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Professor Kass is an associate professor of law at Thomas Jefferson School of Law in San Diego, a member of the editorial board of Natural Resources & Environment, and a vice-chair of the ABA’s Endangered Species Committee.
In the Genesis narrative, God instructs Noah to build an ark and bring two of every animal aboard before a great flood. Then, as the story goes, on the day “all the fountains of the great deep were broken up, and the windows of heaven were opened, and the rain was upon the earth for forty days and forty nights,” God closed the ark. King James, Genesis Ch. 7. All animals onboard were to be saved; all others destined to perish.
The Endangered Species Act (ESA), 16 U.S.C. §§ 1531–1599, creates a modern day Noah’s ark for species at risk of extinction. A lucky few at-risk species—charismatic enough, unappetizing enough, on their last gasp enough, and uncontroversial enough (out of Congressional cross-hairs)—get listed as endangered or threatened species pursuant to statutory criteria. See Kalyani Robbins, Strength in Numbers Setting Quantitative Criteria for Listing Species Under the Endangered Species Act, 27 U.C.L.A Envtl. L. & Pol’y 1, 10–22 (2009) [Hereinafter Strength in Numbers]. As of the end of 2011, just under 2,000 plants and animals had a berth on the ESA ark. http://ecos.fws.gov/tess_public/pub/Boxscore.do. As compared with the nearly 20,000 plant and animal species at-risk according to the International Union for Conservation of Nature (IUCN), ESA listed species represent a rather paltry few. See IUCN Red Book Table 1: Numbers of Threatened Species by Major Groups of Organisms (1996–2011) at http://www.iucnredlist.org/about/summary-statistics#How_many_threatened.