Callicott and Grove-Fanning

Should Species of Standing? Toward Legal Rights for Listed Species


1.       Main thesis:

          a.       Endangered Species Act (ESA) of 1973 confers implicit intrinsic value, de facto legal standing, and operational legal rights on listed endangered species (=end species)

          b.       “De facto” standing means “in fact or in practice” and is contrasted with “de jure” which means “in law”

                    i.        So, for example, people may treat a contract as de facto binding but it may not be a legally binding contract

                    ii.       Wikipedia: “A practice may exist de facto, where for example the people obey a contract as though there were a law enforcing it yet there is no such law. . . On the other hand, practices may exist de jure and not be obeyed or observed by the people.”

          c.       In other words, end species do not have official legal standing or rights in the law’s eyes, but are often/typically treated as if they do

                    i.        Because of citizen suit provision of ESA


2.       Christopher Stone and Justice Douglas in Sierra Club vs Morton argued that natural objects should litigate in own names and on own behalf in order to remedy a harm to them

3.       Practical effect of ESA is to allow listed species to do just that (and this gives them implicit moral standing and intrinsic value)

          a.       ESA translates “ecocentric” (not just anthropocentric) values into public policy

                    i.        “Ecocentrism” (322) = “various trans-organismic entities, such as whole species biotic communities and/or ecosystems have intrinsic value and thus some modicum of moral considerability (if not rights)”

                    ii.       Ecocentric values: Non-individuals, such as ecosystems, species etc are important in their own right (have intrinsic value)

4.       Contrast an anthropocentric interpretation of ESA with an ecocentric one

5.       In contrast, one might interpret ESA anthropocentrically (species are valuable solely for their human benefits not directly for the species benefit themselves)

          a.       ESA: “species of fish, wildlife and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people”


6.       Facts about the ESA

          a.       Applies to species, subspecies, or distinct populations of animals or plants (fly is on the list)

          b.       Prohibits “taking” (harm, harass, including habitat destruction— Sweet Home Case) a “listed” species (endangered or threatened species that have successfully gotten on the end species list)

          c.       U.S. Fish and Wildlife service (FWS) has responsibility to identify end species and list them, based only on the best science (not politics)

          d.       Any person can ask that a species be listed

          e.       FWS must draft a recovery plan for each listed species


7.       Sierra Club v. Morton 1972

          a.       Club sued U.S. Forest Service to prevent it allowing Disney enterprises from putting a ski resort in Mineral King Valley in Sierras

          b.       Sierra club’s standing (“right to file suit”) was successfully challenged

          c.       It did not assert injury to itself or members but to Mineral King’s “aesthetics and ecology”

          d.       Stone argued that the wilderness itself be treated as the injured party (“the plaintiff”) suffering the legal wrong and Sierra be its guardian suing for it

          e.       Justice William O Douglass in the minority wrote that natural objects like Mineral King should have standing so that people could sue on behalf of the natural object itself (and not on their own behalf)


8.       Stone’s three requirements for “operational legal rights” (even if language of legal rights not used) show ESA gives species such rights

          a.       Legal action may be commenced on entity’s behalf

                    i.        Citizen suit provision of ESA allows any person to file civil suit to have act enforced

          b.       Injury to the entity itself (not some third party) must be taken into account when legal relief granted

                    i.        ESA allows persons to sue on behalf of the end species

          c.       Relief must be to the benefit of the entity (not some 3rd party)

                    i.        FWS must regulate to provide for conservation of listed species and avoid curtailment of its habitat


          d.       Callicott and Grove-Fanning argue ESA gives operational legal rights to listed species and thereby confers upon them defacto standing and implicitly recognizes their intrinsic value


9.       Why de jure (in the law) species don’t have legal standing

10.     Jurisprudentially (and under Article III of the Constitution) only human “person” (this includes corporations, ships.... which are defined as persons) who has been injured can have standing (right to file suit)

11.     But Congress (in ESA) has allowed any person whether or not he himself was injured to sue to prevent injury to listed species

          a.       And the person suing becomes the attorney/guardian and the listed species is the beneficiary and defacto standing.


12.     Baxter and Stone on implications of natural objects having rights

          a.       Stone: More votes for Alaska delegation?

          b.       William Baxter from People or Penguins: Case for Optimal Pollution (1974)

                    i.        Claiming that nonhumans are to be counted as ends rather than means (=that they have intrinsic value/moral standing) can’t be fairly operationalized

                    ii.       Problems include:

                              (1)     How much are they to count (should a sugar pine count as much as person? ½ as much? How many congressional representatives should they have? Should a species count more than a person?)

                                         (a)     Are these problems any more severe than deciding how to weigh competing human interests? Child health care versus social safety net for older Americans?

                              (2)     How are nonhumans to express their preferences?

                              (3)     Since nonhumans can’t vote, they can’t participate in collective decision making or tell us what they want or what is good for them.

                                         (a)     Reply: But it is often quite clear what is good or bad for the environment and some humans can represent the interests of nonhumans (“can hold their proxies”).

                                         (b)     E.g., we have established the Endangered Species Act and set up the U.S. Fish and Wildlife Service to administer it.

                              (4)     How are we to select the humans who get to represent nature’s interests?

                                         (a)     Self-appointment by environmentalists to represent nonhuman nature is unacceptable

                                         (b)     For it lets them undemocratically increase their clout and impose their values on others

                                         (c)     Unfair to count environmentalists preferences toward nature as more important than the preferences of other humans about what happens to nature

                                                   (i)      This assumes that environmentalists are simply self-interested users of the environment just like industry and business groups.

