Abstract
The Endangered Species Act (ESA) of 1973 is one of America’s most powerful statutes, not only in American domestic environmental law, but in American domestic law in general. The first part of the ESA gives us the ‘Findings, Purposes, and Policy’ that underlie the Act. In this prefatory language, we see the following:
The Congress finds and declares that:
(1) ….
(3) these [endangered or threatened] species of fish, wildlife, and plants [in the United States] are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people….
(5) encouraging the States and other interested parties … to develop and maintain conservation programs … is a key to … better safeguarding, for the benefit of all citizens, the Nation’s heritage in fish, wildlife and plants. 16 U.S.C. §1531 (a).
Considering (3) and (5), it is explicit that the ESA is referring to instrumental aesthetic, ecological, educational, historical, recreational, and scientific values. But J. Baird Callicott and Andrew Wetzler argued that the ESA is also implicitly committed to endangered species having intrinsic value.
I argue that the best explanation of the seeming tacit intrinsic value in the ESA is not that such value really is implicit in the ESA; rather, the best explanation is that the ESA is committed to instrumental value with a certain feature that has not been carefully considered in the environmental ethics/philosophy literature before, that of incalculable (or indeterminable) instrumental value, in this case held by endangered species.
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22 February 2022
A Correction to this paper has been published: https://doi.org/10.1007/s11406-022-00492-1
Notes
Barbara Muraca argues that a potential third type of value, relational value, cannot rationally be traded in markets (2011, pps. 388–389). She doesn’t appear to go as far with relational value as I do with incalculable instrumental value in reference to claims that certain properties of value attributions render that value incalculable, but at the very least, she does imply that it is irrational to trade items of relational value in markets. Having said this, I think that there are objections worth considering that target the notion of relational value, if it is posed as a distinct alternative to instrumental value and intrinsic value. See Maier and Feest’s work (2015, p. 333–334) for criticism of Muraca’s notion of relational value. But also see Muraca and Himes’ work (2018) in response to Maier and Feest.
Lawrence Johnson is one such environmental philosopher who argues that species have intrinsic value or moral status (1991).
If one believes, as I do, that having intrinsic value does not automatically imply having moral status, then something can have intrinsic value and yet those articulating such value can consistently maintain that the value not be promoted or protected (Smith 2016, pps. 4–6). For the sake of argument in this paper, I concede Wetzler’s and Callicott’s notion of intrinsic value, however. In general, whether having intrinsic value can be immediately trumping, defeasibly trumping, or even trumping at all will depend on the normative framework within which that value is understood.
However, Congress ultimately bypassed the ESA in 1979 by attaching a rider to the Energy and Water Development Appropriation Act that approved the completion of the dam. For a wonderfully written and very informative history of the TVA dam proposal and initial construction, the snail darter’s listing, the SCOTUS decision in TVA v. Hill, the Congressional amendments to the ESA that were reactions to the Court’s decision, and the pork barrel bypass of the ESA in 1979, see Zygmut Plater’s book (2013).
This is the language from the current version of the ESA. Burger reports the language of the ESA from 1978: “Its very words affirmatively command all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species” (TVA v Hill, p. 173, emphasis added by Burger). Notice the addition of ‘likely to’ in the new language.
Callicott uses another translation, the L.W. Beck translation, but I have quoted from Mary McGregor’s translation, as hers is now taken as more authoritative in Kantian scholarship. Nothing substantive in my article hangs on which translation we accept, however. Also, for an excellent book-length philosophical treatment of dignity, including the Kantian notion of dignity, see Rosen’s work (2012).
I have many doubts about this claim, but I concede to environmental economists for sake of argument that these categories of instrumental value are calculable.
The reader will notice that I cite Pascual et al.’s piece continuously throughout the remainder of the paper. The edited volume (Kumar, 2010) from which their chapter is found is understood as a landmark book in environmental economics in the early twenty-first century. In the ‘About the author’ description of the volume, we find the following: “This volume is an output of TEEB: The Economics of Ecosystems and Biodiversity study and has been edited by Pushpam Kumar, Reader in Environmental Economics, University of Liverpool, UK. TEEB is hosted by the United Nations Environment Programme (UNEP) and supported by the European Commission, the German Federal Ministry for the Environment (BMU) and the UK Department for Environment, Food and Rural Affairs (DEFRA), recently joined by Norway's Ministry for Foreign Affairs, The Netherlands' Ministry of Housing (VROM), the UK Department for International Development (DFID) and also the Swedish International Development Cooperation Agency (SIDA). The study leader is Pavan Sukhdev, who is also Special Adviser—Green Economy Initiative, UNEP.”
