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The Rhetoric of Delisting Species Under the Endangered Species Act: How to Declare Victory Without Winning the War

November 2001

Citation: ELR 11302

Author: Federico Cheever

The recovery and delisting of species protected under the Endangered Species Act (ESA) is the coming fashion and no mistake.1 This spring many of us followed with interest the nesting trevails of California condors in Arizona and California as the birds endeavored to lay the foundations for a comeback.2 At the same time, we watched with mixed feelings building pressure to delist gray wolves and the announced delisting of the Aleutian Canada geese.3 The U.S. Fish and Wildlife Service (FWS) has committed itself to "recovery" as the goal for its species protection program.4 Unfortunately, under the provisions of the law and the logic of politics there is great pressure to measure the success of recovery efforts in terms of species delisting. Recovery may have the power to transform the popular image of the ESA from a statute about stopping development into a statute about preserving species.5 However, only delisting can, in theory, decouple protection of biodiversity from the much maligned business of getting government permits and dealings with federal officials.

Like it or not, the common notions of recovery and delisting — bringing species to the point at which they are so numerous and so well distributed in sufficient quantities of perpetually secure habitat that the protections provided by the ESA become unnecessary — will not become a realistic aspiration for any significant number of species any time in the foreseeable future.6 We are still in the middle of a biological crisis; human population, climate change, and wildlife habitat destruction continue to reduce the chances for nonhuman species around the world and on this continent. The numbers of species being pushed to extinction still increases.

The author is an Associate Professor at the University of Denver College of Law. Many thanks to Holly Doremus for reviewing a draft of this Article, and to Kirstin McMillan and Deann Snider, students at the University of Denver College of Law, without whom this Article would have been impossible.

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