                                                   (ii)     We need distinguish between enviros representing their own interests (say in backpacking and having parks to visit) and enviros representing nature’s interests by pushing for species preservation and protecting places they may/will never visit


13.     Snail Darter case (Hill vs TVA) 1978

          a.       Tennessee Valley Authority was building the Tellico dam on the Little Tennessee River

          b.       Opponents were trying to stop this w/o success

          c.       Found species of fish (minnow sized) whose existence would be threatened

          d.       Successfully sued under the ESA to stop the dam project

          e.       Congress outraged Supreme Court’s interpretation of ESA created the “endangered species committee (God Squad) to be able to grant exceptions to the act when economic costs too high

          f.       God squad determined the TVA Tellico dam was not warranted on economic grounds alone and denied an exemption

          g.       Tennessee Senator Howard Baker got a rider exempting the Tellico dam from the ESA attached to a bill that was signed into law and dam was completed.

          h.       Snail Darter was found in other streams and so not driven to extinction


          i.        In this case a human (Hill) was suing on behalf of the Snail Darter


14.     Palila v. Hawaii

          a.       Endangered bird species (joined by Sierra and Audubon) sued state of Hawaii for allowing population of hunted goats it maintained to destroy its habitat

          b.       At one appeals level one judge explicitly suggested bird was a plaintiff in its own right (had de jure standing) and Sierra and Audubon were its attorneys

          c.       Been lots of such cases of where suit brought on behalf of listed species: Northern spoted owl, Mt. Graham Red Squirel, Marbled Murrelet, Flrica Key Deer Hawksbill Sea Turlet, Loggerhead Turtle, Coho Salmon and !Cetacean Community


15.     In Cetacean Community vs Bush (2003)

          a.       Marine Mammals sued president of U.S. to have navy stop using type of Sonar that injures these mammals.

          b.       Appellate court ruled that nonhumans did not have standing to sue

                    i.        “Animals are the protected rather than the protectors; animals not authorized to sue in their own names to protect themselves”


16.     Lujan/ v. Defenders of Wildlife (1992) (ESA citizen suit challenged)

          a.       Questioned constitutionality of ESA’s citizen suit provision whereby any citizen can sue to have ESA enforced (even if not personally injured)

          b.       Defenders sued Secretary of Interior for regulation exempting federally funded agencies overseas form consulting with FWS to make sure what they were funding wasn’t harming listed species.

          c.       Justice Scalia argued that citizen suit provision of ESA allowing anyone to sue to have ESA enforced infringes on Executive Branch’s duties to enforce the law

          d.       But Scalia was just "opining" on an issue that was not before the court and so his opinion doesn’t carry precedent


17.     Bennett v. Spear 1997

          a.       Ranchers sued FWS for restricting their use of water (to protect end species of fish)

          b.       Justice Scalia ruled that they did have standing because

          c.       Actions that adversely affect the environment injure all persons and so all persons meet the standing requirement


18.     ESA under attach by Property Rights advocates as Compensatory Takings (332)

          a.       ESA prohibits critical habitat destruction of end species

          b.       Such habitat often is on private land

          c.       Private landowners can’t log or build on land that is end species habitat

          d.       Claim this is “taking” private property on analogy with eminent domain taking of 5th Amendment (that requires compensation)

          e.       Eminent domain taking:

                    i.        Government uses eminent domain to take title to private land for a road/bridge, it must pay just compensation to landowner

          f.       Alleged “regulatory taking” of ESA

                    i.        Government does not take title

                    ii.       But reduces property value

                    iii.      Should compensate landowner for the lost value

          g.       Since no funding provided for the government agencies who have to administer env. Regulations like ESA (or wetland laws)

                    i.        This would undermine agencies (FWS) ability to enforce the law against private land owners

          h.       Courts deny compensation for “taking” when regulations are exercises of government’s “police power” “to regulate private property w/o compensation” for “health, safety or morals and general welfare of society”

          i.        ESA protects society at large and also end species themselves

          j.        So ESA enforcement does not require compensation

                    i.        Unless we get new legislation requiring this


19.     Bush’s secretary of Interior Kempthorne’s “self-consultation” attack on ESA (2008)

          a.       Government agencies could decide themselves if their activities threatened end. Species and would not have to consult with FWS (and they could use much easier standards to prove no harm)

          b.       In response to environmentalists decision to use ESA to try to get action on global warming by getting polar bear listed and then stopping such things as new coal fired power plants using ESA consultation process


20.      ( p. 326) on nature of intrinsic valuing:

          a.       Can valuing based on aesthetic or ecological or historical reasons be intrinsic, and not instrumental?

          b.       “Env. phil recognizes two main ways that people value natural objects:

                    i.        As means to human ends, whatever those ends–including esthetic ecological, educational, historical, recreational, and scientific human ends”

                              (1)     Natural objects here valued instrumentally

                    ii.       Ends in themselves

                              (1)     Natural objects valued intrinsically

          c.       Makes it seem than when you value something intrinsically you have no reason for so valuing it

                    i.        I could value a bird aesthetically for the aes pleasure I get from watching it

                    ii.       Or I could value the bird intrinsically (for its own sake) in virtue of its beauty

                              (1)     The aesthetic pleasure I get is a byproduct of and a sign of my valuing it intrinsically

21.     Why does it matter whether or not a species has standing (legal right to sue) as long as others (people) can sue on its behalf?

          a.       That seems enough for moral considerability and intrinsic value

          b.       What further benefit to an incompetent being does standing (right to sue) confer?

          c.       Does say 337: It makes no practical difference

22.     If citizens have the right to sue under ESA because all people are affected by what happens to the environment

          a.       Then isn’t it the effect on people that is at issue, and not the intrinsic effect on endangered species?

23.     Why assume (p. 349) that if one acknowledges the welfare of an entity that one is claiming that entity is intrinsically valuable or that its welfare is morally considerable?