For 35 years, ever since Richard Nixon signed it into law in December 1973, the Endangered Species Act has served as a biological half-way house, a kind of protective legal custody for life-forms at risk of disappearing. It would be more accurate, in a way, to call it the Endangered Species and Habitat Act, since the purpose of the law is to protect species by identifying and then protecting their critical habitat—old-growth forest for the northern spotted owl, the Little Tennessee River for the snail darter. The act has been controversial ever since it was signed, not because it tries to save plants and wildlife but because it tries to save the habitat they need to survive. Usually—and here is where the trouble arises—this means preventing humans from altering those ecosystems in any way.
What passed in 1973 was a lean, tough act. It called upon every department and agency in the federal government to work explicitly toward protecting endangered and threatened species. It required the federal government to cooperate with state governments in doing so, and it pledged the United States to live up to several international treaties whose purpose is to conserve species facing extinction. It was, in a sense, a bill of rights for the rest of creation.
There was a sense of urgency in the act—an urgency it shared with the Clean Air and Clean Water Acts of 1970 and 1972. What inspired them all was a groundswell of environmental awareness rising from many sources—including Rachel Carson's Silent Spring, published in 1962—and the sudden, painful realization that many species, whales and whooping cranes alike, were collapsing in numbers.
Is the urgency any less today? There were nearly 100 million fewer Americans in 1973, and some 2.8 billion fewer people on the planet. Scientists were just beginning to imagine climate change of the order now being projected, and its effect on wildlife and plants. Report after report—on habitat loss, deforestation, the pillaging of ocean fishing stocks, the plummeting of migratory bird populations—clearly indicates that the picture for many species, perhaps most, is far worse now than it was 35 years ago.
And yet in that time, the act has become a battleground. In part this is because it has created an ongoing conflict between the right to manage and develop property as an owner sees fit and the need to protect habitat critical to any endangered species that live on it. There's no mistaking the sober intent of the act. It prohibits the "taking" of any endangered species, and makes it illegal to destroy critical habitat, even on private land. Some landowners feel this provision violates their legal rights. They've taken their argument all the way to the Supreme Court, and mostly lost. Some landowners who feared the possible impact of the Endangered Species Act have even rushed ahead to exploit their property preemptively—by logging it, for instance—while a species is being considered for listing. To prevent this, and to create a safety valve in the law, the federal government has created programs like Safe Harbor. Participating landowners agree to protect habitat in exchange for assurances that more restrictive limits will not be imposed on their property.