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Four Reasons the Endangered Species Act Desperately Needs Reform

The Department of Interior recently announced proposed revisions to enforcement of the Endangered Species Act (ESA). These revisions are designed to lessen the regulatory burdens of this ineffective and outdated piece of legislation.

The Endangered Species Act was passed almost 45 years ago in 1973. It was inspired by the environmentalism of the 1960s-70s and the growing fear that certain animals were facing extinction due to human impact on the natural world. Environmentalists defend the ESA with the assertion that its regulations are saving species, but it just takes time.

In reality, the ESA has been ineffective at recovering endangered species. Where it has made an impact is in threatening private property use and effective land management. Here are four reasons why this decades-old law is in desperate need of reform:

  1. It has been unsuccessful in recovering endangered species

    Even though the ESA has been the law of the land for almost half a century, its record of recovering species is unimpressive. While there are over 1,660 domestic species now on the list, only 40 have been removed on the grounds that they have recovered. Unfortunately, even this small number is a gross exaggeration. About half of these species did not really recover, but were found to be more numerous or widespread than originally believed, faced overestimated threats, or were taxonomically invalid. The ESA has proven to be like a hospital where patients are admitted but don’t get discharged. While there have been some conservation successes and beneficial activities under the ESA—even recognizing that conservation of each species poses different challenges—this is not an acceptable record. From the time we set the goal to the time we sent a man to the moon, for example, was about a decade. We know wildlife populations can recover because we have done it with black bear, American buffalo, wood ducks, wild turkey, beaver, and numerous other species that were stewarded back from low numbers and decreased distribution without the ESA.

  2. It penalizes private property owners who bear the costs of a national conservation program

    If someone’s property is turned into a national park, they are paid for it. If someone’s property becomes unusable because of the federal program to conserve endangered species, they are essentially stuck with the bill. They keep title to their land and pay taxes on it, but may not be able to use it as they wish or very much at all. This does not create a great incentive for conservation on private land. As one Fish and Wildlife Service official remarked, “...the incentives are wrong here. If a rare metal is on my property the value of my land goes up. But if a rare bird is on my property the value of my property goes down.” Despite this, for decades it has been clear how crucial the role private property plays for endangered species. By 1993, according to the Government Accountability Office, over 90 percent of listed species had habitat on non-federal lands, and for over 70% of these it included the majority of their habitat. These conservation disincentives need to be changed.

  3. It is bureaucratic, litigation-driven, and often implemented on poor and even erroneous scientific data

Unfortunately, a massive amount of the activities carried out under the ESA are onerous bureaucratic regulations, endless permitting processes, and legal posturing and lawsuits rather than the rigorous scientific studies, habitat management, and cultivation or propagation of species that many likely envision when they think of conservation.

Just the paperwork of putting species on the endangered list costs hundreds of thousand of dollars. While one would hope that this would prevent a large number of species from being declared endangered based on bad data, that has not been the case. Scores of species now on the federal roles, if not hundreds, likely don’t belong there. Litigation, unfortunately, is often a bigger driver in ESA implementation than policies informed by reliable, accurate, and sufficient scientific data. Some organizations have made a cottage industry out of suing to compel a species being added to the federal list and have enjoyed discouragingly remarkable success in getting settlements and attorney’s fees to boot.

  1. The economic impact, although obscured and untracked, is huge

    The ESA provides no incentive for regulators to contain costs, because the costs of complying with the regulations are borne by the landowners themselves. The Supreme Court has ruled that Congress intended for species to be conserved “whatever the cost.” In practice, however, the costs largely fall upon those unlucky enough (an unfortunate disincentive) to have habitat that supports a regulated species and not on the government officials charged with recovering the species. Consequently, regulators are free to pursue enforcement under the ESA with little regard to the burdens imposed. The overall costs and economic impact of the law are not even tracked. The last government report on federal and state expenditures, although clearly incomplete, revealed about $1.5 billion in expenditures. On the high end, there are single species with plans that anticipate costs of over a billion dollars—and those estimates are often incomplete as well. Then there is the economic impact that, although not tracked, accounts for the lion’s share. The anticipated economic impact for individual species is commonly in the tens or hundreds of millions of dollars and sometimes more. One set of analyses put the economic impact of the California gnatcatcher, a bird, somewhere between $880 million and $4.6 billion.

CEI welcomes the Department of Interior’s proposal to improve some of the worst administrative practices and procedures developed over four decades under the Endangered Species Act and encourages the Department to go further with reforms.