,’ not absolutely 100% provable science)… THEN that plant or animal MUST be protected. Science, not agency discretion, RULES.
Second, putting it on the Endangered Species List triggers off a series of legal requirements, the most important of which in my mind is that the “habitat” of the species in question MUST be protected. Forty years of court decisions have refined this notion, but essentially it means that the listed species must have protected places to eat, find shelter, and reproduce.
Third, another specific legal requirement is that the government agency responsible for healing the affected species (usually the Fish and Wildlife Service) MUST, in conjunction with the land stewardship agency, devise a “Recovery Plan” which passes legal and scientific muster. That’s powerful too – because the whole political reasoning behind the ESA is that it is our nation’s obligation to do everything we can to help it “recover” back into biological health. That is, get it OFF the list!
Finally, and perhaps – especially in these politically contentious times – even more important is the fact that any person can enforce the law. That’s powerful, because all too often in these past decades, some agencies have deliberately refused to put a creature in trouble on that list, fearing a political backlash.
Well, we who love these critters and their habitats can’t worry too much about such backlashes. They will sometimes happen and we should try to ameliorate concerns if we can; but what’s the option? Just let it go and watch the critter die? No – so WE can file the petitions too WE can take a recalcitrant agency to court, we can challenge habitat and recovery plans, too. Over time, at least one-half of all the 1300+ species on the List are there because ordinary citizens and their representative organizations made it happen.
I don’t really think there is really anything quite like this remarkable law, so strong, explicit and powerfully enforceable, anywhere else in the world. Which certainly explains why it is controversial in some quarters. Because it WORKS! As intended.
But there is something else. By my count, since 1997, there have been well over 100 specific attempts, in Congress or hostile Administrations, to either repeal or seriously weaken the Endangered Species Act. But all have failed — why is this so?
I believe it is because the Endangered Species Act is something more, much more, than just a wildlife protection statute – good as it is at doing that. It is also a moral law – and it makes a profoundly moral statement about how we American really feel about our land.
Think about it for a minute: in 1973, the legislators of a great nation got together and they (almost unanimously) said: “From now on and henceforth, we the American People, shall not permit any other living native plant or animal which shares the national territory with us, to become extinct…”
Now if that isn’t a most noble testament to our love for our land –I don’t know what is.