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I.
Introduction and Historical Background
The U.S. Endangered Species Act of 1973 (ESA) is routinely called America's strongest piece of environmental legislation.1 The description is apt. As we here argue, the act appears to confer implicit intrinsic value, de facto legal standing, and operational legal rights on listed threatened and endangered species. In the early 1970s, University of Southern California law professor Christopher D. Stone, followed by Supreme Court Justice William O. Douglas (in the documents cited and more fully discussed in the second section of this essay), proposed that natural objects be allowed to litigate--in their own names and on their own behalf--to remedy an actual or potential harm to them. No one, however, has attempted to show, as we do here, that the practical effect of the ESA is to allow listed species to do just that. If so, then, in the jargon of contemporary environmental ethics, the ESA translates "ecocentric" as well as anthropocentric values into public policy.
Environmental pragmatists have long argued that academic environmental ethics has rendered itself irrelevant to public-policy making because most environmental philosophers have been obsessed with theorizing one or another species of nonanthropocentrism--zoocentrism, biocentrism, ecocentrism--while the vast majority of the public and their political representatives espouse exclusively anthropocentric values.2 Whether or not the vast majority of the public and their political representatives espouse exclusively anthropocentric values is an empirical question; and empirical studies have produced contradictory answers to it.3 In any case, the kind of values actually expressed in section 2(a)(3) of the Endangered Species Act could certainly be construed to be exclusively anthropocentric because, as the act declares, "species of fish, wildlife and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."4 One of us has argued that the act implicitly expresses the distinctly nonanthropocentric notion that listed species have intrinsic as well as instrumental value.5 Here we argue, by way of complement, that the ESA also provides listed species with what often rests on intrinsic value--(operational) legal rights and (de facto) legal standing. We do not claim that ecocentric theory in academic environmental ethics inspired the ESA; we claim only that the ESA...