The Endangered Species Act (16 U.S.C. §1531, et seq.) (ESA) is America’s most powerful wildlife conservation and protection law. The ESA is administered by two federal agencies, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration. Its primary purpose is to conserve endangered and threatened species and their ecosystems.
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The ESA designates a species as “endangered” when it “is in danger of extinction throughout all or a significant portion of its range.” (16 U.S.C. § 1532(6)). A species may be endangered by the existence of any of five factors: the present or threatened destruction, modification or curtailment of its habitat or range; overutilization for commercial, recreational, scientific or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its existence.
The ESA requires that all determinations relating to whether a species is affected by any of the five listing factors to be made “solely on the basis of the best scientific and commercial data available.” (16 U.S.C. § 1533(b)(1)(A)). Determinations must “tak[e] into account those efforts, if any, being made by any state or foreign nation … to protect such species” by protection of habitat and food supply, or by any other conservation practice within any area under its jurisdiction. (16 U.S.C. § 1533(b)(1)(A)).
When a foreign species is listed as endangered, protection under the ESA occurs by prohibiting imports unless they enhance the propagation or survival of the species or are for scientific purposes. (16 U.S.C. § 1533(b)(1)(A)). Furthermore, Section 8 of the ESA provides for “international cooperation” in the conservation of foreign, listed species, and listing a foreign species heightens global awareness about the importance of conserving the species.
After a petition is filed, the U.S. Department of the Interior has 90 days to determine whether there is “substantial scientific or commercial information indicating that an endangered listing may be warranted.” (16 U.S.C. § 1533(b)(3)(A)).
Within a year of receiving the petition, the department must determine whether listing is warranted. (16 U.S.C. § 1533(b)(3)(B)). If listing is warranted, the department will publish in the Federal Register a proposed rule to list the species under the ESA and request public comments on the rule. The department will consider these comments and, within another year, make a final decision on whether to list the species under the ESA. (16 U.S.C. § 1533(b)(6)(A)).