Interior and Commerce Department agencies are to determine which species should be listed; individuals may petition the agencies to have species designated. The Fish and Wildlife Service, in the Interior Department, deals with land species; the National Marine Fisheries Service, located in the Commerce department, has jurisdiction over marine species. Any 'interested person' may petition the Interior Secretary to list a species as either endangered or threatened. The 1978 amendments to the ESA created a Cabinet-level committee to resolve conflicts between species protection and federal projects -- labeled the 'God Squad' or the 'Extinction Committee'.
The committee can authorize projects to proceed even if they jeopardize the continued existence of a species if five of seven members decide that protection interferes with 'human' needs. The specific criteria to be used in exempting actions from the act include: (1) there are no reasonable or prudent alternatives to the agency action; (2) the benefits of the agency action clearly outweigh the benefits of alternative courses of action which would preserve the critical habitat of the species; (3) the action is in the public interest and of regional or national significance; (4) neither the agency nor the exemption applicant has made irreversible or irretrievable commitments of resources; and (5) the agency establishes reasonable mitigation and enhancement measures, including habitat acquisition and improvement, to minimize the adverse effects of the action on the species' critical habitat.
In March 1993, Interior Department Secretary Bruce Babbitt launched the National Biological Survey, an attempt to map the animal and plant species in the country and 'produce a constantly evolving, computerized picture of the nation's biological diversity that adjusts to changes in land use, to ecological changes, and which must with the passage of time become more sophisticated and more detailed as knowledge of species and ecosystems grows'. When the Republicans gained control of Congress in the 1994 election, amending the Endangered Species Act was their top environmental policy goal.
House leaders established an Endangered Species Task Force which held hearings throughout May 1995, and led to a bill which sought to eliminate species recovery as the primary goal of the act, give more opportunities for states and landowners to be involved in decisions related to endangered species, create biodiversity reserves, give more leeway to landowners, and reimburse private property owners for loss in land value resulting from endangered species regulation (104th Congress). The House Resources Committee approved the bill in October, but the House leadership subsequently refused to bring the bill to the floor for a vote in light of public perception that Republicans were attacking the environment. Senate proponents of a new Endangered Species Act worked throughout 1997 and 1998 to try and craft a bipartisan bill that would give more protection to critical habitats, create incentives for private landowners to protect endangered species, and provide more certainty in the law for developers and land owners, but Congress adjourned in 1998 without reauthorizing or amending the law, and as of the summer of 2000, has still not done so.
Policy: Internationally and Nationally
The United States was a global leader in the early development of policies and regulatory programs to protect environmental quality. Until 1970, environmental law in the U.S. was largely a set of common law principles of nuisance, trespass, and negligence. A few states had passed environmental statutes but they were for the most part weak and non-binding. Nuisance law permitted property owners to seek damages through the courts against polluters who caused property damage. Trespass law could be used to remedy dumping of garbage onto the property owner's land. Negligence suits could be filed against parties that had a duty to not release dangerous substances, breached the duty, and caused harm to others.
In less than two decades, however, environmental law evolved from a local government responsibility into a complex system of national environmental regulation.
On 1 January 1970 President Nixon signed the National Environmental Policy Act, which required the federal government to assess the environmental consequences of every major action it undertook. Nixon's action initiated two decades of environmental activism. The Environmental Protection Agency (EPA) was created in the same year; subsequent years saw the passage of major environmental legislation including the Clean Air Act, the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Many of these acts were strengthened throughout the 1980s, culminating in the Clean Air Act amendments of 1990. These statutes include environmental standards, procedures for formulating rules and regulations, and deadlines for agency implementation and regulated industry compliance. Environmental regulation is built on a fragmented and complex statutory base of nearly a dozen major laws administered by the EPA, and dozens of additional statutes. An intricate infrastructure of agencies, legislation, regulations, and enforcement mechanisms are in place for protecting the environment. Federal, state, and local governments, regulated industry, the scientific community, and public interest groups all have invested significant resources in addressing the challenges of assessing environmental and health risks and enforcing laws and regulations.
US environmental law revolves around a complex system of shared authority and co-operative agreements between the federal government and the states, largely in response to the complexity of environmental programs, the tremendous numbers of sources of pollution to be regulated, the desire to permit some tailoring of regulation to local conditions, and the inherent authority of states to regulate environmental conditions. The federal government's primary function is to establish policy, to develop national standards, to ensure that states enforce the laws and regulations in a way consonant with national standards, and to provide some funding of compliance costs. Most federal environmental statutes authorize states to issue permits and to enforce regulations if their programs and standards are approved by the EPA. States have the primary responsibility to grant permits, to inspect facilities, and to initiate enforcement actions against violators.
Environmental laws affect industrial and commercial activity in at least six ways: (1) they require information about the release of certain toxic chemicals into the environment; (2) they establish a system of pre-manufacturing approval for certain chemicals; (3) they require the treatment of emissions to air and water and the monitoring of the disposal of hazardous wastes; (4) they mandate the use of certain control technologies; (5) they create a special fund to clean up abandoned hazardous waste sites and provide standards to guide the remediation efforts; and (6) they prohibit some activities from taking place.
The Basic Dimensions of Sustainable Development
The political conflict over environmental law and regulation has been so divisive and time consuming that it has precluded the nation from moving towards the next generation of environmental laws that might incorporate the idea of sustainable development. The Clinton administration has given some attention and resources to sustainable development, primarily through the President's Commission on Sustainable Development, and both the President and particularly the Vice-President have been involved in its activities. Much of the story of sustainable development in the United States lies in the work of the commission and the efforts by the Clinton administration to pursue its agenda.
The U.S. Environmental Protection Agency has launched numerous initiatives aimed at 'reinventing' government -- making regulation more efficient and effective, engaging regulated interests in regulatory policy making, and integrating diverse regulatory programs -- that are consistent with many of the ideas underlying sustainable development. The U.S. Agency for International Development has endorsed sustainable development as one of the guiding principles for foreign aid. Moreover, many state and local governments have initiated sustainable community efforts.
However, sustainable development, like any other major policy commitment, ultimately requires the support of Congress and strong, effective legislation and the greatest failure to engage with the idea of sustainable development has been here. The Republican leaders in Congress have virtually ignored the idea of sustainable development and the United States' commitments made at the Rio Earth Summit. For them sustainable development is simply a problem for other countries to worry about, particularly developing countries. The hostility many congressional leaders have to international commitments, along with their opposition to environmental regulation, combine to create a major barrier to pursuing the idea of sustainable development in the United States.
Congress continues to debate the question of whether there should be more or less environmental regulation. Rather than asking more fundamental questions about how to balance and integrate economic growth and ecological sustainability, policy-makers are mired in efforts to defend or attack the regulatory system that has been in place since the 1970s. As a result, there is no strong commitment to sustainable development, and the nation is far from having in place a comprehensive strategy that integrates sustainability into environmental, social, and economic activities.
How We Can Develop With Sustainability
While Congress has resisted moving the debate over environmental regulation toward sustainable development, the Clinton administration has regularly argued that economic growth and environmental quality can be pursued together. The President, Vice-President, EPA administrator, and others rarely miss the opportunity to remind the…