Amicus Curiae Brief — National Ass'n v. Defenders of Wildlife

Y1Ge

Nos. 06-549; 06-340

In The

Supreme Court of the Anited States

¢

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Petitioner.

V.

DEFENDERS OF WILDLIFE ef a/..

Respond nes,

—

NATIONAL ASSOCIATION OF HOMEBUILDERS ef a/.,

PETIONCTS,

V.

DEFENDERS OF WILDLIFE e7 a7...

Respondents.

.

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

—- +

BRIEF OF JARED M. DIAMOND, THOMAS EISNER,

GORDON H. ORIANS, STUART L. PIMM,

PETER H. RAVEN, DAVID S. WILCOVE,

AND EDWARD O. WILSON AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

*

DANIEL J. ROLE

PACIFIC ENVIRONMENTAE ADVOCACY CENTER

10015 S.W. Terwilliger Bivd.

Portland. OR 97219

(503) 768-6707

March 27, 2007 Counsel for Amici Curiae

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TABLE OF CONTENTS ~~

Page

SUMMARY OF THE ARGUMENT ................cccceeeeeeeeees 3

TET iiciicsisvicnibicicinitntinaninsiacanineiaiancaisidieiinnaiiipinincenicainian 5

I. CONSERVATION OF ENDANGERED AND

Il.

THREATENED SPECIES PROVIDES SOCIETY

WITH MYRIAD IMPORTANT BENEFITS........

A. Ecological and economic importance of

conserving listed species and the eco-

systems upon which they depend................

B. Scientific value to the Nation and value to

the health of its people ...................:ceeeeeee0ee

C. Esthetic, historical, and cultural im-

REGULATION OF ALL FEDERAL AGENCY

ACTIONS UNDER SECTION 7 IS AN IMPOR-

TANT ASPECT OF THE ENDANGERED

SPECIES ACTS PROTECTIONS FOR

SPE Oe Ge ennceneccessemsossensnnnssnnesenetesninnennee

A. The Endangered Species Act has proven

effective in halting and reversing species

decline in the United States........................

B. The procedural and substantive provisions

of section 7(a)(2)’s consultation process

provide crucial legal protections for a

substantial number of listed species and

Ge Ne ircescrecnsusnstinctinenadvinsntensiininetonnsennes

10

16

16

TABLE OF CONTENTS -— Continued

| Page

C. Section 7’s emphasis of science favors

interpreting its prohibitions to apply to all

federal actions that are not granted an

exemption by the Endangered Species

ND ccnscxctvisernncnsiainccsitintininninnsnioniannsees 26

> I cecnetrccnnsmerenintipniemassemanememennnees 30

; iii

TABLE OF AUTHORITIES

Page

| CASES

Bennett v. Spear, 520 U.S. 154 (1997) ............cccceeeeeseeeeeees 22

Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert.

denied, Gibbs v. Norton, 531 U.S. 1145 (2001)............. 10

National Association of Home Builders of the

United States v. Babbit, 130 F.3d 1041 (D.C. Cir.

1997), cert. denier’, 524 U.S. 937 (1998) ..........ccceceee 9,10

National Wildlife Federation v. Burlington Northern

Railroad Inc., 23 F.3d 1508 (9th Cir. 1994)... 25

Sweet Home Chapter, Communities for a Great ~

Oregon v. Babbitt, 515 U.S. 687 (1995)... ceececeeeeee 25

Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978)....passim

STATUTES AND REGULATIONS

BD i RE ttctccrcrnernteusomnciinscsnienniemnetinnn 19

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BE a> SINNED seseconscsecsinssscennusnesenninmeecunnennianveneinonins 22

Be ears SE sc ceccrnnencntsenniscenecnsnsssininncomemnnnpnatnte 26, 27

BP ES, Ge icccsntnesrensevnsasencscenseeseunsienenionse 24

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a ers IE Pictcntenscnesencsntnnnninccninesctaveocnscommtmnenenets 28

ee IED ccctcenniniiisinrnntapsiciatatinistininmmndeneinnieaiadiat 28

16 U.S.C. §1536(e) through §1536(p)............ ee eeeeeeeeeeee 29

iv

TABLE OF AUTHORITIES — Continued

Page

Be Ee 29

ae tes SUE sicccicnictrinivcensinnnennmmameninnsenies 29

ne ee Si nicer ssesistasieri crane ieapriiiaianeaenenaniaintiniinetnes 29

Se STE sinressiecemneonesiiseiinceiininicitigasadensainnicnmmndia 25

MIE scsciconsesncetpatesninscndiliabeitensiiadnddiinnnnenadannateciiaieil 25

ee es SI echepiinitininnsiprnnncdmneninddeensteamniamnmeninemnninis 23

EE ID ciisntnsensintennencitiseneneinicinnmmaiianniniiains 25

SnD; STITUTE iscsiieneebrihitsinineainscesininpeneapenetieeieiindenimrcateninannaians 25

Se IE eenisirnisinsetsounaencennsnnenanunedtensenniiiunieneieiiiiie 25

SNS IIIT ITT cictniacsitpsinitpgetiiininnidpeninaitioieaiichingsnniaineeeiiiotiii 23

Se CITI i sictincisenssipssinsnainiintignainiiatecigtsicdiduiiantinntion’ 28

Sy SE TIINIED iiiccscctinsiceinstinstisieensinimsesiniieaiientalisiiniontaiiingi 24

es ED icrsinicstisiniatpainnticninsccinmiincmmanienii 23, 24

OTHER AUTHORITIES

Michael C. Blumm, Flies, Spiders, Toads, Wolves,

and the Constitutionality of the Endangered

Species Act’s Take Provision, 34 Envtl. L. 309

M. Breyer et al., More than the Sum of the Parts,

in Precious Heritage at 206, B. Stein et al., eds.

STUN tadichchiaiaphicetibaesieeasceniceipdeiealeddhanipiadansidithiiaiiabialdainiaiibeaeses 16

B. Burgess, Fate of the Wild: the Endangered

Species Act and the Future of Biodiversity (2001).......... 5

R. Costanza et al., The Value of the World’s

Ecosystem Services and Natural Capital, 387

ETE Ea ae ee 8

TABLE OF AUTHORITIES — Continued

Page

G. Daily and P. Ehrlich, Population Extinction

and the Biodiversity Crisis, in Biodiversity

Conservation: Problems and Policies, C.A.

