Here is the big lie about the Endangered Species Act (ESA). It doesn’t really save species. The handful of successful delistings are for species that shouldn’t have been on the list to begin with. A new bill filed in Congress last week to reform the Act addresses what happens after a species is listed with some much needed reforms. But it does not address the core problem — ensuring only actual endangered and threatened species are protected. We offer several recommendations that will do just that.
Anyone who has tracked the carnage that follows an endangered species listing will recall how protecting the spotted owl wiped out the Northwest timber industry. Or how predator protections for the gray wolf and grizzly bear have endangered lives and destroyed agriculture operations. More recently, as ESA specialist Rob Gordon points out, protections for the Braunton’s milk-vetch plant played a major role in the recent LA wildfires that ripped through populous neighborhoods.
A hard look at the science behind these species’ listings shows they should have never been federally protected to begin with. In fact, this is true for many species currently on the list, costing incalculable lost revenue to landowners, driving enterprises out of business, and running up the federal regulatory tab paid by tax-payers.
Rob Gordon exposed all of this last year when he released the report “The Endangered Species Act at 50,” published by the Western Caucus Foundation. It turns out the ESA is really good at controlling property uses and strangling landowners’ activities, but not very good at focusing on the few species that could benefit from protection.
One key conclusion he found was that the few species that had been cited as ESA success stories could not be attributed to measures carried out under the Act. As Gordon explains:
“Unfortunately, at the half century mark, with the listing of 1,667 threatened or endangered species, there are only 62 officially ‘recovered’ species. Of these, 36—nearing 60%—are not real conservation ‘success stories.’ These ‘recoveries’ are hollow, as they are inaccurate proclamations attributable to an erroneous original determination that the species was endangered or threatened.”
We offer six key provisions that could be added to the new bill to address the first problem with the ESA, getting the listing and delisting process right.
- Remove “distinct population segments” from “species” definition.
This would prevent listing species that are thriving overall from being listed simply because they are sparsely populated in one area. Or, as is often the case, because their range is split between two political boundaries. The wolverine, Canada lynx and Yellow billed cuckoo are three good examples.
- Remove listings made under the original “species” definition.
Congress amended this definition in 1978 to make what qualified for a species more precise. The old definition allowed for groups of species and subspecies that were widespread to be listed, hence prompting the change. These include the gray wolf and grizzly bear. However, many of these species that meet the old definition, but not the new, still remain protected. Congress could simply delist those that no longer meet the statutory definition of a “species.”
After asking GROK how many species were listed as endangered by 1978, the AI software estimates approximately 125 endangered and 25 threatened were on the list at that time. A reasonable assumption is that most of these are still being protected.
- Remove “throughout all or a significant portion of its range.”
This language has allowed the federal government to list an endangered or threatened species even when it is not in danger simply because it is not prevalent in a portion of its presumed range. The purpose of the Act is to protect species, not restrict every acre of land the species might utilize.
- Clarify and limit the scope of “critical habitat.”
The new ESA reform bill does a good job at limiting the current definition of “habitat.” However, more could be done with the “critical habitat” definition to ensure only lands necessary for the species “survival” are included, and that State and private lands shall not be considered unless they are essential for the species continued survival.
- Require Congressional review of critical habitat designations over 100,000 acres.
In recent years, the federal government has unnecessarily designated millions of acres as critical habitat. For example, recently, the National Marines Fisheries Service (NMFS) designated two areas, each over 160 million acres, for the bearded and ringed seals. By contrast, the State of Texas contains 172 million acres. Congress needs a way to rein in the federal agencies when they go too far, which is often.
- Reduce Agency Consultations
Section 7 of the ESA requires an agency to consult with the U.S. Fish and Wildlife Service (USFWS) and/or NMFS when an action “authorized, funded or carried out” by that agency may impact an endangered species or its habitat. This creates miles of bureaucratic red tape, long delays, and potentially endless “mitigation” requirements for otherwise normal agriculture and business activities.
For instance, when a landowner enrolls in the Conservation Stewardship Program (CRP), they are creating a federal nexus to their private lands. The Natural Resource Conservation Service (NRCS) may be required by USFWS to “consult” and prepare a biological study to determine whether a species or its habitat is being impacted by the landowner’s activities.
By defining two phrases and two terms, Congress could limit the number of instances that consultations currently take place, significantly reducing the regulatory burden and cost imposed by the Act. These are “jeopardize the continued existence of,” “destruction of adverse modification,” “action,” and “agency action.”
What Makes Good Policy?
Ultimately, the test of any good policy is how it impacts the small landowner. If a family with 120 acres could continue to operate their thriving business, without federal conservation grants or jumping through mitigation hoops, then the policy will be successful. If instead they must hire an attorney, in this case specializing in ESA law (at $600 an hour) in order to survive the listing, it will be bad policy.
The key to making the ESA helpful to species and humans is to make sure the new reforms do more than make it easier for good lawyers to litigate and win. It must also ensure that only species that warrant protection get on the list.
The middle class American landowners who provide the bulk of species habitat must not be punished because they, not the government, are providing the best habitat. Private ownership is far superior to government managed lands. Punitive laws and regulations that harm landowners, like the ESA, are counter productive to saving species. Today, Congress has the best opportunity in 30 years to make the fix.
