Journal of Environmental Law & Litigation : Vol. 25, No. 1, p. 423-454 : Reauthorizing the Endangered Species Act in Favor of Wildlife and Wild Lands: An Inevitable Result of Narrative Changes in Twenty-First Century America?

Abstract

This Article explores how the shifting mosaic of interests, reacting to how the Endangered Species Act was implemented, crystallized into stark and opposing narratives in the public imagination during the debates over its reauthorization. This Article suggests that these narratives polarized in reaction to provisions in the ESA that appeared either to endanger nature or to abrogate property rights. This opposition of interests between groups loosely aligned in favor of nature, hereinafter the Environmentalists, and groups loosely associated to protect property rights, hereinafter the Rugged Individualists, led to intense policy debate but little movement in decision making. Focusing on appeals to different expertise, disparate case studies, and divergent narratives, this Article examines the availability cascades,13 mechanisms by which a singular perspective repeated often enough can become a widely held belief, that consolidated these opposing groups and resulted in a stalemate over reauthorization. This stalemate froze the ESA and has prevented its long overdue reauthorization. While the stalemate keeps the legislation on a short leash since it requires annual appropriations, something that suits each side to a certain extent, the legislation fails to insulate private property proponents or conservationists from longer-term decisions that would undermine current investments. As a result, both sides have attempted to bridge the divide. These stopgap measures succeeded in undoing the stalemate in some place-based problem sets. Nonetheless, the national debate remains in a deep freeze. Or does it?