The Leaky Ark
Wednesday, October 5, 2011
The failure of endangered species regulation on private land.
The Endangered Species Act (ESA) was enacted with much fanfare and little controversy in 1973. At the time, few anticipated how broadly the law would affect both government and private activities.1 Yet ever since its celebrated passage, the nation’s premier wildlife conservation law has been a source of conflict and controversy; it has been rightly described as “one of the most contentious of our federal environmental laws.”2 The ESA is a focus of controversy in part because of its strength. Indeed, the ESA may be the most powerful environmental law in the nation.
For all the Act’s strength, it has not been particularly effective at conserving species. Although it is the “most comprehensive of all our environmental laws,”3 it is not, by any measure, the most successful. Even strong advocates of regulatory measures to protect endangered species habitat acknowledge that “no one … suggests that the federal ESA is realizing congressional intent or that it has been implemented rationally or responsibly.”4 A 2008 review concluded that the best one could say is that “the scientific question of whether the ESA works effectively to protect species remains open.”5
One of the primary reasons that the ESA has failed to realize its objectives is that it is ineffective at preserving habitats that are found on private land. Habitat loss is the primary threat to endangered species in the United States.6 At present, most endangered and threatened species’ habitat is privately owned: over three-quarters of threatened and endangered species rely upon private land for some or all of their habitat.7 Thus, even if all federal lands were managed exclusively for species conservation, this would be insufficient to save many imperiled species because a significant percentage are not even found on these lands.8 Private land is also often (though not always) ecologically superior to government lands of the same type.9 If the ESA is to be effective at conserving species by preserving their habitats, it must be effective at doing so on private land. However, the ESA’s greatest failing has been species conservation on private land.10
As originally written and implemented, the ESA sought to conserve endangered species found on private land by regulating land use so as to prevent the adverse modification or destruction of species habitat. Landowners were limited in their ability to make potentially harmful land use changes and threatened with civil or criminal prosecution for violating the Act’s strictures. Only by regulating land use in this fashion, many believed, could endangered species be saved. Yet this approach has proven largely ineffective. Whatever successes the ESA has had in other contexts, such as by forcing federal agencies to consider how their actions affect imperiled species, the regulatory model has failed on private land. As Science reported in 2005, “it’s become clear over three decades that its regulatory hammer isn’t enough.”11 There is little question that “a purely regulatory approach will never be able to maximize the value of the working landscape for biodiversity.”12 The question today is what, if any, role can regulation play in encouraging conservation on private land.
The Endangered Species Act
Nearly four decades after the ESA’s adoption, there is ample reason to doubt whether the law has fulfilled its promise.
The groundwork for the Endangered Species Act was laid in the 1960s, as the modern environmental movement came of age and the federal government began to flex its regulatory muscles in environmental policy.13 In 1966, Congress passed the Endangered Species Preservation Act, which authorized the Secretary of the Interior to establish a list of endangered and threatened species and to purchase land deemed important for conservation purposes. A prohibition on the import of endangered species for most purposes followed shortly thereafter in 1969; other limits on trade in endangered species and their products were established in the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Congress passed the Endangered Species Act in 1973 by a wide margin. “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed,” declared President Nixon when he signed the bill into law.14 He proclaimed that “countless future generations” would have their lives enriched and the nation would be “more beautiful in the years ahead” due to the Act.15
The 1973 Act built upon Congress’s prior enactments by incorporating the endangered and threatened species lists already established. It also established new procedures for listing species, designating critical habitat, and developing species recovery plans. Most significantly, the new law included powerful provisions designed to limit government and private actions that could imperil listed species. Under Section Seven, federal agencies are required to consult with the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) to ensure that no action “authorized, funded, or carried out” by that agency will “jeopardize the continued existence of any endangered species or threatened species” or destroy critical habitat for such species.16 Section Nine prohibits anyone from engaging in the unpermitted “taking” of any endangered species.17 Violators are subject to civil and criminal penalties. As defined in the Act, “taking” an endangered species not only includes killing, wounding, or capturing an endangered animal, but also otherwise harming the species as a whole, by either destroying or adversely modifying its habitat.18 Section Ten provides for the granting of “incidental take permits” to authorize activities that would be otherwise prohibited under Section Nine.