PRED GE Gin GE CRED cercenctictcnmanenmnnnninin 14

G. Daily, Benefits Supplied to Human Societies by

Natural Ecosystems, 2 Issues in Ecology 1 (1997).......... 7

Endangered Species Act Reauthorization Hearings

Before the House Subcomm. on Fisheries and

Wildlife Conservation and the Environment of the

House Comm. on Merchant Marine and Fisheries,

Se CE. BE TID, Cee eeveveccccscncssnnionessenatscntesantinnnss 7

FWS, Consultations With Federal Agencies, www.fws.

gov/endangered/consultations/consultations.pdf

SOE SED Site, CIID cncevnsccunncticnisnisceveniionnninniateieeel 24

OR FU, Bay, De Ceres csensmiresesessenssenenessenvinnninsesinians 15

Scott Freeman & John C. Herron, Evolutionary

ER Cee iccrericeiessenininiininiaiicieninnmiinniiaidia 7, 11,14

C. Groves et al., Owning Up To Our Responsibilities:

Who owns Lands Important to Biodiversity?, in

Precious Heritage, B. Stein et al., eds. (2000)............... 19

H.R. Conf. Rep. No. 697, 96th Cong., Ist Sess. 12,

reprinted in 1979 U.S. Code Cong. & Admin.

eR TUTE TIPE conncnneccscunnsdenseupciecubieestiiuasdndatantmidiempaiamemaiadidiidieds 27

ee SN See, EE CD cnerececinninctcnsenniiatnensianisnnsicias 11, 26

H.R. Rep. No. 259, 102nd Cong., Ist Sess. (1991)............ 12

Hearings on H.R. 4335 before the Subcomm. on

Natural Resources, Agricultural Research and

Environment of the House Comm. on Science,

Space, and Technology, 100th Cong., 2d Sess.

TABLE OF AUTHORITIES -— Continued

Page

L. Helfrich et al., Sustaining America’s Aquatic

Biodiversity: Why is Aquatic Biodiversity Declining?,

Virginia Tech Pub. No. 420-521 (2003) ...........:cccceseeseees 18

A. Leopold, A Sand County Almanac (1949) .............000008 26

T. Male and M. Bean, Measuring Progress in US

Endangered Species Conservation, 8 Ecology

tare nt aris pr ncinreaienntenmanninstnenenntnaeen 20

L. Master et al., Vanishing Assets: Conservation

Status of U.S. Species, in Precious Heritage, B.

aa I oii ierrccaantarierdinenamertnennennnmenees 17

Richard C. Primack, Essentials of Conservation

ETA ee Onna Ee 7,14

William J. Ripple and Robert L. Beschta, Wolves

and The Ecology of Fear: Can Predation Risk

Structure Ecosystems, 54 BioScience 755 (August

Scientific Societies’ Statement on the Endangered

Species Act, February 27, 2006 (available at

http//www.conbio.org/Sections/NAmerica/NAPolicy.

I te 21

J. Scott et al., Conservation of Hawaii’s Vanishing

Avifauna, 38 BioScience 232 (1988)...............cccceeeeeeeeees 14

Douglass Smith et al., Yellowstone after Wolves, 53

en 9

B. Stein, A Remarkable Array: Species Diversity in

the United States, in Precious Heritage, B. Stein

i aiaiainaiaina rete emarrrenennins 17

M. Taylor et al., The Effectiveness of the En-

dangered Species Act: A Quantitative Analysis,

i naa caren eneeenaemetanenens 20

TABLE OF AUTHORITIES — Continued

Page

David Todd, Wolves - Predator Control and

Endangered Species Protection: Thoughts On

Politics and Law, 33 S. Tex. L. Rev. 459 (1992).............. 8

Mark Twain, The Celebrated Jumping Frog of

Calaveras County and Other Sketches (1867) .............. 16

U.S. Fish and Wildlife Service, http://ecos.fws.gov/

a I cccarscncinsenatnitiicnssninisnsiamameain 19

D. Wilcove et al., How Many Endangered Species

Are There in the United States?, 3 Frontiers in

Ecology and the Environment 414 (20085) .................... 19

E.O. Wilson, The Diversity of Life (1992) .............+.. 3, 11, 12

E.O. Wilson, The Future of Life (2002).................... 8, 12,13

Yellowstone Thermophiles Conservation Project, http://

www.wfed.org/projects/yellowstone/project.htm............... 13

1

INTEREST OF THE AMICI CURIAE

Amici are prominent scientists in the fields of biology,

botany, zoology, and ecology.’ Their expertise enables them

to understand and explain the ecological and economic

importance of protecting imperiled species, as well as to

explain the role science plays in the Endangered Species

Act’s species conservation scheme. Understanding the

importance of biodiversity is necessary to appreciate fully

why Congress enacted broad protections for species facing

extinction. Additionally, appreciating lawmakers’ emphasis

on science as the foundation for the Endangered Species

Act’s key provisions illuminates the inherent inconsistency

of reading into the statute a legally-based limitation on

the scope of federal agencies’ duties under section 7.

Amici include, in alphabetical order:

Jared M. Diamond is Professor and Vice Chair, Department

of Physiology, UCLA Medical School. Dr. Diamond is an

explorer of New Guinea bird fauna, and inventor of the

concept of assembly rules in community organization. Since

1977, he has devoted much of his time to popular science

writing including the bestselling books Guns, Germs and

Steel: The Fates of Human Societies, for which he was

awarded the Pulitzer Prize, and Collapse: How Societies

Choose to Fail or Survive.

Thomas Eisner is the Jacob Gould Schurman Professor of

Chemicai Ecology at Cornell University, and Director of the

’ This brief was not authored in whole or in part by counsel for a

party, and no person or entity other than the amici and their counsel

made a monetary contribution to the preparation or submission of this

brief. The parties have consented to the filing of amicus briefs and have

filed letters of consent with the Clerk of the Court.

2

Cornell Institute for Research in Chemical Ecology

(CIRCE). He is a world authority on animal behavior,

ecology, and evolution, and is one of the pioneers of chemi-

cal ecology, the discipline dealing with the chemical

interactions of organisms. He is a member of the National

Academy of Sciences, and received the National Medal of

Science in 1994. ~

Gordon H. Orians is Professor Emeritus of Biology, Uni-

versity of Washington. Dr. Orians is a member of the

National Academy of Sciences, the American Academy of

Arts and Sciences, and a past president of the Ecological

Society of America. His publications are focused on behav-

ioral ecology, plant-herbivore interactions, community

ecology, the ecology of rare plants, and human ecology.

Stuart L. Pimm is the Doris Duke Professor of Conserva-

tion Ecology, Duke University. Dr. Pimm is a conservation

biologist and ecologist, 1993 Pew Scholar in Conservation

and the Environment, and author of The Balance of

Nature? Ecological Issues in the Conservation of Species

and Communities and The World According to Pimm: A

Scientist Audits the Earth. Dr. Pimm’s expertise lies in

species extinctions and what can be done to prevent them.

He also studies the loss of tropical forests and its conse-

quences to biodiversity.

Peter H. Raven is Director of the Missouri Botanical

Garden and the George Engelmann Professor of Botany at

Washington University in St. Louis. Dr. Raven is past

Chair of the Division of Earth and Life Studies, U.S.

National Research Council. A MacArthur Fellow and

member of the National Academy of Sciences and Ameri-

can Academy of Arts and Sciences, he is a world leader in

the fields of plant evolution and systematics.

3

David S. Wilcove is Professor of Public Affairs and Ecology

and Evolutionary Biology at the Woodrow Wilson School,

Princeton University. Dr. Wilcove previously served -as

Senior Ecologist at Environmental Defense, Senior Ecolo-

gist for The Wilderness Society, and Research Scientist in

Zoology for The Nature Conservancy. A recipient of the

Distinguished Service Award of the Society for Conserva-

tion Biology, he has authored numerous publications,

including The Condor’s Shadow: The Loss and Recovery of

Wildlife in America (1999).

