Saving Endangered Animals by Killing Them?

By Joanne Mariner, FindLaw.com. Posted October 17, 2003.

At ceremonies two years ago in honor of Earth Day, President George Bush stood beneath a giant sequoia and called for "a new environmentalism for the 21st century." As fleshed out by his administration, this new environmentalism prefers market-based incentives to government regulation and elevates property rights over wilderness and species protection. It is, in many ways, simply the environmental corollary to the administration's broader deregulatory views.

Peter Huber, a senior fellow at the Manhattan Institute, is one of the brains behind the administration's approach to the environment. His influential political tract, 'Hard Green: Saving the Environment from the Environmentalists,' was published in 2000 as a conservative counterweight to Al Gore's Earth in the Balance.

In 'Hard Green,' Huber lauds Teddy Roosevelt as the ultimate environmentalist role model. Roosevelt, famous as a hunter and safari enthusiast, once killed several hundred wild animals -- including a reported nine lions, five elephants, 13 rhinos and seven hippos -- during a single extended expedition in Africa. As Huber puts it, approvingly: "He loved wild animals. He particularly loved to shoot them."

Roosevelt's 'love them and kill them' approach is the obvious antecedent of a new endangered species policy that the Bush Administration announced this summer. As set forth in a draft document whose comment period expires on Friday, the Administration plans to begin allowing hunters, zoos, circuses and others to kill, capture, and import wildlife facing extinction in other countries.

An Open Door to Corruption

The new policy marks a dramatic break from past practice. Rather than interpreting the Endangered Species Act to protect foreign species from exploitation and slaughter, as previous administrations have done, Bush Administration officials assert that encouraging such actions can contribute to the species' ultimate survival.

Prominent defenders of species preservation disagree. "It stinks, quite honestly," said renowned primatologist Jane Goodall of the proposed change. "It's an open door to corruption. It's disgusting."

The Bush Administration insists that the new rule is consistent with the law's existing provisions. Passed in 1973, the Endangered Species Act was meant to protect wildlife species in danger of extinction. In a landmark 1978 case interpreting the scope of the law, the Supreme Court called it the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation." The law now recognizes more than 1,700 threatened and endangered plant and animal species.

Besides protecting native plants and animals, the Endangered Species Act extends its coverage to wildlife in other countries. At present, 561 foreign species, nearly half of which are mammals, are listed as endangered or threatened under the act. Included among them are the snow leopard, the gorilla, and the South African mountain zebra.

To Enhance the Survival of the Species

In the past, officials of the U.S. Fish and Wildlife Service have interpreted the law to bar the commercial importation of endangered plants and animals to the United States. The clear reasoning behind this refusal was that U.S. demand would further deplete these species' already limited numbers.

The current administration, however, argues that the burgeoning U.S. market for sporting trophies, hides, pelts and other animal parts, as well as the demand for exotic pets and circus animals, could create positive conservation incentives. Section 10(1)(A) of the Endangered Species Act allows the Fish and Wildlife Service to grant exemptions to the law's ban on endangered species imports in order to "enhance the propagation or survival of the affected species." Invoking this section, the administration proposes to permit the importation of wildlife from countries with effective conservation programs.

Imports would be allowed, specifically, in cases where the country has a conservation plan by which the number of wildlife that are killed or captured is offset by increases in the target population. The overall net impact of such a plan should, theoretically, be positive.

The administration's draft policy is crowded with the language of incentive and sustainable use. Its promised benefits are speculative and long-term, however, while its risks are direct and immediate.

By opening up the American market to endangered species from abroad, the proposal creates direct incentives for the depletion of existing wildlife stocks. In contrast, the promised overall growth in endangered species populations will result only in those countries where the conservation plan is well thought out, where the authorities are genuinely interested in implementing it, and where the circumstances are such that implementation is actually possible. Given the corruption, disorganization, and competing priorities in many countries, it is doubtful that the proposed influx of American cash will have the desired effect.

In the end, what the change does is allow Fish and Wildlife Service officials to gamble with the future of foreign wildlife stocks. It substitutes a speculative weighing of incentives for a bright line rule.

False Modesty

Another aspect of the draft policy's reasoning that is worth examining, since it is so jarringly inconsistent with the Bush Administration's approach to other international problems, is its modesty. At several points in the draft policy, the use of market-based incentives is justified by reference to the U.S. government's limited ability to influence other countries' policies.

Here, where the goal is wildlife conservation, the U.S. government underscores the limited nature of its power to promote change in "other sovereign countries that have their own national laws and policies." Given such constraints, the administration argues, market-based incentives are among the "few available means" for encouraging conservation efforts abroad.

For an enlightening contrast, consider the "war on drugs." (Note the declaration of "war," for starters.) In its counter-narcotics efforts, the U.S. government has long eschewed market-based incentives in favor of a range of bullying tactics, which include blatant violations of other countries' sovereignty. The government's coercive measures have included invading a country and prosecuting its president (as with Panamanian strongman Manuel Noriega), abducting foreign citizens (as with Mexican physician Humberto Alvarez Machain, whose plight was eventually ruled on by the Supreme Court), and denying access to U.S. markets in retaliation for insufficient cooperation with U.S. counter-narcotics programs.

As the most powerful country in the world, the United States has enormous leverage in every realm. In approaching trade issues, the drug war, the counter-terrorism effort, or a number of other national priorities, one can be assured that U.S. policymakers are overly focused on their limited options for effecting change.

The Larger Context

It is worth remembering, in closing, that the recent proposals are part of a larger attack on the Endangered Species Act. With the administration's support, Republicans in Congress have been seeking to amend the law in order to weaken it. To achieve the same goal though other means, the administration has also consistently underfunded the endangered species program, creating a work backlog that undermines the Fish and Wildlife Service's ability to enforce the law's requirements.

Several of the administration's federal court nominees, such as Alabama Attorney General William Pryor and Texas Supreme Court Justice Priscilla Owen, have a history of hostility to the Endangered Species Act. Interior Secretary Gale Norton, the head of the department charged with enforcing the law, once filed a legal brief with the U.S. Supreme Court urging significant cuts in endangered species protections. Her assistant secretary for water and science is a former mining lawyer who once called for the abolition of the Endangered Species Act.

The overall picture is, in short, a gloomy one. It may be called the New Environmentalism, but it sounds a lot like the old anti-environmentalism. And Peter Huber is right: it makes Teddy Roosevelt look awfully good.

Joanne Mariner is a FindLaw columnist and a human rights attorney.

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