What makes the ESA so effective? At its core, it protects imperiled species by listing them as threatened or endangered—designations that come with a suite of protections that give the act its teeth. The ESA’s critical habitat provision requires federal agencies to protect the lands and waters species need to survive and recover. When implemented correctly, this landscape-level approach helps ensure the survival of listed species and can help prevent the decline of other species that depend upon that habitat. The ESA also includes a consultation provision that requires federal agencies to avoid jeopardizing species or harming their critical habitat in any actions they fund, permit, or carry out. And of course, the ESA contains a citizen-suit provision that allows individuals or organizations to sue to enforce the provisions of the law.
The ESA is the engine that has driven many of Portland Audubon’s conservation wins. We petitioned to list the Northern Spotted Owl as threatened under the ESA in 1990, which led to the first significant protections of old-growth ecosystems under the Northwest Forest Plan. We achieved improved floodplain protections as a result of a 2011 lawsuit that found that our current floodplain regulations threaten the existence of federally listed salmon and steelhead, as well as Southern Resident Orcas that depend on salmon for survival. After protections for the Red Tree Vole were denied, we successfully sued in 2021 to achieve reconsideration of that decision. And we are in ongoing litigation to protect Streaked Horned Larks as endangered.
The Endangered Species Act of 1973 was signed into law by Richard Nixon and passed by a vote of 92-0 in the Senate and 355-4 in the House. As I write this, Kevin McCarthy has just been ousted as Speaker of the House—following a vote initiated by hard-right members of his own party. Imagine this Congress trying to pass a law as revolutionary as the Endangered Species Act today. I’ll pause while you have a good laugh. Truly, reflecting on our current state of affairs makes the bipartisan passage of the Endangered Species Act even more remarkable.
We are in the midst of a biodiversity crisis in which nearly 40% of all species face extinction by the end of the century. I mention this not so that you will spend the rest of the day staring into the abyss contemplating the fragility of our existence on earth, but rather to highlight the continued importance of the ESA in protecting and conserving imperiled species and their habitats.
The ESA is, by far, our nation’s most effective law for protecting wildlife and plants in danger of extinction. Yet, despite its success and continued popularity, the ESA itself is under threat from industry groups and other anti-wildlife interests. Over the last two decades the law has been chronically underfunded and subjected to relentless attacks in the form of so-called tweaks, updates, reforms, or modernizations—all of which are intended to undermine and weaken its core principles. Portland Audubon is proud to have joined conservation partners across the country in asking President Biden and his administration to uphold and protect the ESA, and take bold action to stem the loss of biodiversity and halt the global extinction crisis.
While the federal Endangered Species Act is rightly in the spotlight this year, it’s also a good time to consider the role of our very own Oregon Endangered Species Act (OESA), which is implemented and upheld by the Oregon Department of Fish and Wildlife. The OESA was adopted in 1987 and its threatened and endangered species lists include all native species listed under the federal ESA at that time. However, the list has remained largely stagnant, and the law itself has often been overlooked as a meaningful tool to achieve species recovery. It was the successful effort by Portland Audubon and our conservation partners over a period of seven years to reclassify Marbled Murrelets from threatened to endangered that signaled a shift in this dynamic.
Let’s get the not-so-good stuff out of the way. The OESA applies only to land owned or leased by the state, or where the state has a recorded easement. Under the law, the Oregon Fish and Wildlife Commission is vested with the authority to add species to the list, but it has never affirmatively done so. The list is supposed to be reviewed every five years, but those reviews are sporadic, at best. If a species is listed, the state develops survival guidelines to ensure the survival of individuals of the listed species. If a species is listed as endangered, the state consults with other state agencies to develop endangered species management plans to identify the role that state land plays in the conservation of the species. However, even if all of this happens, the law doesn’t have any enforcement mechanisms.
I know. I know. But there’s a bright side. While considerably weaker than its federal counterpart, the OESA is important because the state possesses local knowledge and expertise critical to addressing biodiversity loss. The OESA can be used to fill in gaps in protection, provide additional resources to federally listed species recovery, and promote regional and ecosystem-wide cooperation. Our experience reclassifying Marbled Murrelets as endangered helped us understand the workings of the law so that we can more effectively advocate for protections for other species. And it helped us identify areas where the law could be reformed.
At a minimum, the state must conduct its long overdue update of the list of threatened and endangered species. Oregon should also consider reforms to the law to designate critical habitat, require recovery plans, update penalties for take, explore opportunities for conservation easements with private landowners, and consider the cumulative impacts of climate change on species when making listing, delisting, or reclassification decisions. It’s also imperative that the state understand and work to enhance relationships and cooperation with Tribal governments regarding species recovery.
As this anniversary year draws to a close, it’s a perfect time to reflect upon the conservation achievements we owe to the federal ESA, recommit to advocacy to keep the law strong and supported with robust funding, and get creative about how our state laws can be leveraged and reformed. The ESA’s first 50 years were a great success, but we can’t take it for granted. Our most imperiled species need a strong ESA for the next 50 years, and beyond.