Outline

1. Outline US environmental law The decade of the environment NEPA Magnuson Fishery Conservation and Management Act MMA CWA ESA

2. National Environmental Policy Act of 1969 • What does NEPA require? • NEPA should: • 1. fulfill the responsibilities of each generation as trustee of the environment for succeeding generations • 2 assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings • 3 attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences • 4 preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice • 5 achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities • 6 enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. • (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

3. NEPA • EA vs EIS • FONSI • NOI • DEIS • FEIS • ROD

4. Class discussion • How is it unique among environmental legislation? • Why was Calvert Cliffs vs the Atomic Energy Commission an important legal case? • What are the weaknesses of NEPA?

5. Magnuson-Stevens Fishery Conservation and Management Act (1976) • Promote fisheries and preserve marine resources • 8 regional fisheries management councils make management plans to regulate fishing of stocks • Phased out foreign fishing in US waters • 1996 amended to strengthen • 2006 reauthorized • Develops conservation plans for marine mammals • NOAA Fisheries • Regulatory power • Efforts should be made to protect habitat • Amended 1994 Marine mammal protection act 1972

6. Clean Air Act 1963, 1970, 1977, 1990Clean Water Act 1972, 1977, 1987 Regulatory Mitigation

7. The Endangered Species Act (ESA) Science, Politics, and Economics

8. Overview • History of ESA • Objectives of the ESA • Snail Darter Case Study • Current Status of Listed Species • Criticisms of the Act

9. History of ESA • 1966 ES Preservation Act Authorized Interior Secretary to: • Compile a list of Fish and Wildlife facing extinction • $5 million/yr to buy habitat • Requested other federal land managers to preserve habitat “insofar as is practicable and consistent w/ purpose”

10. History of ESA • 1968: E.S. list published with 142 species • 1969: ES list expanded to include species outside of US and prohibited importation • Many were frustrated by “practicable” loophole in the act and revisions were drafted

11. 1972 Nixon sent a bill to Congress • Became the “feel good” legislation of the year • passed it unanimously in Senate and only 12 in House voted against • ESA became law Dec. 28, 1973

12. ESA of 1973 • Goal “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, {and} to provide a program for the conservation of such endangered and threatened species” • Species is defined to include “any subspecies of fish or wildlife or plants and any distinct population segment of any species of vertebrates or wildlife which interbreeds when mature”

13. Listing under the U.S. Endangered Species Act • “The secretary shall make determinations required by subsection (a)(1) [listing decisions] solely on the basis of thebest scientific and commercial data availableto him after conducting review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation . . .” ESA 4(b)(1)(A) • Became Federal office to “take” species on public or private land • Difference in protection of plants vs animals

14. Endangered: “ In danger of extinction throughout all or a significant portion of range” Threatened: “likely to become endangered in foreseeable future”

15. Recovery Plans • The USFWS should determine steps necessary to bring listed species to the point at which they may be delisted • A description of site-specific management actions to achieve goals • incorporate measurable criteria which will lead to delisting • Estimates of time and cost required to achieve plan’s goals • Define critical habitat • Carry no regulatory authority

16. The Reality of the Power of the ESA • TVA vs. Hill 1978 • Tellico Dam construction begins in 1966 • 1971 Sued due to inadequate EIS • 1974 the Snail darter (Percina tanasi) was discovered • 1975 Snail darter listed as endangered • EIS concluded the Dam would destroy habitat • Dam construction continued, assumed that it was unreasonable to stop

17. The Reality of the Power of the ESA • Trial made it to supreme court • Dam was 3/4 finished - $78 million • General Attorney Griffin Bell defends in court

18. The Reality of the Power of the ESA • Justice John Paul Stevens replies: “Mr. Attorney General, your exhibit makes me wonder. Does the Government take the position that some endangered species are entitled to more protection than others?” • Bell responds quietly - “No” • Vote? • ESA amended to create “God Squad”

19. Species listing 1967 – 2002 (Norris 2004)

20. Geography of Endangerment Number of Listed Species 61-312 21-60 2-20

21. Class Discussion • List weaknesses of the ESA

22. Mann and Plummer 1995Noah’s choice They suggest it is unrealistic and too costly to prevent extinction of all species in the US. Thus, we should play “Noah” and decide which species to save. Do you agree?