By: Jessica Roberts
The Endangered Species Act (ESA) is perhaps one of the most important laws for protecting imperiled plants and animals. Not only does it establish a framework for identifying and listing threatened and endangered species, but it imposes stringent protections for them. In theory, the ESA’s protections apply to all threatened and endangered species. In practice, however, these protections do not extend equally. This disparity is perhaps most apparent in the practices of listing species and funding efforts to protect them.
Under the ESA, a species must be listed as either threatened or endangered to receive protections. For a given qualifying species, the Fish and Wildlife Service and National Marine Fisheries Service can issue an official proposal to list the species or declare the listing “warranted but precluded.” In 2011, a study compared the animals listed on the IUCN Red List and those listed as endangered or threatened under the ESA. While IUCN-listed species in all categories were under-recognized by the ESA, species in some categories were recognized less than others. For mammals, the study found 50% under-recognition. For amphibians, 80% were under-recognized, and for invertebrates, under-recognition ranged from 88.9-95.2%.
Funding for listed species has followed a similar pattern. In 1996, researchers noted a “spending preference to the ‘higher’ animals in the following order: mammal-bird-fish-reptile-amphibian.” Plants did “not even make that list,” despite currently comprising over one-third of all listed species. For endangered animals such as Texas Blind Salamander, Alabama Cave Fish, and Sand Skink, less than $10,000 was spent. In contrast, agencies have spent over $30 million on protecting one species alone: the Bald Eagle. Cumulatively, “half of all spending on endangered species preservation” as of 1998 went towards protecting only ten species. There are over 2,000 species currently listed as endangered or threatened.
One reason for this disparity is the sheer number of imperiled species relative to limited agency capacity to review and fund their protection. According to one estimate, “[i]t would have taken the seven agency listing experts 500 years to review all of the 20,000 candidates proposed for the list in the first two years that the ESA was in effect.” Compounding this problem is the fact that the number of imperiled species keeps growing, and as it does, the cost of protecting them grows as well. Given the agency’s budget and resources, it is simply not possible to protect all threatened and endangered species equally, if at all.
This impossibility begets a choice: what species are worth agency efforts to save? Is it those species that can rally the most political support, or provide the most ecosystem services, or those that simply present the least burden to us in protecting? There are no easy answers to these questions. However, with up to one million species at risk of extinction worldwide, they are important questions to ask.
Image from: National Geographic
 The Endangered Species Act: A Wild Success, Ctr. for Biological Diversity, https://www.biologicaldiversity.org/campaigns/esa_wild_success/(last visited Nov. 4, 2020).
 John Copeland Nagle, Playing Noah, 82 Minn. L. Rev. 1171, 1193 (1998). However, the ESA does make some distinctions as to what protections apply to what species. For instance, “[p]lants and insects receive less protection than mammals, fish, birds, and reptiles.” Id.
 See id. at 1193-99.
 Listing and Critical Habitat Overview, U.S. Fish & Wildlife Serv., https://www.fws.gov/endangered/what-we-do/listing-overview.html (last updated Jun. 10, 2020).
 “The U.S. Fish and Wildlife Service is “responsible for protecting land animals, plants, and freshwater fish.” The National Marine Fisheries Service is “responsible for protecting marine species.” Listing Species Under the Endangered Species Act, Ctr. For Biological Diversity, https://www.biologicaldiversity.org/programs/biodiversity/endangered_species_act/listing_species_under_the_endangered_species_act/index.html(last visited Nov. 4, 2020) [hereinafter Listing Species].
 In the latter case, “the species’ protection is put on the shelf, supposedly in favor of higher-priority listings, and the species waits on the “candidate list” in some cases for years.” Id.
 This list “classifies species as imperiled (Critically Endangered, Endangered, or Vulnerable), not imperiled (Near Threatened or Least Concern), extinct (Extinct, Extinct in the Wild), or Data Deficient.” J. Berton C. Harris et al., Conserving imperiled species: a comparison of the IUCN Red List and U.S. Endangered Species Act, 5 Conservation Letters 64, 64 (2011).
 Id. at 67.
 Andrew Metrick & Martin L. Weitzman, Patterns of Behavior in Endangered Species Preservation, 72 Land Econ. 1, 11 (1996).
 Nagle, supra note 3, at 1197; See also Listing Species, supra note 6.
 Nagle, supra note 3, at 1198.
 These ten species include Bald Eagles, Northern Spotted Owls, Florida Scrub Jays, West Indian Manatees, Red-Cockaded Woodpeckers, Florida Panthers, Grizzly Bears, Least Bell’s Vireos, American Peregrine Falcons, and Whooping Cranes. Id.
 Listing Species, supra note 6.
 Nagle, supra note 3, at 1185.
 Id. at 1183.
 Stephen Leahy, One million species at risk of extinction, UN report warns, Nat’l Geographic (May 6, 2019), https://www.nationalgeographic.com/environment/2019/05/ipbes-un-biodiversity-report-warns-one-million-species-at-risk/.