Edward O. Wilson is Curator of Entomology at the Mu-

seum of Comparative Zoology, and Pellegrino University

Professor Emeritus, Harvard University. Dr. Wilson's

research interests include evolutionary sociobiology,

biogeography, and ethical philosophy. A recipient of the

National Medal of Science, he has written over a dozen

books, including On Human Nature and The Ants for

which he was awarded Pulitzer Prizes in 1979 and 1991,

respectively. His book, The Diversity of Eife, has been

described as the sequel to Darwin’s Origin of Species.

¢

SUMMARY OF THE ARGUMENT

Amici are scientists who have dedicated their profes-

sional lives to studying species and ecosystems and the

ways in which human actions can destroy — or save — these

precious resources. Congress too recognized the impor-

tance of biodiversity and so enacted the Endangered

Species Act (ESA), 16 U.S.C. §1531 et seq., a comprehen-

sive, science-based approach to protecting the United

States’ most vulnerable species and the ecosystems upon

which these species depend. Based on their extensive

4

studies and experience, amici provide in this submission a

summary of some of the many benefits of biodiversity. Any

actions, regardless of their classification or type, that

adversely impact other native species will as a scientific

matter lead to continued erosion of the enormous ecologi-

cal, economic, scientific, aesthetic, cultural, and health

benefits that biological resources provide, and that law-

makers have repeatedly and explicitly recognized.

Reversing course from earlier legislation that gave

significant leeway to human actions that imperil other

species, Congress enacted stringent, encompassing protec-

tions in the ESA designed to halt and reverse the acceler-

ating trend toward species extinctions. Acknowledging

that federal actions can threaten other species, the ESA

mandates that federal agencies proceed with caution in

order that their actions do not contribute to species’

decline. Petitioners’ effort to read a broad exception into

application of this conservative approach threatens to

significantly weaken federal protections for threatened

and endangered species and the myriad benefits they

represent — something that Congress itself has consis-

tently refused to do.

Section 7 of the ESA also directs that science guide

implementation of its provisions, with the pointed excep-

tion of possible exemptions from section 7’s prohibitions

granted by a high-level policy committee after a deliberate

and exacting process. Amici firmly believe that interpret-

ing section 7 as inapplicable to a host of “nondiscretionary”

federal actions is directly at odds with the Endangered

Species Act’s emphasis on science and precaution as

5

touchstones of prudent management of this Nation’s

precious biological heritage.

¢

ARGUMENT

I. CONSERVATION OF ENDANGERED AND

THREATENED SPECIES PROVIDES SOCIETY

WITH MYRIAD IMPORTANT BENEFITS. —

President Nixon signed the Endangered Species Act

(ESA) into law on December 28, 1973, declaring that

“(njothing is more priceless and more worthy of preserva-

tion than the rich array of animal life with which our

country has been blessed. It is a many-faceted treasure, or

value to scholars, scientists, and nature lovers alike and it

forms a vital part of the heritage we all share as Ameri-

cans.” B. Burgess, Fate of the Wild: the Endangered Spe-

cies Act and the Future of Biodiversity at 3 (2001). This

Court termed the ESA the “most comprehensive legislation

for the preservation of endangered species ever enacted by

any nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153,

180 (1978). It provides a means whereby “the ecosystems

upon which endangered species and threatened species

depend may be conserved, [and] ... a program for the

conservation of such endangered species and threatened

species....” The Endangered Species Act, 16 U.S.C

§1531(b) (2000). As such, the statute takes a comprehen-

sive scientific approach to conserving biodiversity, seeking

to protect habitat and ecosystems crucial to protected

species as well as promoting conservation of species

themselves.

In its findings that explain the basis for enacting

legislation to conserve species facing extinction, lawmak-

ers declared that “these species of fish, wildlife, and plants

6

are of aesthetic, educational, historical, recreational, and

scientific value to the Nation and its people.” Jd. at

§1531(a)(3). In this section of their brief, amici provide

information to demonstrate more precisely why Congress

was absolutely correct in pointing out the myriad ways in

which biodiversity provides benefits to society — and thus

why lawmakers were justified in enacting a statute that

contains comprehensive and broadly inclusive mandates to

protect these benefits. Somewhat ironically, Congress also

noted in the ESA’s findings that economic growth and

development untempered by adequate concern and con-

servation has led to many species’ decline and even extinc-

tion. Id. at §1531(a)(1). While this is certainly true,

advancements over the past three decades in both our

knowledge and technology have demonstrated that species

and ecosystems are in fact also crucial to the Nation’s

economic well-being, and are often the raw materials of

socially beneficial economic growth and development. The

following sections therefore also explain why broad protec-

tions for other species also make a great deal of sense from

a purely economic standpoint.

It is telling that Congress, despite frequent urgings

from some quarters to the contrary, has for many years

refused to significantly weaken the ESA’s broad protec-

tions for imperiled species. Amici submit that Representa-

tive Schneider provided perhaps the best explanation for

this steadfast support for the ESA when she noted during

1985 reauthorization hearings that “[e]very time we

reauthorize this legislation another set of ‘user’ groups

comes before us to complain about the problems they are

having because of the Endangered Species Act. I am sure

these concerns are very real, but we must not lose sight of

what is at stake here. The very survival of this planet

i

depends in large part on maintaining species diversity.”

Endangered Species Act Reauthorization Hearings Before

the House Subcomm. on Fisheries and Wildlife Conserva-

tion and the Environment of the House Comm. on Mer-

chant Marine and Fisheries, 99th Cong., Ist Sess. 3 (1985).

A. Ecological and economic importance of

conserving listed species and the ecosys-

tems upon which they depend.

At the most basic level, biodiversity is crucial to

humankind’s long term survival because we depend on a

vast array of organisms to provide us with food, oxygen,

nutrient recycling and other important life-sustaining

functions. Scientists refer to these functions as ecosystem

services. Scott Freeman & John C. Herron, Evolutionary

Analysis 739 (1998); G. Daily et al., Benefits Supplied to

Human Societies by Natural Ecosystems, 2 Issues in Ecol-

ogy 1-18 (1997); see also Richard C. Primack, Essentials of

Conservation Biology at 79-100 (1998). Such biological

functions and services essential to human survival and

welfare include soil formation, breakdown of wastes, and

recycling of nutrients back into the soil which eventually

provides humankind with food and other benefits. At a

local scale, forests protect watersheds and thus the water

supplies of many towns and cities, wild insect popula-

tions pollinate crops, and coastal ecosystems are the

nurseries of commercially important fish stocks. Globally,

vast ecosystems such as tropical rainforests, grasslands,

wetlands, and forests also regulate composition of the

atmosphere, perpetuate the water cycle, and have an

important effect on climate. Freeman & Herron, supra, at

739. In 1997, scientists estimated the total economic

8

value of the renewable ecosystem services important to

human health and welfare as between $16 and $54 trillion

per year. R. Costanza et al., The Value of the World’s

Ecosystem Services and Natural Capital, 387 Nature 253-

260 (1997).

