ESA vs. NEPA
By: Amanda Artz
The Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) were both groundbreaking statutory decisions passed during a time of growing environmental awareness and concern. Although both laws had big goals, the clarity of how to reach them was far from crystalline. Because of this, the future of the environment and the wildlife that depend on its health is still in limbo, and unless severe changes are made to both laws, the future looks grim.
The Endangered Species Act’s primary goal is to protect species by “prohibiting the ‘take’ of endangered or threatened species on both public and private lands and to extend the law’s protection to species beyond those directly threatened by hunting and trade” (Watt et al, pg 355). Take is defined in the law as any action that would “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a species (Watt et al). Because of these new policies, it was thought that thousands of species would be saved from extinction and remain in stable, healthy populations for many years to come.
The National Environmental Policy Act’s primary goal is to protect the environment by requiring federal agencies to consider the environmental impact of every major activity they undertake (Kusbasek). If an activity is found to have a significant impact on the environment, an Environmental Impact Statement (EIS) must be prepared. This time-consuming process was thought to make agencies seriously consider their projects, and hopefully design them so that they could avoid the EIS process altogether. This is possible by preparing a Finding of No Significant Impact (FONSI), or a mitigated FONSI, in which if the project was found to have significant impacts, those impacts could be mitigated so they lessen the overall negative effects on the environment (Kusbasek).
Although both of these laws have broad reach and tough tactics (Watt et al), they fail at truly achieving their primary goals. Under Section 10 of the ESA, an “incidental take permit” can be issued, allowing take of a species to occur. Although completion of a Habitat Conservation Plan (HCP) is required in order for the permit to be granted, it is still a loophole in the law and the species protection process. Completion of an HCP does not necessarily mean that said HCP will actually positively affect the remaining population/habitat of the species being taken. As for the NEPA process, once an EIS is completed and it is determined that a project will have significant impacts on the environment, the project can still be executed. So in the end, NEPA doesn’t truly protect the environment, it just makes the lead agency consider it.
Big changes are necessary to make these laws more effective in protecting the environment. For the ESA, no take should be permitted and there should be no issuance of incidental take permits, regardless of whether an HCP is completed or not. The definition of take should also be changed to include habitat destruction. As for NEPA, any project that is found to have significant impacts on the environment should not be completed until the lead agency sufficiently mitigates the impact or the project in such a way that no significant impact on the environment would occur. These ideas might not seem politically realistic, but to be honest, nothing that can truly get anything done really is. By continuing to make middle ground, incremental decisions we will continue to have ineffective policies. Both the ESA and NEPA are reactive policies, and until we pass policies that are much more proactive, the environment and wildlife will continue to suffer.
Watt et al, “Reflections on Preserving Ecological and Cultural Landscapes”.
Kusbasek, “Environmental Law”. Prentice Hall. 2007.
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