The Flaws in the Endangered Species Act

jaguar,fish and wildlifeThis year, the Endangered Species Act (ESA) turns 40. I consider this act flawed because it provides no positive incentive for conservation on private land. Quite the contrary, the ESA actually encourages private property owners to rid their properties of endangered species and their habitats because of the restrictions in beneficial use the Act imposes on property owners. Ever hear the phrase “shoot, shovel, and shut up?”

Besides trampling on property rights, the ESA destroys industries (remember the timber industry in the northwest?), it is very expensive (regulatory costs exceed $1.2 billion per year), and it is ineffective. The ESA should be replaced with a voluntary, non-regulatory, incentive-based act. Make conservation profitable.

As of July 8, 2013, there are 1,241 animals and 856 plants listed as endangered or threatened. Hundreds more species are candidates for listing. After 40 years and billions of dollars, of all the species that were listed, only 47 have been removed from the list, of which 18 were removed due to erroneous original data, nine became extinct, and the remaining 20 are considered recovered. Those recoveries, however, were due to factors that were either not related to, or predated ESA. For instance, recovery of the American peregrine falcon, arctic peregrine falcon, and brown pelican is attributed to the banning of DDT according to the U.S. Fish & Wildlife Service (FWS).

The ESA is administered as an “absolute” law, holding precedence over all other land usage and in the process “taking” private property rights. The law forbids the killing, trapping, harming or harassing of endangered species, and the courts have broadly interpreted those prohibitions. The FWS could regard the entire country as critical habitat for something because there is no incentive not to, and to do so, just increases their power. This lack of accountability is a recipe for abuse by a bureaucracy run amok. The ESA tramples on private property rights more than any other federal statute. Under the ESA, individual Americans have been prevented from building homes, plowing fields, filling ditches, cutting trees, clearing brush, and repairing fences, all on private land. The federal government has even barred private landowners from clearing firebreaks to protect their homes from fire hazards or defending themselves against invasion by wild animals such as grizzly bears.

The structure of ESA encourages frivolous lawsuits. According to attorney Karen Budd-Falen, “Species are listed by a petition process, which means that anyone can send a letter to the federal government asking that a species, either plant or animal, be put on the ESA list. The federal government has 90 days to respond to that petition, no matter how frivolous. If the federal government fails to respond in 90 days, the petitioner – in the vast majority of cases, radical environmental groups – can file litigation against the federal government and get its attorneys fees paid. The simple act of filing litigation does not mean the species will get listed or that it is warranted to be protected; this litigation is only over whether the federal government failed to respond to the petition in 90 days. Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11,743,287 in attorneys fees and costs.” The act of responding to lawsuits causes government biologists to spend much less time on conservation work.

Radical environmental groups flood the Feds with species petitions. Budd-Falen noted that “On July 12, 2011, the Justice Department and the U.S. Fish and Wildlife Service announced an historic agreement which will require the American taxpayers to pay $206,098,920 to just process the paperwork deciding whether to include over 1000 plants, bugs, worms, and other assorted creatures on the Endangered Species list. None of this money goes to on-the-ground conservation; this taxpayer funding is just to process petitions filed by only two, out of dozens, of radical environmental groups who think newts and moths are more important than the elderly or our children.” The two environmental groups referred to are the Wild Earth Guardians and the Center for Biological Diversity.

Bad science has characterized species listing under ESA. For instance, in southern Arizona, the listing of the pygmy owl ignored its abundance in its core area of Mexico and South America. Arizona riparian areas represent a fringe habitat. The owl’s true riparian habitat has not existed in Tucson for 100 years, and the little critters now seem to favor suburbia. While core habitat may deserve protection, splinter groups in peripheral areas are ephemeral and need not receive special attention to preserve the species. The same goes for the jaguar, see Jaguars and Junk Science.

It is time to consider repealing the ESA and replacing it with a more effective system that encourages conservation with positive incentives. Reform of environmental law is the subject of an essay by Jonathan Alder in the Duke Environmental Law and Policy Forum entitled “Conservative Principles for Environmental Reform.”

Alder concludes his 28-page essay with this paragraph:

“Conservatives need to recognize that the goal of environmental protection is quite compatible with conservative principles of governance. Recognizing the reality of environmental problems does not require abandoning a commitment to limited government, free enterprise, or constitutional constraints. Embracing environmental protection does not require embracing the Environmental Protection Agency. Yet until conservatives are willing to articulate an environmental vision, they will cede the ground to those on their left—and there is no greater way to ensure that environmental policy will embody the sorts of governmental interventions and controls that conservatives so detest.”

Copyrighted by Jonathan DuHamel. Reprint is permitted provided that credit of authorship is provided and linked back to the source.

4 Comments on "The Flaws in the Endangered Species Act"

  1. SilverTones | July 9, 2013 at 5:32 am |

    Mining projects on private/state/federal property are frequently delayed to address the potential existence of threatened and endangered species and cultural resources. Real estate developments have plowed over untold thousands of cultural resource sites, saguaros and other protected vegetation, and T&E species.

  2. The ESA should be repealed by Presidential Executive Order. The Act has been abused and used as a weapon to trample private property rights and kill jobs by “Gang Green” environmental wacko groups. Let the individual states and local communities have an ESA if they so desire, answerable to the local citizens. If the ESA would have been around in the 1950’s & 60’s, we wouldn’t have the interstate highway today.

  3. SilverTones | July 9, 2013 at 7:59 am |

    Good opinion by Bret Stephens, WSJ. Can Environmentalists Think?
    http://online.wsj.com/article/SB10001424127887323368704578593562819939112.html?mod=trending_now_5

    Practical environmentalism means recognizing what is the foundation of our modern lifestyle (metallic, energy, & industrial mineral resources, petroleum and natural gas) and trying to figure out the least environmentally damaging means to extract these resources. We can’t live in a hermetically sealed environment with zero impact on the planet and still maintain our standard of living.

  4. It’s not about the environment. It’s all about control. Look at what a pygmy owl can control. Even if the pygmy owl does not exist in that area. Just a threat is enough to stop any develop or citizens being able to use their property. Remember Tombstones water problem? Get these laws off the books and stop allowing these control freaks to run our lives.

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