Individual species also play an important role in

providing these ecosystem services. Some organisms,

termed keystone species, play disproportionately impor-

tant roles (relative to their numerical abundance) in the

ecosystems in which they occur. Gray wolves, now pro-

tected under the ESA, provide an excellent example of a

keystone species and its importance to the health of an

entire ecosystem. David Todd, Wolves — Predator Control

and Endangered Species Protection: Thoughts On Politics

and Law, 33 S. Tex. L. Rev. 459, 478 (1992). The historic

range of wolves once covered most of the United States.

However, since they were thought of as pests, wolves were

eradicated from most of the United States by the early

20th century. Hunters shot the last wolf in Yellowstone in

1926. See William J. Ripple and Robert L. Beschta, Wolves

and The Ecology of Fear: Can Predation Risk Structure

Ecosystems, 54 BioScience 755, 759 (2004). Seventy years

later, FWS reintroduced wolves back into Yellowstone

pursuant to the Endangered Species Act. Over the past

* The study’s authors calculated that the estimated annual value of

ecosystem services at the time, $33 trillion, was 1.8 times the global

gross national product. Primack, supra, at 103. In the U.S., there is a

growing awareness of the economic and practical importance of

ecosystem services. In 1997 for example, New York City decided to

spend over a billion dollars to purchase forested lands in the Catskills

watershed to provide the city with drinking water — thereby avoiding $6

to $8 billion in costs for a mechanical water filtration system. See E.O.

Wilson, The Future of Life 107-08 (2002).

. 9

decade, scientists have observed wolves changing ecosys-

tem function in the greater Yellowstone area for the better.

Wolf predation and hunting activities have reduced ungu- -

late populations and changed herd movements; with less

browsing pressure, riparian vegetation and aspen forest

have increased significantly, improving riparian shade,

stabilizing stream banks, and in turn increasing beaver

and native fish populations. Jd. Wolves are thus helping to

restore lost ecosystem function and increase other wildlife

populations in America’s flagship national park, thus also

providing benefits for humans ranging from improved

water flows and reduced erosion to enhancing visitors’

enjoyment of the park. Jd.; see also Douglass Smith et al.,

Yellowstone after Wolves, 53 BioScience 330 (2003).

Other examples of such relationships are more subtle

but no less important. Though many people view insects

as trivial or even unpleasant species, they often perform

invaluable ecosystem services. For example, an estimated

100,000 different species, including bees and flies, provide

no-cost pollination services, including those that sustain a

significant percentage of the globe’s croplands. In the

United States, the agricultural value of wild native polli-

nators is estimated in the billions of dollars per year. See

Daily, supra, at 12. The continued availability of these

natural pollination services depends on conserving the

ecosystems upon which these species depend — a key goal

of the Endangered Species Act.

Courts have both recognized and relied upon the

economic and ecological value of wild species, including

those protected by the ESA. For instance, in National

Association of Home Builders of the United States uv.

Babbit, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524

U.S. 937 (1998), the District of Columbia Court of Appeals

10

emphasized the importance to its ecosystem of the descrip-

tively named Delhi Sands flower loving fly (Raphiomidas

terminatus abdominalis). The court in that case noted that

“t]he Committee Reports on the ESA reveal that one of

the primary reasons that Congress sought to protect

endangered species from ‘takings’ was the importance of

the continuing availability of a wide variety of species to

interstate commerce.” Jd. at 1053-54. Quoting from the

House report upon the enactment of the ESA, the Court of

Appeals emphasized lawmakers’ discussion of the poten-

tial future commercial uses of genetic and biological

resources, concluding that “the extinction of species and

the attendant decline in biodiversity will have a real and

predictable effect on interstate commerce.” Id.; see also

Michael C. Blumm, Flies, Spiders, Toads, Wolves, and the

Constitutionality of the Endangered Species Act’s Take

Provision, 34 Envtl. L. 309 (2004) (discussing the impor-

tance of biodiversity in the case). In also upholding the

federal government’s constitutional] authority over endan-

gered species found within a single state, the Fourth

Circuit in Gibbs v. Babbitt, 214 F.3d 483, 494 (4th Cir.

2000), cert. denied, Gibbs v. Norton, 531 U.S. 1145 (2001),

noted that recovery of red wolves could lead to tourism-

related economic improvements running into the hundreds

of millions of dollars.

B. Scientific value to the Nation and value to

the health of its people.

To the surprise of many in this technological age,

humans garner a considerable amount of both health

benefits and wealth directly from other species. For

example, scientists initially derived a key ingredient of

aspirin, perhaps the most widely used pharmaceutical in

11

the world, from a wild plant, meadowsweet. E.O. Wilson,

The Diversity of Life 283 (1992). Cancer-fighting medicines

made from compounds first isolated from rosy periwinkles

(Catharanthus roseus) in Madagascar and from Pacific

yew trees (Taxus occidentalis) — which are found in old

growth forests in the northwestern U.S. — help thousands

of patients each year. The Diversity of Life, supra, at 284;

Freeman & Herron, supra, at 742. Currently, approxi-

mately 25% of all prescription drugs dispensed by phar-

macies in the United States are based on substances first

derived from plants, 13% come from microorganisms, and

3% from animals. The Diversity of Life, supra, at 283-84.

Though science can now synthesize many of these com-

pounds artificially, the chemical structure and properties of

medicinal substances discovered in nature are often so

novel that chemists operating in labs would almost cer-

tainly never have thought to create them; hence it is crucial

to preserve wild species and the biochemical innovations

they represent.’ In addition to their incalculable health

* Lawmakers in fact anticipated such benefits when they passed

the Endangered Species Act to protect wild species for future genera-

tions. The House report accompanying the final bill noted that “[w]ho

knows or can say what potential cures for cancer or other scourges

present or future, may lie locked up in the structure of plants which

may yet be discovered, much less analyzed. Sheer self interests implore

us to be cautious.” TVA, 423 U.S. at 178 (quoting H.R. Rep. No. 93-412

at 4-5 (1973)). See also The- National Biological Diversity Conservation

and Environmental Act: Hearings on H.R. 4335 before the Subcomm. on

Natural Resources, Agricultural Research and Environment of the

House Comm. on Science, Spece, and Technology, 100th Cong., 2d Sess.

342 (4988) (testimony of the American Pharmaceutical Association that

“li]t is alarming to consider that years ago, there might have existed a

plant or microorganism that could have cured AIDS or other diseases,

but that through inaction, that species became extinct.”).

12

benefits, the commercial value of over-the-counter drugs

directly extracted from plants alone was estimated in 1998

to be $20 billion in the United States and $84 billion

worldwide. E.O. Wilson, The Future of Life 119 (2002).

In addition to the medical value that biological re-

sources offer to humankind, wild organisms also offer

improvements to agricultural practices and pest control.

Agricultural practices focused on a limited number of

single species monocultures, as Congress recognized, are

extremely susceptible to failure as a result of disease,

pests and other catastrophic natural disasters. See H.R.

