Endangered Species Act Turns 50: Can We Save Animals and Stop Climate Change, Too? - The Messenger

Endangered Species Act Turns 50: Can We Save Animals and Stop Climate Change, Too? - The Messenger
Texas Teen Accused of Killing Homeless Woman Offered to Pay Off Fast Food Workers Who Stopped Him From Fleeing: Prosecutors

Jonathan Lambert and
Dave Levitan

This story is the second in a series about the Endangered Species Act — landmark legislation that marks its 50th anniversary this month. Here's a link to the first story, which examined the act's remarkable success.

America’s Mojave Desert is one of the sunniest places on the planet. And in the era of climate change and the urgent need for renewable energy, where the sun shines, the solar panels will follow.

Over the past two decades, dozens of major solar power projects have been planned, permitted and built in the Mojave. But along the way, that development so critical to lowering greenhouse gas emissions repeatedly ran into a diminutive roadblock: the desert tortoise.

Shoebox-sized Gopherus agassizii is well adapted to desert life but struggles in an environment covered with solar panels and the roads, buildings and other infrastructure demanded by major energy development. During the early Obama administration years, “there were project applications literally covering the California Desert Conservation Area,” a Kentucky-sized chunk of the state where the tortoise thrives, said Ileene Anderson, a senior scientist at the non-profit Center for Biological Diversity. “And there was no planning in place that anticipated that. Personally, I felt like I was having a nervous breakdown.”

The tortoise, though, is listed as “threatened” under the Endangered Species Act, allowing conservationists to challenge a number of the solar projects. Those battles are a prime example of a complicated and ongoing conflict between efforts to save individual species and to slow the greatest threat to all species in the U.S. and globally: climate change.

The ESA, signed into law 50 years ago this month by President Richard Nixon, has proven to be the nation’s most impactful environmental laws, keeping 99% of the thousands of protected species from extinction. So what happens when that law and the generally agreed-upon ideal of keeping plants and animals alive runs into other environmental imperatives? Climate change is an accelerationist scourge, rapidly helping usher in a global mass extinction — surely the solar panels need to take priority over a plodding reptile that gets confused if you move it a few miles down the road?

“Those conflicts are particularly interesting because they seem to force us to choose between two things we'd like to have, which is to retain the biodiversity that currently exists on the planet, and also to minimize the suffering of people from climate change,” said Robert Fischman, an environmental law professor at Indiana University. “But I don't think that's a choice we have to make very often. The United States is a country with tremendous natural resources. We're also the richest country on Earth. We can do both.”

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ENERGY DEVELOPMENT has been running afoul of the Endangered Species Act since the legislation’s birth. The very first such case involved a tiny fish called a snail darter and a dam on the Little Tennessee River.

The Tennessee Valley Authority had completed more than 80% of the Tellico Dam by the time a biologist happened upon the little fish in 1973, the year the ESA was passed. But the darter was clearly in trouble, with only a few thousand remaining in the dam’s general vicinity. The courts halted construction, fearing it would likely destroy the last critical habitat of an endangered species.

The case made it all the way to the Supreme Court, which ruled 6-3 in Tennessee Valley Authority v. Hill in the snail darter’s favor. It was “the first question of, ‘Do we really stop economic activity to save an endangered species?'” said Brett Hartl, the Center for Biological Diversity’s government affairs director. “And the Supreme Court said, ‘Yes.’”

The tiny fish upending a major public works project rubbed Congress the wrong way, so they quickly set about amending the ESA. Lawmakers established a committee made up of various cabinet-level officials — nicknamed the “God Squad” — that could carve out exemptions to the ESA, if “no reasonable and prudent alternative” to a given project existed, among other criteria. It was assumed that this would bring Tellico over the finish line — until that committee delivered a unanimous rejection anyway, citing the enormous costs to finish and operate the “ill conceived and uneconomic” dam, as the committee’s chair put it at the time.

Still, an unfortunate coda arrived shortly when a senator and a Congressman, both Republicans, used budget negotiations to win an exemption for the Tellico Dam that would put it out of the ESA’s reach. The Tennessee Valley Authority finished the project soon afterward, and while that did eliminate the local snail darter’s territory, it didn’t snuff out the snail darter completely: Scientists moved some fish to nearby rivers, and small populations were found elsewhere as well. (Further conservation efforts led to the darter’s recovery and delisting in 2022.)

