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The ESA at 30: A Mandate for Modernization A
report by
The Endangered Species Act (ESA) was signed into law on December 28, 1973, by President Richard Millhouse Nixon. “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed,” he said. “It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans.” Thirty years after he signed the landmark law, President Nixon’s words still ring true. Recognizing what would forever be a noble and important cause, Nixon sought to give the government both the authority to make early identification of endangered species, and the means to act thoroughly to conserve and recover them to healthy populations.
Efforts to protect and recover these species began long before the ESA was signed into law. For example, the Bald Eagle Act of 1940, which made it illegal to hunt the eagle, many state and local conservation efforts, and a ban on the poison DDT all contributed to the more robust Bald Eagle and Peregrine Falcon populations the United States enjoys today. Unfortunately, success stories in species recovery due to the ESA are few and far between. The law has fallen victim to unintended consequences, partisan politics, and counter-productive lawsuits filed by environmental organizations. These forces have rendered the ESA a “broken” law that is in desperate need of updating and modernizing after thirty years of failure. Congress has an obligation to address these unintended consequences and refocus the law's application on species recovery, its original intent. II. ESA by the Numbers: 12 out of 1304 recovered The Endangered Species Act has become a program that checks species in for protection, conservation, and recovery, but never checks them out. According to the U.S. Fish and Wildlife Service (FWS), there are currently 1265 species in the United States that are listed under the ESA as threatened or endangered. An additional 39 species were listed and de-listed over the last thirty-years, for a grand total of 1304 species in the Act’s history. Most Americans are surprised to learn that only 12 of these 1304 species have been recovered, according to the Fish and Wildlife Service’s data on de-listed species. Given three decades, this .01 percent rate of success for recovery is not encouraging. Nor is the FWS's statistics showing that only 30 percent of species are “stable” and only 9 percent are “improving.”
Moreover, numerous qualified studies assert that none of the species listed by the FWS to have been “recovered” in the United States may reasonably be claimed to have recovered as a result of the ESA. The fact is that the few recovery success stories are not even attributable to regulatory protections under the ESA, but unrelated factors such as bans on DDT and other organochlorides. For example, in its 1997 report, Conservation Under the Endangered Species Act, A Promise Broken, The National Wilderness Institute (NWI) states that “there is no case which required the ESA to bring about the improvement of a species” and in at least four of the claimed recovery cases there was “little demonstrable change in the species’ condition attributable to anything other than data error.” In short, the Endangered Species Act has failed to recover species, which was the intent of the law. As a result, the ESA is becoming more and more of an unsustainable program. In addition to the 1265 species currently listed nationwide, 257 additional ”candidate” species are now proposed for listing.
III. Unintended Consequences Environmental Litigation The Law of Unintended Consequences has been especially unkind to the Endangered Species Act. What was born of a desire to apply American ingenuity to the cause of saving species has become a tool not for species recovery, but for political, ideological, and fundraising goals. Under the mantra of species protection, radical environmental organizations use the ESA to raise funds, block development projects, and prohibit legal land uses of nearly every kind. By filing inordinate numbers of lawsuits under the ESA, environmental organizations have hand-cuffed the FWS to courtroom defense tables, draining the time, money, and manpower Congress intended the service to spend on species recovery in the field. According to the Tulane University Environmental Law Journal, “The entire ESA budget runs the risk of being consumed by the bottomless pit of litigation driven listings and designations. It does not end there. As Yogi Berra might say, the bottomless pit is getting even deeper: as soon as the FWS makes a decision driven by a court imposed deadline, it is being sued on the merits of that decision.” (16 Tul. Envtl. L.J. 257) “This is where the FWS is today: the decisions relating to ESA listings and designations, arguably the most important decisions under the law because they trigger all other protections, are driven solely by litigation. The FWS has lost all flexibility in making its own determinations as to which species is most endangered and should be listed first, and which habitat is most vulnerable and should be designated as critical. Litigation-driven actions prioritize only those species that have a plaintiff behind them (and often a larger political objective), rather than those species that are most endangered.” (16 Tul. Envtl. L.J. 257) In yet another substantive analysis of ESA lawsuits filed by environmental organizations, the Sacramento Bee found that government biologists are being forced to spend more time on “legal chores” than on field work to recover