Reflections on 40 Years of the Endangered Species Act

Don Barry, Executive Vice President

Don Barry, Defenders of Wildlife Executive Vice President

Last week, I participated in one of the most enjoyable and illuminating environmental conferences that I have attended in the last 20 or 30 years.  The students at the University of Florida law school organized and hosted a riveting two-day conference on the 40th anniversary of the Endangered Species Act (ESA) and it resulted in a reunion of some of the legal and scientific pioneers who helped shaped the ESA into what it is today: the strongest federal environmental law in the country.  I was asked to be one of the opening keynote speakers, having worked on the ESA for more than 39 years in a variety of positions in the Executive Branch, on Congressional staff and with the non-profit conservation community.

When I arrived at the Department of the Interior in 1974, right out of law school, and started working as a career lawyer for the U.S. Fish and Wildlife Service (FWS), the ESA was only a few months old, having been enacted with overwhelming bipartisan support in Congress in December of 1973.  Once on board at Interior, I had the incredible good fortune of being assigned the task of helping FWS draft the core implementation regulations that to this day guide the Service’s methods for protecting wildlife with the prohibitions and inter-agency consultation sections of  the ESA.  Given that 2013 is the 40th anniversary of the ESA, my part at the law school conference was to look backwards and describe the early years under the ESA, and then take a look at where things stand today.

The snail darter brought the ESA to national attention with the Supreme Court Case Tennessee Valley Authority v. Hill
(c) USFWS

There were several things that made this conference extraordinary from my perspective.  First was the chance to listen to such iconic early ESA litigators like Zyg Plater and Pat Parenteau, now both law professors at New England law schools.  Zyg was the attorney that took the famous snail darter case against the Tellico dam all the way to the Supreme Court where he won a resounding victory. His case set the precedent that federal agencies MUST avoid putting endangered species in jeopardy of extinction.  Pat was similarly involved in some of the earliest, most important court victories under the ESA that reaffirmed the obligations of federal agencies to avoid actions that would jeopardize such iconic species as endangered whooping cranes and Mississippi sandhill cranes.  In addition to Zyg and Pat, there were other riveting keynote presentations made by some of the country’s most renowned conservation biologists like Dr. Carl Safina and Dr. Reed Noss.

But the most rewarding part of the conference was getting the chance to spend time, as brief as it was, with the law students who had spent so much of their time organizing and hosting the event on top of their already crushing workloads at school.  When I asked a number of the conference organizers what had motivated them to take this heavy responsibility on, and what had attracted them to the ESA, the answers were always the same:  that they had grown up loving nature and wanted to apply their developing legal skills to help preserve this country’s disappearing natural heritage.  To a person, despite a discouraging job market and crushing levels of debt coming out of law school, they hoped that they would be able to embark on a career of environmental law.

I am now in the twilight of my long and rewarding professional career and I often wonder – and sometimes worry – about who will eventually step up and become the new advocacy voices for our voiceless imperiled species, once veterans of past ESA battles like Zyg and Pat and Carl and Reed and I are gone?  My time spent among the law school students at the University of Florida has now given me my answer: A whole new generation of advocates is ready – they are eager, they are committed, they care. Whether as future citizen activists in their communities or as attorneys for the environmental community, the Florida law school students and other wildlife activists like them across the country are ready to take on the challenges of the next 40 years of the ESA, and to leave their mark for conservation.  This issue is ultimately about this country’s values as we stand at a conservation crossroads: one road leads to extinction, the other leads to recovery, and the choice that needs to be made is so painfully clear. It is reassuring to me – and should be to all who care for the future of imperiled wildlife – that the values that enabled us 40 years ago to commit so fully to protecting wildlife, are still present in today’s young men and women, and they will ultimately find their way to help this country once again make the right choice.