Rep. No. 259, 102nd Cong., Ist Sess. 14 (1991). This risk is

particularly acute in an age of major industrial-scale

agriculture, where thousands of acres may be cultivated

with genetically identical individuals. Therefore, diverse

gene pools and an abundance of wild organisms are

essential to the ability to protect existing crops and pro-

duce new strains of food crops, as well as to development

and maintenance of an efficient pest control system and

disease resistance in our food supply.

In his book The Diversity of Life, amicus E.O. Wilson

observed that “[mJerely the attempt to solve the biodiver-

sity crisis offers great benefits never before enjoyed, for to

save species is to study them closely, and to learn them

well is to exploit their characteristic in novel ways.” The

Diversity of Life, supra, at 306 (1992). This illuminates the

myriad possibilities that conserving the great variety of

species have to offer to science. For example, some of the

most important scientific discoveries in recent years were

achieved with the help of extremophile bacteria living in

thermal springs within Yellowstone National Park. In

1983, scientists succeeded in using one of the organisms

found in this extreme environment, Thermus aquaticus, to

13

produce a heat resistant enzyme needed for synthesis of

DNA.. Ploymerase Cahin reaction, the manufacturing

process developed as a result, is the foundation for genetic

mapping. Such mapping of the human genome has become

extremely important for medical purposes, as well as for

uses such as crime detection and forensic medicine. The

Future of Life, supra, at 127; See also Yellowstone Thermo-

philes Conservation Project, http://www.wfed.org/projects/

yellowstone/project.htm (last visited March 21, 2007).

Through protecting biodiversity and species within Yellow-

stone National Park, scientists were able to discover and

use this unique organism, as a result opening the door to

tremendous scientific, medical, and other benefits even yet

untold.

Apart from utilitarian benefits, species are invaluable

from a scientific perspective because of their great intrin-

sic value as repositories of the history and accumulated

experiences of millions of previous life forms through

species’ continuous, evolutionary adaptation to a changing

environment. Primack, supra, at 129. By conserving

species, we can protect a storehouse of knowledge for

future generations. Hawaiian honeycreepers, a family of

birds known as the Drepanididae, serve as a prime exam-

ple of the evolutionary and scientific significance of spe-

cies. Honeycreepers are one of the best known examples of

adaptive radiation. Found only in the Hawaiian Islands,

this family consisted of over 45 species at the time the

Polynesians settled Hawaii 2,000 years ago. All of these

birds are believed to have evolved from a single species

that arrived on the island chain by chance. Each species

within the family has a specialized bill related to the type

of food eaten by that particular species. For example, long

billed honeycreepers feed on nectar, and short billed

14

honeycreepers specialize in cracking seeds. Primack,

supra, at 30; see also J. Scott et al., Conservation of Ha-

waii’s Vanishing Avifauna, 38 BioScience 232-253 (1988).

The diversity of honeycreepers thus offers invaluable

insight into the adaptation and evolution that species

undergo, and thus advances scientific knowledge. How-

ever, most Hawaiian honeycreepers are either extinct or

highly imperiled due to human activities, and to this day

the surviving species face many ongoing threats to their

existence. The Endangered Species Act protects over a

dozen threatened and endangered honeycreeper species,

as well as the knowledge they represent.

C. Esthetic, historical, and cultural impor-

tance.

Congress also recognized aesthetic and cultural values

of ecosystems and species. Aesthetic arguments for pre-

serving species revolve around values humans place on

quality of life, and range from considerations such as

enhanced property values, amenity benefits, and recrea-

tional opportunities in areas of greater species diversity to

perceptions of beauty and tranquility. See Freeman &

Herron, supra, at 742; The Future of Life, supra, at 187.

The aesthetic value of species is also reflected in our art

and photography, in our longing to keep pets and to

cultivate gardens, and even in the growing ecotourism

trade. Gretchen C. Daily and Paul R. Ehrlich, Population

Extinction and the Biodiversity Crisis, in Biodiversity

Conservation: Problems and Policies 47, C.A. Perrings

et al., eds. (1995).

Culturally, species play a prominent role in the

identity of indigenous peoples and contemporary nations,

as well as an important role in the religious lives of many.

15

See Freeman and Herron et al., supra, at 743. The Jewish

and Christian traditions hold that people have a steward-

ship duty to preserve biodiversity; Hinduism locates divin-

ity in certain animals, and Buddhism and Jainism avoid

unnecessary harm to life. Primack, supra, at 133. In addi-

tion, many native religions and cultural] traditions focus on

the energies of various species. The government of Papua

New Guinea, for example, protects various species of birds-

of-paradise (family Paradisaeidae) as a critical cultural

resource. Freeman and Herron et al., supra, at 743.

In the United States, many species have important

cultural value. Bald eagles are a prominent example. The

national symbol of our country and an important species to

many Indian tribes, bald eagles are still protected under

the Endangered Species Act. At the time Congress enacted

the ESA, the birds were virtually extirpated from the

contiguous United States. Fortunately, bald eagles today

serve as a success story of the ESA; without broad applica-

tion of the statute, this country might today enjoy its

national symbol only on posters and placards rather than

soaring overhead.

A final literary example also serves to illustrate

lawmakers’ wisdom in enacting strong legal protections for

biodiversity. Known to science as the California red-legged

frog (Rana aurora draytonii), this species has been extir-

pated from 70 percent of its former range. Found today

primarily in isolated wetlands and streams in coastal

drainages of central California, California red-legged frogs

were listed as threatened under the Endangered Species

Act in 1996. 61 Fed. Reg. 96583 (1996). Most people know

little of the biology or legal status of this species; it is

instead immediately recognizable to most Americans as a

cultural icon - the Celebrated Jumping Frogs of Calaveras

16

County. Mark Twain wrote of this venerated frog: “You

never see a frog so modest and straightforward as he was,

for all he was so gifted. And when it come to fair and

square jumping on a dead level, he could get over more

ground at one straddle than any animal of his breed you

ever see ... Smiley would ante up money on him as long

as he had a red. Smiley was monstrous proud of his frog,

and well he might be, for fellers that. had traveled and

been everywheres, all said he laid over any frog that ever

they see.” Mark Twain, The Celebrated Jumping Frog of

Calaveras County and Other Sketches (1867). Thanks to

the ESA, red-legged frogs are still in existence to jump

long distances, preserving not only their genetic resources

and their ecological and scientific value, but also main-

taining a unique and important part of the cultural history

of this country.

II. REGULATION OF ALL FEDERAL AGENCY

ACTIONS UNDER SECTION 7 IS AN IMPOR-

TANT ASPECT OF THE ENDANGERED SPECIES

ACT’S PROTECTIONS FOR LISTED SPECIES.

A. The Endangered Species Act has proven

effective in halting and reversing species

decline in the United States.