species. The result? These organizations and their attorneys are collecting millions while species are ignored. (Sacramento Bee, Environment, Inc.) Litigation involving the Endangered Species Act has become like 'piecework' for these groups, as they seek attorney's fees and court awards from the federal government for the suits they file. In fact, the flood of environmental litigation became so great that it bankrupted the Fish and Wildlife Service’s fund for critical habitat in May of 2003, (U.S. Department of Interior). But this is certainly not new to the current Administration. In a 2001 New York Times op-ed, former Secretary of the Interior Bruce Babbitt described the effects of environmental litigation thusly: “Struggling to keep up with these court orders, the Fish and Wildlife Service has diverted its best scientists and much of its budget for the Endangered Species Act away from more important tasks like evaluating candidates for listing and providing other protections for species on the brink of extinction.” “The best alternative is to amend the Endangered Species Act,” Babbitt continued, “giving biologists the unequivocal discretion to prepare maps when the scientific surveys are complete. Only then can we make meaningful judgments about what habitat should receive protection.” Science Not Defined The Endangered Species Act relies on a standard of “best scientific data available” for regulatory decision-making such as listing a species as threatened or endangered and designating critical habitat. Unfortunately, Congress failed to define “science” when the law was written in 1973 and to specifically outline whether or not particular data would meet this standard. The problem with a “best available data” standard is that ‘best’ is a comparative word. Thus the data need not be verified, reliable, conclusive, adequate, verifiable, accurate or even good. The best available data standardhampers the effectiveness of the program. This is certainly true in practice. Agencies that evaluate scientific data under the ESA - and courts forced to evaluate agency decisions based upon such data - have found their efforts severely hamstrung by two factors: (1) the ESA’s lack of definitional terms and (2) the fact that species data is, by its very nature, often vague, ambiguous, and frequently subject to best-professional judgment rather than objectively quantifiable. “The scientific community would generally agree that, in terms of ESA, the ‘best’ science would be comprised of data that had been collected by established standards or protocols, properly analyzed, and then peer-reviewed before published or released to the public. Such information is assumed to be reliable and the conclusions drawn usually can be duplicated to test the accuracy of the information. Unfortunately, the ESA currently has no such standards in either the provisions of law or in the accompanying regulations.” (16 Tul. Envtl. L.J. 387) Some of our nation’s other environmental laws have avoided this problem by requiring peer review. The Safe Drinking Water Act (SDWA), for example, employs the “best available” standard, but also requires that data be “peer reviewed” and “in accordance with sound and objective scientific practices.” Given the fact that FWS will even consider oral and anecdotal data on species, the need for a more rigorous scientific review for the ESA, such as that used in the SDWA, is clear. The absence of clear, objective standards has resulted in a litany of data errors and poor decisions on species protection and critical habitat designations. These errors waste valuable agency resources that could be spent on species in proven need of recovery efforts. Shoot, Shovel, and Shut-up Another major unintended consequence of the ESA stems from the fact that it creates an adversarial relationship between government regulators and the people who are most critical to the goal of saving endangered species: America’s farmers, ranchers, and private property owners. Known as the “shoot, shovel, and shut up” syndrome, research shows that the ESA has created perverse incentives that prompt land owners to actually destroy species habitat to rid their property of the liability that comes with endangered species. Michael Bean of Environmental Defense has noted that ESA regulations
have “unintended negative consequences, including antagonizing many
of the landowners whose actions will ultimately determine the fate
of many species.” In addition, “increasing in evidence that at least
some private land owners are actively managing their land so as to
avoid potential endangered species problems…not the result of malice
toward the environment…but fairly rational decisions motivated by
a desire to avoid potentially significant economic constraints…predictable
responses to the familiar perverse incentives that sometimes accompany
