Successful ESA Listing of Domestic and Foreign Species

The United States Congress enacted the Endangered Species Act (ESA) in 1973 to protect and recover species and the ecosystems upon which they depend. Both domestic and foreign species determined to be endangered or threatened... [ view full abstract ]

The United States Congress enacted the Endangered Species Act (ESA) in 1973 to protect and recover species and the ecosystems upon which they depend. Both domestic and foreign species determined to be endangered or threatened are required to be listed under the ESA. Of the 2328 species currently listed, 675, or 29%, are foreign species, including the African elephant, Loxodonta africana, and the African lion, Panthera leo. The listing process, however, can be lengthy and arduous, detrimental to the survival of the species. This study focuses on the “notice and comment” stage of the ESA rulemaking to examine why some proposed rules for listing are promulgated to final rules while others are not. The purpose of the study is to identify potential factors which influence/contribute to successful ESA rulemaking. For this study, successful ESA rulemaking is defined as the promulgation of a proposed rule to list to final rule. A preliminary review of 213 proposed rules published by Fish & Wildlife in the Federal Register from June 30, 2011 – January 20, 2017 identified eighty-six proposed rules to list. The Unified Agenda was used to identify the seventy-one proposed rules which achieved a published final action by January 20, 2017. Of these seventy-one proposed rules, fifty-seven were identified as promulgated to final rule and categorized as successful rulemaking under the ESA. Nine proposed rules were identified as promulgated to final rule with changes and five proposed rules were identified as withdrawn. Preliminary review of the latter fourteen rules identified the following potential factors for successful rulemaking under the ESA: solicited peer review input, new and/or more accurate species population information/data, public comment supported with new scientific information, new analyses of species threats by Fish & Wildlife agency reviewers, recent taxonomic changes, and number and political power of stakeholders involved. The ESA listing process can take years to reach the proposed rule stage. An understanding of the factors involved in final rule success is an important tool for achieving ESA protections for endangered and threatened species.