The United States harbors an extraordinarily rich

array of biological diversity. Though representing only 6%

of the Earth’s land area, this county contains portions of

12 of the world’s 14 major ecosystem groups, known as

biomes; by this measure the United States is the most

ecologically diverse nation on the planet. M. Breyer et al.,

More than the Sum of the Parts, in Precious Heritage at

206, B. Stein et al., eds. (2000). Science has formally

17

described slightly more than 200,000 different species that

live within the U.S., though the actual total most likely

lies between 300,000 and 600,000 unique life forms pre-

sent within this country. B. Stein, A Remarkable Array:

Species Diversity in the United States, in Precious Heri-

tage, supra, at 61. Many of these species exist nowhere

else in the world; for example, more than a quarter of the

country’s vascular plants — including over 1,000 in Hawaii

alone — are endemic to the United States. Jd. at 69. Given

that the dispute in the instant case arises under the Clean

Water Act, it is particularly significant to note the global

importance of this country’s aquatic species. The approxi-

mately 800 species of freshwater fishes-found in the U.S.

comprise about 10% of the known freshwater fish species

worldwide. The United States is also the most species-rich

nation on Earth for other freshwater organisms, including

freshwater mussels, snails, turtles, crayfish, and sala-

manders. Jd. at 67.

Unfortunately, the United States’ vast array of life

presently faces severe threats, mostly as a result of human

activities. More than 500 native species present at the

time European settlers first came to this country are

either extinct or no longer present in the United States. L.

Master et al., Vanishing Assets: Conservation Status of

U.S. Species, in Precivus Heritage, supra, at 114. Some of

these losses are well known, such as passenger pigeons,

whose population plummeted from hundreds of millions to

extinction over barely a century as a result of overexploi-

tation by hunters coupled with loss of habitat. Other

extinctions, including those of many bird species in Ha-

waii, took place out of the public eye with little fanfare.

Presently, a growing percentage of the nation’s plants and

animals face an uncertain future; at least one-third of the

18

nation’s known species are considered by scientists to be

of conservation concern. Jd. at 101. On a percentage

basis, aquatic species top the list of the countrys most

imperiled organisms, disappearing at a rate of between

two and five times that of terrestrial species. L. Helfrich

et al., Sustaining America’s Aquatic Biodiversity: Why is

Aquatic Biodiversity Declining?, Virginia Tech Pub. No.

420-521 (2003). Nearly three quarters of freshwater

mussel species in the United States face substantial risks

to their continued existence, followed by crayfishes (over

half of all U.S. species at risk), freshwater fishes (over

one-third of all U.S. species at risk), and amphibians

(also over one-third of all U.S. species at risk). L. Master

et al., supra, at 102.*

The United States currently lacks any comprehensive

national strategy to manage and safeguard its biological

resources. A wide variety of federal laws, programs, and

tax policies require or encourage conservation of species

and habitats, supplementing a similar array of such

mechanisms at the state and local level. However, these

initiatives vary greatly in their coverage and effectiveness.

For example, a decade ago Congress enacted organic

legislation for the nation’s collection of federal wildlife

refuges, calling on the U.S. Fish and Wildlife Service

(FWS) to plan and direct the growth of the refuge system

* Indeed, in its opinion in TVA v. Hill, 437 U.S. 153, 178 (1978), this

Court singled out a statement by the Assistant Secretary of Interior

who, in explaining to Congress the need for legislation to protect

imperiled species, pointed in particular to vanishing mollusks in the

Southeastern United States. Though admitting to uncertainty about

the importance of such species, the Assistant Secretary noted that he

had “great trouble being party to their destruction without ever having

gained such knowledge.” Id.

19

to “contribute to the conservation of the ecosystems of the

United States.” 16 U.S.C. §668dd(a)(4C). However, the

federal Wildlife Refuge System, as a result of historical

acquisition and designation priorities that often favored

waterfowl and game species, currently harbors less than

10% of total number of species formally listed as threat-

ened or endangered in the United States. C. Groves et al.,

Owning Up To Our Responsibilities: Who owns Lands

Important to Biodiversity?, in Precious Heritage, supra, at

283.

In the absence of an overall federal approach to

managing biodiversity, the federal Endangered Species Act

(ESA) has assumed an increasingly prominent role in

efforts to conserve species and their habitat in the United

States. The statute’s ever-increasing importance to the

nation’s biodiversity conservation efforts also stems from

the growing number of species facing the possibility of

extinction; the statute currently protects over 1,000

species found within the United States as endangered, as

well as more than 300 species listed as threatened. U.S.

Fish and Wildlife Service, http://ecos.fws.gov/tess_public/

Boxscore.do (visited March 14, 2007).° Reflecting biological

trends, aquatic species make up nearly one-fifth of those

listed on the threatened and endangered rolls. See id.

* Significantly, however, the ESA's lists of threatened and endan-

gered species likely significantly understate the number of life forms in

the United States facing extinction. The actual number of species

deserving of legal protections may be ten times the number species

currently listed. See D. Wilcove et al., How Many Endangered Species

Are There in the United States?, 3 Frontiers in Ecology and the Envi-

ronment 414 (2005).

20

Recent studies indicate that when species are desig-

nated for protection under the ESA, the statute has been

effective at halting and reversing their slide toward

extinction. Using data on species status reported over a

14-year period by the U.S. Fish and Wildlife Service, an

interdisciplinary research team found a strong correla-

tion between listing under the ESA and the likelihood

that a species’ conservation status was improving. M.

Taylor et al., The Effectiveness of the Endangered Species

Act: A Quantitative Analysis, 55 BioScience 360 (2005).

Based on findings that species listed for a longer period of

time were more likely to be classified by FWS as improv-

ing in status and less likely to be declining, these re-

searchers also concluded that protection under the ESA

provides listed species with conservation benefits that

accumulate over time, particularly in the initial years

after a species was placed on the endangered and threat-

ened lists.

The significant positive link between the time a

species is protected by the ESA and the likelihood that its

conservation status is stable or improving was confirmed

by a second investigation, which also used data reported

by FWS. Among species whose conservation status was

known by FWS, researchers found only 23% of species

listed for less than two years were classified as improving,

whereas 68% of species that had been protected by the

ESA for 13 years or more were improving. T. Male and M.

Bean, Measuring Progress in US Endangered Species

Conservation, 8 Ecology Letters 986 (2005). Perhaps not

surprisingly, this study also noted a strong positive link

between government expenditures on recovery measures

and the likelihood that a species’ status was improving.

Sounding an alarming note for some aquatic species in

particular, the research team noted that freshwater

21

mussels had the worst status trend among species they

examined, though many of these species were extremely

imperiled when they were added to the protected lists and

more than half of these spots had been listed for less

than 12 years.

Recognizing the Endangered Species Act’s important

role in providing “emergency room” protections for species

whose declines have put them at risk of extinction, as well

as the law’s increasing prominence in influencing biodiver-

sity conservation efforts generally, scientists and scientific

organizations have consistently voiced strong support for

maintaining and effectively implementing the statute. For

example, in February 2006 joint statement opposing

efforts to modify the Endangered Species Act’s scientific

standards, the American Fisheries Society, Ecological

Society of America, Entomological Society of America,

Society for Conservation Biology-North America, Society

for Range Management, and The Wildlife Society — profes-

sional organizations which collectively represent thou-

sands of scientists — declared that “(t]he ESA is a vital and

fundamentally sound tool in this Nation’s efforts to main-

tain biological diversity.” Scientific Societies’ Statement on

the Endangered Species Act, February 27, 2006 (available

at http//www.conbio.org/Sections/NAmerica/NAPolicy.CFM#

NA20060227).