In 1978, the Supreme Court held in Tennessee Valley Authority v. Hill that the ESA explicitly placed endangered species conservation above other social goals when in conflict.19 Specifically, the Court held that the consultation requirement of Section Seven “admits of no exceptions” and therefore prohibited completion of the Tellico Dam in Tennessee lest the dam’s construction and operation push a small endangered fish, the Tennessee snail darter, over the brink of extinction. Explained the Court, “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.”20
Congress responded with amendments to impose greater procedures on the listing of new species, to require consideration of economic effects during the designation of critical habitat, and to authorize a special cabinet-level committee, subsequently known as the “God Squad,” to exempt important projects from the ESA’s prohibitions. This latter provision was intended to permit completion of the Tellico Dam, although it did not work out that way: Congress had to come back again and explicitly approve the dam’s construction. Congress amended the law again in 1982, further revising the procedures for listing species and expanding the power of the FWS and NMFS to authorize incidental “takes” of endangered species that would be otherwise prohibited under Section Seven or Section Nine pursuant to habitat conservation plans (HCPs). The Act was last reauthorized in 1988, and that authorization expired in 1992. Though numerous reform proposals have been introduced and debated since, the law has yet to be reauthorized.
Assessing the ESA’s Performance
For all the Act’s strength, it has not been particularly effective at conserving species.
Nearly four decades after the ESA’s adoption, there is ample reason to doubt whether the law has fulfilled its promise. The number of species listed as endangered and threatened has increased exponentially, with no end in sight.21 In 1973 there were only 78 species on the endangered and threatened lists; by 1994 there were over one thousand. In just two decades the list had increased more than twelvefold and continues to climb.
As of August 2009, there were 1,320 species listed as threatened or endangered within in the United States (1,011 and 309 respectively).22 Of these, 573 are animals and 747 are plants. An additional 573 foreign species are listed, bringing the grand total of listed species up to 1,893.23 Of the 1,320 species listed within the United States, the FWS reports that 1,134 are covered by active recovery plans.24
The ESA’s stated purpose is to “conserve” threatened and endangered species.25 As defined by the law, to “conserve” means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” In other words, the express aim of the Act is to recover all imperiled species to the point at which the Act’s protection is no longer necessary.26 As succinctly stated by wildlife law expert Michael Bean: “In a word, the Act’s goal is recovery.”27 This goal may not be realistic with regard to all listed species. Some species are “conservation-reliant” and will require some degree of active support, such as predator control or regular habitat maintenance or modification.28 Nonetheless, conservation-as-recovery is what Congress enacted into law.
Are species recovering? Alas, the aim of species recovery “has been reached in distressingly few cases.”29 As of August 2009, 47 species had been removed from the endangered and threatened species lists.30 Of these, the FWS identified 21 as “recovered.” Seventeen were delisted due to data errors of one sort or another and nine were delisted because they went extinct. An additional 25 species have been reclassified as threatened from endangered, reflecting a significant improvement in their status, while another nine have been reclassified to endangered from threatened.31 The FWS believes another 28 listed species may have actually gone extinct but have yet to be delisted, and at least 42 additional species have gone extinct awaiting listing under the Act.32,33
Of the recoveries, several are foreign species, including three species of kangaroo, and thus not subject to the ESA’s primary regulatory measures. Several others benefited from measures wholly independent of the ESA, such as limits on hunting or the Environmental Protection Agency’s 1972 ban on domestic use of DDT. There is little doubt this latter action was essential to the recoveries of the bald eagle, Arctic peregrine falcon, American peregrine falcon, and brown pelican. The ESA’s role is less clear. Several other species recovered on the island of Palau, including the Palau owl, Palau ground dove, and Palau fantail flycatcher, but this too was largely independent of the ESA.
The number of species listed as endangered and threatened has increased exponentially, with no end in sight.
Where the ESA has led to the recovery of endangered species, it has typically been because there was a specific identified threat that could be readily addressed through direct management measures rather than through the ESA’s primary regulatory provisions. Recovery of the Aleutian Canada Goose, for instance, was facilitated by the removal of predators from nesting grounds, largely on federal lands, and hunting limitations.34 The Robbins’ cinquefoil, an endangered plant, recovered due to changes in land management by the U.S. Forest Service and agreements with a local conservation organization to protect intact populations.35 Thus, it appears the ESA is more effective at addressing some threats to species populations, such as extractive resource use (which primarily occurs on federal land), hunting, and natural threats (e.g. predators), than others.36 As noted above, the law has successfully altered federal land management practices and raised the salience of species conservation in many federal agencies, but it does not appear to have done much to help species on private land.
