Katrina Wyman has penned a bold, provocative, and innovative critique of the capability of the Endangered Species Act (ESA or Act) to meet the challenges of an increasingly human-dominated world. Bold because the ESA, perhaps more than any other environmental law, has impassioned champions who disfavor dissent. It is no easy task to critique a law with the truly noble mission to preserve life other than our own, particularly when the law's basic premise is that the mission's success is critically dependent on abundant and altruistic actions by us. Provocative because the author asks us to acknowledge that we cannot achieve that lofty mission through the ESA in its present form. Innovative because the author asks us to consider recasting that mission in terms both more modest (reduce automatic goal of recovery for each listed species) and more ample (protect biodiversity, not just specific species) and explore novel ways to contribute to the mission's success both within and beyond the confines of the ESA.

Anyone who assumes such a difficult task will surely draw doubts from kibitzers. Here is one such kibitzer and a few such doubts.

To summarize this Comment, I believe that Wyman has provided the right diagnosis, but not necessarily the right remedies. Our expectations for the ESA must be reduced even as we pursue biodiversity protection, but once reduced may be accommodated in large measure without the radical surgery on, and search for new legal authority beyond, the ESA suggested by the author. Indeed, certain remedies drawn largely from the existing text of the ESA may be more politically palatable and less costly, and therefore more achievable, even if they do not accomplish the degree of biodiversity protection most desired.

In a recent essay, Katrina Wyman suggests four substantial reforms aimed at improving implementation of the Endangered Species Act (ESA) and furthering species recovery: (1) decoupling listing decisions from permanent species protection;3 (2) requiring the Fish & Wildlife Service (FWS) to implement cost-effective species protection measures;5 (3) prioritizing funding for biological hotspots;6 and (4) establishing additional protected areas. Although Wyman does not specifically frame it this way, these four proposals amount to a grand legislative bargain: ESA critics would get a regulatory mechanism that specifically requires the FWS to take costs into account, while environmentalists would get more funding for species recovery and more land, both federal and nonfederal, on which development is restricted or prohibited.

These are bold proposals. Wyman correctly perceives that the most likely way forward from the current sterile debates over the ESA will involve some form of painful legislative compromise. However, her proposals reach so far that they stand little chance of immediate enactment. Two more modest types of compromise focused on federal lands may offer greater prospects for near-term progress.

Above my desk at work, I keep a button that reads "Save the Ugly Animals Too." It is a reminder that more than just the charismatic megafauna, such as wolves and bald eagles and grizzly bears and whales, are worth conserving. From the standpoint of protecting the web of life, including the ecosystems that benefit us all by providing services such as water purification, flood control, nurseries for our fish and shellfish, and opportunities for outdoor recreation, it is often as important to conserve the lesser known species, the cogs and wheels that drive those ecosystems.

The commitment to conserve threatened and endangered species, and the ecosystems upon which they depend, is the grand promise of the Endangered Species Act (ESA). Enacted in 1973, the ESA has done a remarkable job of saving from extinction charismatic and "ugly animals" alike. In doing so, it has engendered enormous controversy at times, such as the debate in the mid-1970's over the snail darter and the Tellico Dam, the battles in the 1980's and early 1990's over the northern spotted owl and logging of old growth forests in the Pacific Northwest, and the current flare-up over the Delta smelt and water for California's Central Valley farmers. Despite these controversies, the ESA has endured, testifying both to the value Americans place on preventing extinction and the flexibility of the ESA.