B. The procedural and substantive provisions

of section 7(a)(2)’s consultation process

provide crucial legal protections for a sub-

stantial number of listed species and their

habitat.

As this Court has consistently recognized, the sub-

stantive and procedural requirements set forth in section

22

7(aX2) of the Endangered Species Act, 16 U.S.C.

§1532(a)\(2), are among the most important and influential

of the statute’s protections for listed species. See, e.g., TVA

v. Hill, 4837 U.S. 153, 173 (1978); Bennett v. Spear, 520

U.S. 154, 169 (1997).

Because the requirements of section 7(a)(2) apply to

the actions of federal agencies, these legal provisions play

an especially crucial role in conserving listed species that

occur on federal land. The federal government owns

approximately 400 million acres of land in the United

States outside Alaska. While most of these land holdings

are concentrated in the western states, federal lands

within other states also contain areas with substantial

biological value. Federal lands in Florida’s Everglades and

on barrier islands along the Gulf of Mexico coast provide

examples of public land holdings that, while not large in

absolute terms, play an outsized role in terms of biodiver-

sity conservation. Together, federal lands support popula-

tions of nearly three-fifths (59%) of the species protected

under the ESA. Groves, supra, at 278-79. This means that

section 7’s prohibitions against actions that jeopardize

listed species or destroy or adversely modify critical

habitat - which apply to all decisions by federal land

managers — directly and substantially influence what

happens to populations of, and habitat for, the majority of

threatened and endangered species in the United States.

Though the requirements of section 7 of the ESA

apply exclusively to the actions of federal agencies, this

section of the statute nonetheless also provides significant

protections for threatened and endangered species and

their habitat on non-federal land. Regulations implement-

ing section 7 define agency “action” to include “all activi-

ties or programs of any kind authorized, funded, or carried

23

out, in whole or part, by Federal agencies in the United

States or upon the high seas.” 50 C.F.R. §402.02. Many

activities that affect listed species on non-federal land

require a federal permit or depend to some degree on

federal funding. Wetlands, for example, provide habitat for

many threatened and endangered species. Before signifi-

cantly altering most wetland areas, a landowner must first

obtain a permit from the U.S. Army Corps of Engineers

pursuant to section 404 of the Clean Water Act, 26 U.S.C.

§1344(a); if the action may affect listed species or destroy

or adversely modify designated critical habitat, the Corps

must comply with the requirements of section 7. Other

actions by federal agencies that affect threatened and

endangered species on non-federal land, such as funding

for road and highway construction, registration of pesti-

cides, granting hydropower licenses, and even providing

federal flood insurance, must comply with the procedural

and substantive mandates of section 7 before the relevant

federal agency may finalize its action.

The number of section 7 consultations between the

ESA’s designated “expert” agencies — FWS and the Na-

tional Marine Fisheries Service (NMFS) - and other

federal agencies whose actions may affect listed species

or critical habitat provide a good gauge of the importance

of section 7’s protections for threatened and endangered

species. FWS alone conducted over 300,000 formal and

informal section 7 consultations’ with other federal

* Regulations implementing section 7 provide for an exception to

the ESA’s statutory or “formal” process for consultation if a federal

agency proposing an action determines, with written concurrence from

FWS or NMFS, that its proposed action is not likely to adversely affect

any listed species or critical habitat. See 50 C.F.R. §402.14(b).

24

agencies during the years from 1998-2002. FWS, Consul-

tations With Federal Agencies, www.fws.gov/endangered/

consultations/consultations.pdf (visited March 14, 2007).

Since the consultation requirement is not triggered unless

a proposed federal action “may affect” listed species or

designated critical habitat, see 50 C.F.R. §402.14(a), the

large number of section 7 consultations that take place

each year indicate the correspondingly vast number of

federal actions that may affect conservation of threatened

and endangered species and their habitat. Moreover, all of

these consultations involve careful analysis of the impact a

proposed action is likely to have on listed species, and

many result in modifications to original proposals by

federal agencies in order to avoid or minimize adverse

impacts on these species and their habitat.’ Cumulatively,

therefore, the requirements of section 7 result in a huge

amount of analytical work on the impacts of a wide array

of activities on listed species, and they lead to many

actions that help prevert or at least slow erosion of the

nation’s biological resources.

Finally, from a scientific perspective, section 7 is

particularly crucial to species conservation efforts because

unlike the ESA’s prohibition against actions that “take”

protected species, the section 7 process embodies a more

" Federal agencies often modify their actions in order to reach a

finding that an action is not likely to adversely affect listed species or

critical habitat, thus allowing them to avoid section 7’s formal consulta-

tion process. See 50 C.F.R. §402.14(b). Moreover, biological opinions

that result from the “formal” consultation often contain “incidental take

statements” that must set forth “reasonable and prudent measures”

(and associated “terms and conditions”) designed to minimize the

_ impact of incidental take, i.e., unintended death or injury, to listed

species. 16 U.S.C. §1536(b)(4)(C iii) and §1536(bX4)(C)Gv).

25

precautionary approach to protecting biodiversity. Section

9 of the ESA, 16 U.S.C. §1538(a)(1)(B), forbids the “take”

of endangered species of fish and wildlife (and, under

applicable regulations, most threatened species), defined

to include such actions as killing or capturing individual

members of a species; it also bans activities that “harm”

protected species, including actions that actually kill or

injure listed species by significantly modifying or degrad-

ing habitat. Jd.; 50 C.F.R. §17.21; §17.31; and §222.102.

See generally, Sweet Home Chapter, Communities for a

Great Oregon v. Babbitt, 515 U.S. 687 (1995).* While these

prohibitions allow prosecutors to seek civil and criminal

penalties against those who have unlawfully taken pro-

tected species, they focus on after-the-fact penalties rather

than preventative conservation measures. It is possible for

federal agencies or interested third parties employing the

ESA's citizen suit provision to enjoin actions likely to

result in unlawful take of species in the future, but they

face a potentially steep burden of proof. For example, in

National Wildlife Federation v. Burlington Northern

Railroad Inc., 23 F.3d 1508 (9th Cir. 1994), the court

rejected arguments that a grain spill near railroad tracks

would continue to result in deaths to grizzly bears despite

the fact that accidents had previously occurred at the site.

The court asserted that showing a violation of section 9

requires “a definitive threat of future harm to protected

species, not mere speculation.” Jd. at 1512, n. 8.

The prohibitions Congress set forth in section 7 to

protect listed species, on the other hand, emphasize

preventing adverse impacts to biodiversity. Lawmakers in

* Endangered and threatened plants receive somewhat lesser

protections under section 9; see 16 U.S.C. §1538(b).