regulatory programs.” (1994 Speech, FWS) In the recent case of the Klamath Basin and the endangered sucker fish, for example, it was determined that the sucker fish needed water supplies more than the area's farmers needed it to irrigate their crops and feed their families. The result was a devastating loss of family farms, human life and economic vitality. Only after the damage was done, the National Academy of Science (NAS) determined that decision by the federal government to shut off irrigation water to nearly 1,200 farmers and ranchers had “no sound scientific basis.” Or, consider the case of the endangered longhorn elderberry bark beetle and the Arboga levee in California. Weak levees went without repair because the work might have disturbed the habitat of the endangered beetle. The result: a huge flood broke the levee at the exact point where repairs were needed. Three human beings lost their lives. Approximately 500 homes, 9000 acres of prime farmland, and the four largest employers in the poorest county in the state were flooded. Overall, 35,000 people where displaced. These and hundreds of other horror storiesand cases of government abuse (report pages 25-34) under the ESA have fostered an adversarial relationship between government regulators and private property owners. This is incredibly deleterious to the goal of saving species because over 90% have habitat on private lands. (General Accounting Office, Endangered Species Act: Information on Species Protection on Nonfederal Lands.) IV. Problems in Diagnosis and Prescription When the science is in fact accurate in “diagnosing” a species as threatened or endangered, the “treatment” aspects of the law remain fatally flawed. They are ambiguous, open to arbitrary personal judgment and do not rely on sound science or peer-reviewed research as outlined above. Known as “listing” and “critical habitat” respectively, these key elements of the act are responsible for the misdiagnosis of species as endangered or threatened and the application of a one-size-fits-all solution. When a species is listed for protection, treatment comes in the form of critical habitat designations, which forbid the use of lands by or for anything but the species. Critical habitat is one of the most perverse shortcomings of the act. It has been interpreted to mean that if an animal is determined to be in trouble, there is only one viable option — to designate critical habitat — and “let nature take its course.” This “hands-off” approach fails to recognize amazing strides in technology, biology and medicine over the last thirty years, which is why FWS has long maintained that critical habitat designations afford little protections for the species. It is the FWS’ lowest priority. Yet, because of litigation, the FWS will use the entire amount capped for designations for that purpose. It is thus devoting two-thirds of its listing program to actions it believes have little value for the species. (16 Tul. Envtl. L.J. 257) Indeed, both Republican and Democrat administrations have agreed that critical habitat designations contribute little, if anything, to species recovery. The Clinton administration's, Fish and Wildlife Service Director, Jamie Rappaport Clark, testified before Congress in 1999 that the critical habitat provision “provides little additional protection to most listed species, while it consumes significant amounts of scarce conservation resources.” ”Critical habitat has turned our priorities upside-down. Species
that are in need of protection are having to be ignored. This is a
biological disaster.” Likewise, Craig Manson, the current Assistant Secretary for Fish and Wildlife and Parks, has testified that “the present system for designating critical habitat is broken” and that it provides “little real conservation benefit” but “consumes enormous agency resources and imposes huge social and economic costs.” (Manson testimony) V. Updating and Modernizing the ESA Many observers of the Endangered Species Act have gauged the law’s performance on how many species are listed annually and have avoided extinction. However, merely preventing extinction is not a long-term measurable success, nor was it the intent of the law. The law was intended to conserve and recover America’s endangered species. In that light, the Act has failed. It must be updated and modernized to focus on results for species recovery or it will continue to be an unsustainable program that checks species in, but never checks them out. Among the modernization priorities: *Incentivize Stewardship: Because America’s endangered species reside predominantly on private lands, Congress must take steps to get landowners “on the side of the species” by removing unintended consequences and incentivizing species stewardship. Establishing well-defined scientific standards for listing and critical habitat decisions will be instrumental to this effort by reducing the incidence of data error and focusing the disbursement of valuable agency resources in species most in need of agency attention. *Focus on Recovery: Generally, the Act must also place greater emphasis on recovery actions over bureaucratic listing actions. It must encourage the use of innovative approaches to increase species populations. This can be done, in part, by moving the designation of critical habitat into the development of species recovery planning. *Encourage States to play more active roles in state and local based innovation and collaboration that recover species. Additional Informational Resources The Congressional Research Service - www.crs.gov - The National Endangered Species Act Reform Coalition - www.nesarc.org - Western Governor's Association - www.westgov.org - The National Wilderness Institute - www.nwi.org -
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We
as a people have made great strides in species conservation in the
second half of the 20th century. In fact, a few of the most widely-recognized
species in the world once stood at the brink of extinction in the
United States, but have since sustained their populations. The American
Bald Eagle, the American Alligator, and the Peregrine Falcon, for
example, are great success stories in American conservation efforts.