The Ark That Wouldn’t Float

In Rebuilding The Ark: Toward a More Effective Endangered Species Act for Private Land, the Environmental Defense Fund admits the ESA is "punishing good stewardship." That the ESA creates perverse incentives is not news – CEI and other advocates of reform have been pointing this out for years. It is news, however, when the ESA's apologists begin to acknowledge the law's titanic failures.

According to EDF's report, released in December 1996, landowners "are afraid that if they take actions that attract new endangered species to their land or increase the populations of endangered species that are already there, their 'reward' for doing so will be more regulatory restrictions on the use of their property." This, the authors add, "has prompted some landowners to destroy unoccupied habitats of endangered species before the animals could find it."

In other words, the ESA's onerous land-use restrictions are promoting habitat destruction, not conservation. Because no good deed goes unpunished under the ESA, the law is turning wildlife assets into costly liabilities, thus undermining its very purpose. And EDF has known this all along.

One of the first indications came from behind closed doors, in 1994, at a "training and education seminar" sponsored by the Fish & Wildlife Service for government employees. Michael Bean, Chairman of EDF's wildlife program, told his audience that the deliberate destruction of wildlife habitat on private land is "not the result of malice toward the environment," but reflects "fairly rational decisions motivated by a desire to avoid potentially significant economic constraints." Bean went so far as to admit that new approaches needed to be tried "because they're not going to do much worse that the existing approaches." (The speech only became public because CEI's Brian Seasholes attended the seminar, uninvited, and a video was obtained under the Freedom of Information Act.)

Yet not until 1996 did Mr. Bean repeat such sentiments in public. Indeed, at the same time he was explaining the ESA's failings to government bureaucrats in private, Bean was heaping praise on the ESA in public. "The Act's many successes have been achieved with few major conflicts," he said in 1993. "The Act has succeeded because it is flexible and sensitive to economic concerns," he cooed. "The ESA is a remarkable success," boasted Bean in 1995, "a model for the rest of the world." Even as recently as 1996, a few months before EDF released Rebuilding The Ark, Mr. Bean continued to write about how "the Act has helped put many species back on the road to recovery."

Thus, at the very same time Michael Bean was praising "the Act's many successes" in 1996, he was co-authoring the EDF report that lambastes the ESA's many failures.

"According to the most recent assessment by the US Fish and Wildlife Service, fewer than a tenth of all listed species for which it is responsible are actually improving in status," the report concludes. "Nearly four times that number are declining. And for about a third, the Fish and Wildlife Service simply lacks the resources to determine how they are fairing."

Fully two-thirds of listed species are either declining or their status is unknown. Of the species found exclusively on federal land, only 18 percent are improving. Of the species found exclusively on private lands, only three percent are improving. Yet, "even the low number included in the 'improving' category represents a stretch, for the category includes several species whose progress has been modest at best," admit EDF's David Wilcove and Michael Bean.

This is an alarming admission, especially given what Wilcove told Audubon magazine only seven months earlier. "Opponents think that this twenty-two-year-old act should have repaired the damage of centuries. A much better measure is the number of species that are stable or increasing in number," he huffed.

By the end of the year, Dr. Wilcove was saying that the ESA "is only holding the line on losses and it doesn't even do that very well." It would appear that some new earth-shattering information was availed to EDF in the intervening months. But in fact, the data to which EDF is now referring was published in 1994 – and is virtually identical to government data published in 1990. While it is nice that EDF is finally acknowledging what many of us have been saying for years, they should not be congratulated for taking so long to finally come clean.

After so many years of celebrating the ESA's purported success, perhaps it is understandable that EDF would have such a hard time admitting its demonstrable failure. But clearly, the time has come to fundamentally reform the ESA, as much as environmental activists may hate to admit it.

When Senator Slade Gorton (R-WA) introduced his ESA reform bill in 1995, Michael Bean derided it as a timber industry bill. "It's quite clear," said Bean, that "those industries wrote this bill for him." But when Rep. James Saxton (R-NJ) held a briefing on a draft of his ESA bill in 1996, Mr. Bean answered all the tough questions Saxton's staffers were unable to answer. That's not to say EDF necessarily wrote the Saxton draft. The last version I saw bore the fax stamp of the World Wildlife Fund – clear evidence that Saxton's office received the proposal from WWF.

The irony in all this is that neither proposal would solve the ESA's intrinsic problems. Neither removes the ESA's draconian land-use regulations; and neither compensates landowners for regulatory takings. Thus, neither would do much to stem the perverse incentives and resulting habitat loss that supposedly concern EDF. Indeed, Saxton's proposal would exacerbate the ESA's problems by codifying an even more extortionate system of federal land-use control than exists today.

If the recommendations contained in EDF's report become law, however, landowners who do not already have endangered species on their property could be better off than under the current ESA. If such people went to the expense of attracting endangered species to their land, and satisfied whatever arbitrary conditions the Interior Secretary may impose, then those landowners might be allowed to use their land without threat of federal penalty. But EDF's proposals will do nothing to solve the problems of landowners and wildlife on land where endangered species already exist. Because over 75 percent of currently listed species depend on private property for habitat, this is a major concern.

EDF proposes to "create incentives to reward good stewardship," including tax breaks and cash payments. These are good ideas, but they are negated by EDF's other proposals. EDF recommends that government "take action earlier" and protect "ecosystems," increasing the burdens of land-use regulations. EDF also wants to "strengthen the mitigation requirements" of the ESA, which would mean taking more land and money from private landowners in exchange for permission to use their own land.

More regulation cannot be cast as an improvement over current law. Positive incentives are great, but they are meaningless if the negative incentives are increased. The cost of EDF's proposals far outweighs their benefit to most landowners, thus negating whatever ameliorative effects positive incentives may have.

In short, EDF has identified a serious problem and proposed to make it worse. The threat of punitive land-use regulation creates enemies of wildlife among landowners who have any interest or need in using their own property. As long as it is bad for landowners, the ESA will remain bad for wildlife. There are many other problems with the ESA, but that one will sink the ship.

Ike C. Sugg is CEI's Fellow in Wildlife and Land-use Policy.