26

1973 characterized the ESA as the “institutionalization of

... caution.” TVA v. Hill, 437 U.S. at 178 (1978) (quoting

H.R. Rep. No. 93-412, pp. 4-5 (1973)). Section 7 takes a

precautionary approach to management of listed species

and their habitat by directing that federal agencies “in-

sure” that their actions are not likely to jeopardize these

species or destroy or adversely affect critical habitat. 16

U.S.C. §1536(a)(2). Uncertainty is a constant in science,

and there is a great deal we do not know about the biologi-

cal world around us, particularly involving imperiled

species. Section 7’s requirement that agencies analyze

their actions in advance, as well as its mandate that

federal actors insure against significant harm to protected

species and their critica] habitat, thus stands as one of the

most important provisions of federal law dealing with

biodiversity conservation.

C. Section 7’s emphasis on science favors in-

terpreting its prohibitions to apply to all

federal actions that are not granted an ex-

emption by the Endangered Species Com-

mittee.

Upon reading the entirety of section 7 of the Endan-

gered Species Act, one is left with the unmistakable

impression that Congress based its plainly-worded provi-

sions on a foundation of science. Decades ago, the great

naturalist Aldo Leopold observed that “[t]o keep every cog

and wheel is the first precaution of intelligent tinkering.”

A. Leopold, A Sand County Almanac at 177 (1949). Law-

makers heeded this sound advice in enacting the Endan-

gered Species Act, specifically noting that a cautious

approach to management of the nation’s biological resources

was “at the heart” of the law. H.R. Rep. No. 93-412, pp. 4-5

27

(1973). Section 7 in particular reflects this precautionary,

science-based approach to preventing extinctions. Several

factors demonstrate lawmakers’ unmistakable intent to

apply the substantive prohibitions of section 7(a2) to all

federal agency actions, save those expressly gry ated an

exemption: the plain language of this section of the stat-

ute, coupled with its emphasis on science; the exacting

scientific procedures set forth throughout the complimen-

tary provisions of section 7; and the inclusion of a detailed

exemption process that expressly allows only a high-level

policy body, after exacting consideration of both biological

and non-biological factors, to elevate non-scientific consid-

erations over the biological needs of a listed species in

specific instances.

Section 7(a)(2) employs the terminology and clear

language that science often uses to denote a high degree of

certainty. It directs federal agencies to employ the “best

scientific and commercial data available” in carrying out

their responsibilities ‘to avoid taking actions likely to

jeopardize listed species or destroy their critica] habitat.

16 U.S.C. §1536(a)(2). It also frames this mandate expan-

sively, providing that these prohibitions apply to “any

action authorized, funded, or carried out” by a federal

agency. Jd. (emphasis added). Moreover, as noted above,

Congress directed agencies to “insure” that their actions

are “not likely to” lead to the prohibited results. Jd. Law-

makers added the phrase “not likely to” to section 7 in

1979, but nonetheless explained that they still meant for

agencies to give listed species “the benefit of the doubt.”

H.R. Conf. Rep. No. 697, 96th Cong., Ist Sess. 12, re-

printed in 1979 U.S. Code Cong. & Admin. News 2572,

2576. Together, these elements of the law’s plain wording

indicate that Congress sought to enact into federal law

28

Aldo Leopold’s wise, science-based counsel: Guided by the

best science, do not allow any actions that threaten the

existence of imperiled species or the habitat that sustains

them.

Other provisions of section 7 that support its basic

substantive mandates to avoid federal actions that jeop-

ardize listed species or destroy critical habitat also reflect

a comprehensive, science-based approach to protecting

biodiversity. Prior to undertaking an action where listed

species may be present, a federal agency must perform a

biological assessment to identify species likely to be

affected by its action and determine the extent 2f those

effects. See 16 U.S.C. §1536(c)(1); 50 C.F.R. §402.12(a).

Agencies may not take steps toward completing a proposed

action that would foreclose options which would avoid

conflicts with conservation of listed species. See id. at

§1536(d). Moreover, the dominant procedural mechanism

of section 7 — consultation between agencies with expertise

in biodiversity conservation and those whose actions may

affect listed species and their habitat — reflects standard

practices in science, namely sharing of expertise and peer

review. Together, these procedural elements of section 7

also demonstrate Congress’ deliberate construction of an

analytical, cautious approach to proceeding with federal

actions that may affect threatened and endangered species

and their habitat. A reading of section 7 that exempts

whole categories of federal actions from the requirements

of section 7 would be inconsistent with this systematic and

scientific process.

Finally, prompted by this Court’s decision in TVA uv.

Hill, supra, Congress added to section 7 a distinct and

detailed process that allows a high-level policymaking

body to grant exemptions from the section’s otherwise

29

science-based mandates. See generally 16 U.S.C. §1536(e)

through §1536(p). This separate exemption process em-

phasizes the distinction between the comprehensive,

science-based requirements discussed above and the

specific circumstances under which designated officials

may consider non-scientific factors in deciding whether a

federal action may proceed notwithstanding its impacts on

protected species. Perhaps more significantly, it also

emphasizes lawmakers’ view of the gravity of a decision to

allow a federal action to proceed in the face of information

indicating that it would jeopardize a listed species or

destroy critical habitat. Only a Cabinet-level committee —

or the President within declared disaster areas - may

grant exemptions to the substantive mandates of section 7.

See id. at §1536(e); §1536(p). Moreover, the Endangered

Species Committee may grant exemptions only after a

series of exacting procedures, including public notice and a

formal adjudicatory hearing. See id. at §1536(g)(2)(B)(ii);

§1536(g)(4). Additionally, no exemption may be granted in

the absence of a biological assessment of the proposed

action’s effects on listed species. See id. at §1536(g)(3)(A)(ii).

This indicates that lawmakers were unwilling to allow

even individual federal actions to be exempted from

section 7 without first requiring scientific scrutiny of their

impacts on listed species.

Section 7’s exacting exemption process stands in stark

contrast to an interpretation of section 7 that would make

the substantive protections of this section inapplicable to

an indeterminate and potentially broad array of federal

agency actions. Rather than being carefully weighed by

high-ranking public officials, adoption of the position

advanced by Petitioners could permit decisions exempting

various federal agency actions from section 7 to be made

routinely by agency administrators and government

30

counsel. Moreover, these exemptions from the require-

ments of section 7 would necessitate no public notice and,

perhaps of more concern, would not require federal agen-

cies to consider or even identify projects’ impacts on

threatened and endangered species. These outcomes are

not consistent with the painstaking and narrow exemption

process that Congress added to section 7 in 1978 in order

to allow for careful consideration of exceptions to this

section’s key prohibitions. The exacting exemption process

in the statute accounts for the importance and potential

finality of a decision that can place the future of an imper-

iled species in doubt or even consign it to extinction. It is,

therefore, virtually inconceivable that lawmakers simul-

taneously intended to allow a host of so-called “nondiscre-

tionary” federal agency actions — which could lead to

similarly disastrous biological results — to proceed unregu-

lated by the ESA.

Ill. CONCLUSION.

For the foregoing reasons, Amici respectfully request

that this Court affirm the decision of the Ninth Circuit

Court of Appeals.

Respectfully submitted,

DANIEL J. ROHLF

PACIFIC ENVIRONMENTAL ADVOCACY

CENTER

10015 S.W. Terwilliger Blvd.

Portland, OR 97219

(503) 768-6707

March 27, 2007 Counsel for Amicus Curiae