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Protecting Plants Under the Endangered Species Act

Jessica Roberts


  • Describes how species are listed, protected, and recovered while demonstrating the disparities between plant and animal treatment under the ESA.
  • Notes how the ESA’s definition of the term “wildlife” excludes plants.
  • Addresses that in order to protect and recover endangered species, the disparity between plants and animals at critical stages of the recovery process must be reduced.
Protecting Plants Under the Endangered Species Act
Pgiam via Getty Images

This article is an excerpt from Ms. Robert’s essay submission to the SEER Endangered Species Committee Law School Writing Competition for which she was awarded 3rd prize in 2021. 

As commonly construed, the Endangered Species Act (ESA) protects all listed threatened and endangered species. However, in practice, the ESA’s protections do not extend equally. One of the most considerable disparities lies in how the ESA applies to plants as opposed to animals. This disparity is perhaps most apparent in examining which species get listed, how the ESA protects them on private property, and how much funding agencies allocate for their recovery. This essay describes how species are listed, protected, and recovered while demonstrating the disparities between plant and animal treatment under the ESA. 

Listing Threatened and Endangered Species

The U.S. Fish and Wildlife Service (FWS), an agency primarily responsible for administering the ESA as it applies to terrestrial and freshwater species, may list species as either threatened or endangered through two processes. Under the first process, the FWS determines that it should consider listing a species based on the information before it. Under the second and more common process, the FWS receives a petition to list species from outside the agency. After receiving this petition, the FWS must make a finding of “whether or not there is ‘substantial information’ indicating that the petitioned listing may be warranted.” If this finding is positive, the agency conducts a status review of the species, assessing the species’ “plight, population trend, and threats” based on “the best scientific and commercial data available.” In light of this information, the agency then determines whether listing the species is warranted, not warranted, or warranted but precluded.

Under legally binding time lines, the entire process for listing a species should take no longer than two years from the submission of a listing petition. However, there is a considerable range in the amount of time it has taken to list a species. While some species have “moved through the process in [six] months,” others have taken almost 40 years. By analyzing the speed through which different species move through this process, researchers noticed a trend. Specifically, they observed that imperiled vertebrates, which include reptiles, fish, birds, amphibians, and mammals, are “addressed more rapidly than invertebrates and plants,” with the exception of arachnids. Their analysis revealed that the taxonomic group a species belongs to “substantially influence[s] the listing process.”

Protecting Listed Species

One of the ESA’s most important and controversial protections lies in section 9(a)(1). In this section, the ESA prohibits taking any endangered species of fish or wildlife within the United States. The term “take” encompasses actions such as harassing, killing, capturing, collecting, and harming. As used in this take prohibition, the term “harming” encompasses any “act which actually kills or injures wildlife,” which “may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential breeding patterns.” Such take prohibition applies to actions on public or private land, regardless of whether those taking endangered species do so on their property. Those who violate this prohibition may face civil or even criminal penalties.

For wildlife residing on private property, these protections are critical. However, the term “wildlife” as used in section 9(a)(1) of the ESA is statutorily defined to limit their application to “any member of the animal kingdom, including without limitation any mammal, fish, bird . . . amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate.” Notably, this definition excludes plants. As a result, the ESA prohibits private landowners from taking endangered animals on their private land without first obtaining an incidental take permit and developing their land in accordance with that permit. As applied to plants, section 9 prohibits private parties from taking protected plants that are located “on lands that are under Federal jurisdiction or on other lands in violation of State laws.” There is no provision in the ESA that directly “prevents landowners from killing any plant on their property or from adversely modifying its habitat,” nor are there FWS regulations prohibiting such take.

The implications of the disparity between plant and animal protections on private property are grave. Approximately 80 percent of listed species depend either partially or entirely on private land, and about one-third of them depend exclusively on such land. As a result, the survival of many endangered plant species may hinge entirely on the actions that private landowners take.

Recovering Listed Species

ESA protections on private property are, in many cases, critical for the survival of endangered species. However, the ESA’s purpose is not merely to prevent species from going extinct; it is also to bring these species back “to the point at which measures provided pursuant to [the ESA] are no longer necessary.” This process is known as recovery, and it is critical to ensuring the long-term survival of threatened and endangered species in the wild.

To guide species recovery, section 4 of the ESA requires the development and implementation of recovery plans. These plans detail the actions and resources needed to recover a listed species. For each plan, the ESA requires “a description of such site-specific management activities as may be necessary to achieve the plan’s goal,” the inclusion of an “objective, measurable criteria which, when met, would result in a determination . . . that the species be removed from the list,” and an “estimate[] of the time required and the cost to carry out those measures needed to achieve the plan’s goal.”

Many factors affect whether this goal is realized, but one of the “best predictors of recovery success” is “the amount of government funding available” for recovery actions. While the FWS has a budget allocated for species recovery, it has consistently been inadequate to cover even the cost of preparing recovery plans, much less for implementing the actions described in them.

This problem of limited funding is exacerbated by how funds are allocated. One study determined that between 1998 and 2012, “over 80 percent of all government spending went to support 5 percent of all listed species.” While the allocation of funding is prioritized depending on species’ needs, taxonomic uniqueness, the degree of threat to the species, and its potential to recover, these priorities alone cannot account for how funding is allocated in all instances.

Despite the ESA’s mandate that recovery plans should be implemented without regard to the species’ taxonomic classification, the amount of funding allocated for recovery strongly correlates with such class. An analysis of recovery trends revealed that vertebrates received higher levels of funding than other taxa. Plants have consistently received the lowest amount of funding per species, with government spending, on average, well below their estimated recovery costs. As a result of this disparity, most species that have recovered are vertebrates; while 72 percent of listed species are invertebrates and plants, they represent only 26 percent of those that have recovered.

In conclusion, the survival and recovery of imperiled species in the United States depends in large part on endangered species laws. The ESA provides critical tools for protecting and recovering these species, and as it applies to wildlife, it has been wildly successful. However, for threatened and endangered plants, the future remains less certain. To protect and recover these species, the disparity between plants and animals at critical stages of the recovery process must be reduced.