The origins of the Endangered Species Act

Humpback whales may be coming off the endangered species list soon: federal officials are expected to announce a decision within the next few weeks.

But regardless of the decision, one thing is clear: without whales and other marine mammals, there might not even be an endangered species list.

In the first of a series exploring humpback whales and the Endangered Species Act, KCAW reporter Rachel Waldholz and University of Alaska Fairbanks PhD student Ellen Chenoweth explain how one of the nation’s most enduring environmental laws emerged from the office of one of its least revered presidents.

Downloadable audio.

There are many ways to trace the origins of the Endangered Species Act. One way starts with this speech:

Nixon: The great question of the seventies is, shall we surrender to our surroundings, or shall we make our peace with nature and begin to make reparations for the damage we have done to our air, to our land, and to our water? [Applause]…Through our years of past carelessness we incurred a debt to nature, and now that debt is being called.

That’s President Richard Nixon, laying out an ambitious environmental agenda in his 1970 State of the Union speech.

In his five and a half years in office, Nixon signed the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Marine Mammal Protection Act and, in 1973, the Endangered Species Act — among others. He created the Environmental Protection Agency and established the National Oceanic and Atmospheric Administration.

For those who associate the Nixon Administration with Watergate and Vietnam, this is a little surprising.

KCAW: Richard Nixon is responsible for quite a few of our most powerful environmental laws…that’s just sort of stunning.

Talbot: Well, and it would be more so if you knew him [Laughs].

That’s Lee Talbot. Now a professor of environmental science and policy at George Mason University in Virginia, he was one of the architects of the Endangered Species Act.

“President Nixon was not, what one could call an environmentalist,” Talbot said.

But he was a pretty good politician. Nixon recognized that there was a groundswell of public support for environmental action.

In the late 1960s and early 1970s, environmental issues were suddenly in the news. Rachel Carson’s book Silent Spring had been published in 1962. By the mid-1960s, industrial whaling had brought the great whales to the brink of extinction. In 1969, there was the Santa Barbara Oil Spill, one of the largest in U.S. history. That same year, Ohio’s Cuyahoga River caught fire, becoming a national symbol of polluted waters. The first Earth Day was organized in 1970.

“Here’s all the constituents requesting government to do something about the environment,” Talbot said, “And a great majority of people in Congress didn’t really know what environment was!”

Nixon gave his staff wide latitude to pursue environmental policy — and, Talbot said, they ran with it.

Talbot was a senior scientist with the newly-created president’s Council on Environmental Quality. He knew he wanted to pass a major endangered species law. But he decided to push first for what became the Marine Mammal Protection Act. This is the law that made it illegal to hunt or harass marine mammals, including whales.

“It was evident to me that the public didn’t really connect with, say, a cod, but they could get excited about a marine mammal,” Talbot said. “So it seemed to me that we ought to make a major push on whales…and then hopefully go beyond that later on.”

The bill wasn’t popular with either the commercial fishing industry or federal agencies — but the main obstacle was the Department of Defense.

Sperm whale oil could withstand high temperatures and pressure, and in the late 1960s, the military was still using  the oil in its weapons systems. And so a potential ban on whaling — and on the import of whale products — became literally an issue of national security.

The military didn’t think it could replace sperm whale oi, but Talbot thought differently. He reached out to contacts at the major chemical companies, and then arranged a meeting with representatives of the Joint Chiefs of Staff. He described the conversation at that meeting, in a room below the White House:

Talbot: I said, well, is it true that it’s not possible to produce this oil, lubricants with these characteristics? And they both said, ‘No, no, no, we can do it.’ And I said, how long would it take you to make the adequate amounts, and one of them said, ‘Mm, two months.’ And the other said, ‘Mm, six weeks’…! So that took care of that [laughs].

The Marine Mammal Protection Act passed in 1972.

On to the Endangered Species Act. Talbot and his colleagues had learned from earlier endangered species laws how easily they could be circumvented. They were determined that this time, the law would have teeth. When the draft bill emerged from the federal agencies, he worked with the office of Rep. John Dingell, Democrat of Michigan, to strengthen it.

Talbot: What we did was take the administration bill, and [laughs] I went through the whole bill and took out all of the weasel words. So, for example ,where it said the Secretary ‘may’ take some action, I changed ‘may’ to ‘shall.’ And when it said ‘insofar as practicable,’ I just took that out.  And the net result is a remarkably tough piece of legislation.

The Endangered Species Act passed the House 390-12. It passed 92-0 in the Senate. Alaska Senator Ted Stevens voted for it. Congressman Don Young was a freshman representative at the time, and he voted for it.

Roman: And many legislators were surprised when they found that it did protect all species, gave all species the right to exist..and that was what made it so radical and so important.

That’s Joe Roman. He’s a conservation biologist who has written extensively on the Endangered Species Act.

What makes the Endangered Species Act so powerful, Roman said, is its protection for habitat. The U.S. has no major habitat protection law, and the Endangered Species Act has become that law.

“Because the law says you have to protect the species and the ecosystem it depends on — you can’t just keep them in zoos,” Roman said. “That’s really the power of the ESA right now, is those critical habitats around the country.”

Talbot said that the other big innovation, first in the Marine Mammal Protection Act and then in the Endangered Species Act, was including what’s called the precautionary principle.

At the time, if scientists said that harvesting a particular species was driving it to extinction, the burden was on scientists to prove it.

“So what I did was re-write it backwards,” Talbot said. “So that the onus was on those who wish to harvest to prove that it won’t threaten [the species].”

The resulting law was incredibly ambitious. But the big question is: has it worked?

“If you judge the success of the ESA by the amount of species that have recovered, it’s not looking so good,” Roman said.  “There are only about 30 species, of the thousands that have been listed, that have recovered and been removed from the list.”

But, he said, there’s another way to look at it. “If you see the ESA as a law that’s intended to prevent extinction, it’s been successful, in that, estimates are that the extinction rate since the passage of the act declined by tenfold.”

Talbot agrees. “It’s true that they’re still on the list,” he said. “But they’re not extinct!”

And for that, we can thank Richard Nixon.