PROTECTING PLANTS UNDER THE EXISTING ENDANGERED SPECIES ACT

Plant species get little protection under existing environmental laws and are vastly underrepresented in the existing environmental law literature. Plants provide the foundations for virtually all ecosystems and provide humans with food, oxygen, and many medications, but plant diversity faces escalating threats from climate change and other human impacts. Protecting plants is essential to protecting life as we know it. This article makes the case for improved protection for plants and examines an approach for providing this increased protection under the existing Endangered Species Act. The Endangered Species Act does not protect threatened and endangered plants on private land, and it provides only very limited protection for threatened and endangered plants on public land. Although Congress is unlikely to change the Act in the near term, executive agencies have the flexibility to increase plant protection through Section 7 in a legally defensible and politically acceptable way. Section 7 of the Act requires that federal agencies consult with the regulatory agencies who administer the Act to ensure that their actions will not push threatened and endangered species into extinction. This provision could provide meaningful protection for plant species, but the regulatory agencies have not yet capitalized on the plant protections available under Section 7 of the Act. This approach builds on emerging environmental law efforts to improve conservation under federal environmental laws without amending those laws. Altering administration of the Act to improve plant protection will benefit both the plants themselves and society more broadly while better accomplishing the goals of the ESA.