In some ways, the episode set the stage for the ESA’s future run-ins with energy development. The dam was, technically, a clean power source, producing no carbon dioxide emissions, though this wasn’t necessarily on the radar at the time. In those early days of the ESA, the scuffle over the snail darter threatened to undermine the new law’s progress. One editorial at the time called it “the sort of thing that could give environmentalists a bad name.”

Once renewable energy development began in earnest in the 21st century, it would make sense to see those environmentalists of various stripes aligned in an effort to fight off the biggest threat to species there is in climate change. But some activists believe that choice — develop or conserve — is a false one, and we can, in fact, have it all.

IN 2011, the non-profit Western Watersheds Project sued the Fish and Wildlife Service along with other government agencies over the lack of environmental reviews for the massive Ivanpah solar energy plant in the Mojave — partly because it had used critical desert tortoise habitat. The previous year, a solar developer agreed to cut another project in half and relocate the 104 tortoises found on its site, thanks to objections from environmental groups. In 2014, the Center for Biological Diversity sued to stop other big solar projects from harming Yuma clapper rails, an endangered marsh bird.

“While we need to quickly transition to clean energy to avoid the worst effects of climate change, we also need to safeguard our imperiled wildlife,” Anderson said at the time. “We can do both, but it has to be done right.”

To some, those and other lawsuits, along with a relatively complicated permitting process that has kept thousands of megawatts of clean energy waiting to be built and brought online for years, is a self-inflicted wound. The climate crisis, after all, is the ultimate extinction crisis.

The Intergovernmental Panel on Climate Change has warned that at 1.5 degrees Celsius of warming — the ambitious and now likely unreachable target set out in the 2015 Paris Agreement — 14% of all land-based species are at risk of extinction. At 3 degrees, that number jumps to 29%. Almost half of those land-based species species have already seen population losses thanks to climate change, and half are already moving north or up mountainsides in search of more comfortable climes. At sea, coral reefs are barely hanging on, and 1.5 degrees could kill off 90% of them, decimating the habitat for a huge array of life.

The way out of that crisis is, primarily, renewable energy. The U.S. has set a target of a 50-52% reduction in overall carbon emissions below 2005 levels by 2030, as well as a 2035 target date for completely decarbonizing the electricity sector. That means a lot of turbines and solar panels, and they have to go somewhere.

“It's a land-use question, but I do not see that being insurmountable,” said Carol Bocetti, a professor at Pennsylvania Western University who has been involved in endangered species recovery for decades. “If solar energy is an issue, there are things you can do in terms of raising panels and spreading them slightly further apart to get sunlight to the ground,” letting tortoises and other wildlife live among the solar farms. “I think both things can happen.”

Lawsuits continue on some renewable energy projects, including a 2021 case against two geothermal power plants that could imperil the endangered Dixie Valley toad(and take up land with spiritual significance to the Fallon Paiute-Shoshone Tribe).

Still, there’s been some progress in smoothing out the conflict. After years of discussion, California along with the federal government adopted the Desert Renewable Energy Conservation Plan, which both streamlines energy development across almost 11 million acres while also prioritizing species conservation.

“I think it's a trade off, but I think it was a reasonable trade off,” Anderson said. “I often judge how dissatisfied people were with these large scale plans — did they sue? Nobody sued over the [conservation plan]. So, nobody was happy, nobody got everything they wanted. But it wasn't so unpalatable that somebody felt like they had to challenge the plan.”

It does appear to be working — at least in some ways: California got 27% of its electricity from solar power in 2022, and at the start of this year it had more than 17,500 megawatts of utility-scale solar power, mostly concentrated in the same place the tortoises live. It gets more energy from solar and geothermal power than any other state. But while solar development continues with more wildlife safeguards in place, other threats to the tortoises — urban encroachment, predatory ravens, marijuana farming, increased extreme heat — haven’t entirely disappeared, and scientists still worry they may go extinct.

The specific conflict between renewables and endangered species has been somewhat mitigated, though, in large part because both are environmental concerns. “A lot of the [solar] companies, they're very concerned about the effects of climate change,” Anderson said. “Yes, it's a business, but they were also sensitive to not wanting to be seen as the destroyer of biodiversity.”

Fischman added that planning ahead for endangered species conservation has made it easier and providing incentives can prod those businesses along. And climate change and its attendant needs for energy development are a reason to double down on conservation, rather than abandon them.

“We need the Endangered Species Act even more, because climate change is accelerating the threat. It's a threat multiplier,” Fischman said. “One of the great legacies of the Endangered Species Act is its clear statement of commitment that humans — that Americans — should avoid causing the extinction of other earthlings, of other species.” It was, he added, “an unconditional commitment.”

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