NewYorkUniversity
LawReview
Current Issue

Volume 94, Number 3

June 2019

Protecting Evolutionary Potential: Can the Endangered Species Act Save Species Before They Exist?

Natalie Jacewicz

As popularly conceived, environmental conservation is a backward-looking exercise that aims to restore and protect the biodiversity of our parents and grandparents. But this static view of nature is a fiction. Scientists have grown increasingly aware that species are still evolving and, in some cases, doing so rapidly. What’s more, scientists are beginning to be able to make predictions about when and how evolution will occur. This Note argues that such nascent biodiversity is worthy of protection. Furthermore, the text and purpose of the Endangered Species Act require protecting populations likely to evolve in the foreseeable future. Without changing the administrative criteria for implementing the Act, agencies could protect nascent biodiversity under the statutory provisions covering threatened “distinct population segments.” Finally, this Note responds to some possible difficulties with this approach. As scientific understanding of evolution and biodiversity continues to advance, agencies must consider that their statutory mandate is not to recreate the past, but to enrich the future.