Or more precisely, option value can be defined as “the added amount a risk averse person would pay for some amenity, over and above its current value in consumption, to maintain the option of having that amenity available for the future, given that the future availability of the amenity is uncertain” (Bulte et al., 2002, p. 151, note 1, as cited in Pascual et al., 2010, p. 224). Maier and Feest, in their piece on what they view as the normative misconceptions inherent in the conceptual framework of the Intergovernmental Platform on Biodiversity and Ecosystems observe, “Economists understand it to be the premium – over and above the expected net benefit, which benefit is (again) over and above the thing’s cost – that people are (as a matter of psychological fact) willing to pay, up front, merely to retain the option of consuming it sometime later rather than immediately” (2015, p. 336).
An astute reader of the history of the ESA might point out the addition of new language outlining the power of the “God Squad” to potentially green light a project that threatens endangered species, and how the addition of that language might cast doubt on Burger’s claim that the value of endangered species is incalculable. However, the addition of this language should not be read as going directly against what Burger said, for even the “God Squad” (the Endangered Species Committee) is not tasked with determining the value of the endangered species. What it is tasked with is perhaps allowing a project to go forth, even when a project threatens the existence of an endangered species, provided certain criteria are met. See §1536 (h)(1), for the newer language (passed in 1978, in response to the SCOTUS decision in TVA v Hill) outlining the role of the Endangered Species Committee. There, it is explained that the Committee is meant to weigh the benefits of the project against the benefits of alternatives to the project that are consistent with saving the species. In 1978, the Endangered Species Committee was tasked with weighing the benefits of the TVA dam proposal against the benefits of alternatives to the dam proposal, including proposed Little Tennessee River development projects for tourism and fishing. The Committee’s judgment was that not only did the benefits of alternatives to the dam proposal outweigh benefits of the TVA dam project, but that independently of the benefits of alternatives, the dam proposal didn’t even pass a cost–benefit test itself! That is, the projected costs of dam operation per year outweighed annual projected benefits of the dam (Plater, 2013, pps. 287–289). But in all this calculation, it is very important to see that it is still not the case that the value of the species is meant to be weighed against the benefits of the project(s), whether in proposed or alternative form. Thus, the Burgerian line can be still maintained to this day that the value of an endangered species in the ESA is incalculable and not itself to be weighed against the value of a proposed project. (However, the Burgerian cannot continue to maintain that the language of §1536 (a)(2) admits of no exception, for the new language in §1536 (h)(1) precisely spells out such exceptions—see Section 1 of this article for elaboration of the no exception clause.)
Wetzler sees the genetic heritage value of endangered species as scientific value (1993, p. 170) whereas I see it as ecological value. I see it as the latter because the value of endangered species as such potential resources can often crucially rely upon the relationship between the species in question and the ecosystem in which it inhabits. Also, given the discussion below of the genetic heritage value being of ecological option value, it makes more sense to categorize the genetic heritage value as ecological value.
Callicott fixes upon the following phrase from the House Marine and Fisheries Report: “From the most narrow possible point of view….” Callicott writes that this language suggests a more expansive point of view to include the view that endangered species have intrinsic value (2006, p. 41). He might be right that this more expansive view includes the view that endangered species have intrinsic value, but this more expansive point of view is not appealed to by Burger in TVA v Hill as part of his defense of the view that the SCOTUS is not to weigh the value of the darter against the value of the dam (in which that defense is found on pps. 172–193 in TVA v Hill).
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Acknowledgements
I would like to thank the participants of Colorado State University’s Extinction Ethics Workshop, especially Jay Odenbaugh, for their very helpful comments on earlier drafts of this article. I also wish to thank two anonymous reviewers for their criticism of earlier drafts of this article, criticism which helped to fundamentally improve it. Finally, I wish to thank Washburn University for providing sabbatical funding that made this project possible.
Funding
This project was made possible by a sabbatical grant from Washburn University for the fall of 2020.
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The original online version of this article was revised: The sequence of the numbered list have been changed from "(1), (2), (3), (4)" to "(1), (2), (3), (5)". Correct presentation regarding the corrections made can be found in the erratum/correction for this article.
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Smith, I.A. Incalculable Instrumental Value in the Endangered Species Act. Philosophia 50, 2249–2262 (2022). https://doi.org/10.1007/s11406-021-00450-3
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DOI: https://doi.org/10.1007/s11406-021-00450-3