Defenders of the Act argue that “counting only the number of recovery related delistings does not give a true measure of the Act’s success.”37 Considering the extent to which the ESA has slowed some species’ slide into extinction, stabilized threatened populations, or otherwise increased some species’ chances of survival, provides a more complete picture of the Act’s performance. A 1999 study estimated that the ESA prevented 192 domestic species extinctions during its first 26 years. Using this methodology, the ESA is estimated to have saved 227 species from going extinct in its first 30 years.38 If this estimate is accurate, more species have been saved from extinction than are believed to have gone extinct while under the Act’s protection. The FWS claims that the ESA is having a beneficial effect on some imperiled species: it reported that as of 2007 just over 40 percent of listed species were “doing better” since their initial listing.39
It may take several decades more before we can completely evaluate the ESA’s effect. Species recovery is usually not a quick process. Most listed species were not suddenly imperiled overnight, and recovery may take as long, if not longer, due to a wide range of ecological and reproductive factors. However, although it may be too early to assess the overall performance of the ESA, it is possible to assess how the ESA’s regulatory protections help species. Endangered animal species receive greater regulatory protections under the ESA than endangered plants, yet this does not appear to translate into improved performance.40 A recent study found endangered species are less likely to be improving than threatened species, despite the increased level of regulatory protection. Perhaps the fact that endangered species populations were likely to be in worse condition in the first place explains the better outcome for threatened species.41
The ESA requires the designation of critical habitat when a species is listed as endangered, but such designations have only limited legal import, particularly on private land. Whether designating critical habitat improves a species’s status is disputed. One study found that species for which critical habitat was designated were more likely to be improving.42 Yet a subsequent study found no effect from designation once researchers accounted for recovery spending.43 Indeed, there is some evidence that critical habitat designations can increase development pressure on private land.44
Several recent studies suggest that listing species and funding recovery efforts are beneficial to species, and increasingly so over time. For instance, one study concluded that the longer a species is listed under the ESA, the more likely it is to be stable or improving.45 It also found that the completion of a recovery plan has a similar effect.46 There also appears to be a positive relationship between species recovery and the percentage of recovery goals set out in a species’s recovery plan achieved for that species.47 Yet another recent study found evidence that species-related spending correlates with preventing continued deterioration of a listed species status.48 Yet insofar as these studies rely upon FWS assessments of species “status trends,” they may be questioned. The data upon which status trends are based is “inconsistent and of questionable accuracy” and “trends for some species are simply the best guesses of USFWS personnel.”49 FWS assessments of species status are somewhat subjective, lack transparent criteria, and “may be manipulated to achieve agency objectives.”50
A recent study found endangered species are less likely to be improving than threatened species, despite the increased level of regulatory protection.
With that caveat in mind, there is evidence that ESA-related spending helps at least some species. A 2007 study in Ecological Economics found, consistent with prior research, that “spending is correlated with improved status.”51 This study also found that “ESA-related spending is more effective in preventing deterioration than in promoting improvements in recovery status”52 As the authors explained, “increased spending reduces the probability that FWS will classify a species as extinct or declining,” but “evidence does not support the hypothesis that increased spending leads to increases in the probability that a species is stable or improving.”53 That is, insofar as the ESA helps, it is more effective at preventing extinction than fueling recovery. Yet this result could be explained by the fact that those species identified as having “high recovery potential” are less likely to be declining or extinct, and slightly more likely to be classified as improving.54 This same study found no effect from designation of critical habitat.55
Other recent research casts doubt on the claim that listing species, in itself, is helpful. Indeed, a 2007 study found that listing a species can actually be detrimental if the listing is not followed with significant funding on species recovery.56 Consistent with some prior studies, it found that the ESA can be effective at improving species status with substantial resource commitments, at least in some cases. Specifically, this study found that listing a species alone has no positive effect, but listing combined with funding has a positive effect and listing with little or no funding has a significant negative effect.57 On this basis, the authors concluded that “the ESA works when it is backed up with money, and not otherwise.”58 As the authors explained: “Our analysis suggests that it is not the act of listing itself that matters, but rather high levels of expenditures for recovery combined with listing. Simply listing a species in the absence of such expenditures appears to lead to a decline.”59 The authors could not conclude that the ESA is ineffective, as there is no counterfactual group of unlisted species that receive substantial funding.60 The authors of this study hypothesize that the negative effect of listing without funding is due to perverse incentives on private landowners, and that species-specific funding is a likely proxy for increased monitoring and enforcement of the ESA’s strictures. “Seen in this light, it is only the credible potential of enforcement that renders the ESA effective.”61
Yet a closer look at the data, and especially attention to the fact that different government agencies achieved varying degrees of success in protecting species, may suggest a different conclusion than that only the credible threat of enforcement makes the ESA effective. The study looked at species-related expenditures aggregated by agency, and the results are interesting: “Forest Service spending has the strongest positive effect, followed by the Bureau of Land Management and the Fish and Wildlife Service.”62 In other words, spending by land management agencies appears to be more effective than spending by the primary regulatory agency (which also has some land management responsibilities of its own). This would suggest that spending on species conservation on federal lands is more effective than spending to protect species on private land, or that spending on direct conservation measures is more effective than spending on regulatory programs aimed at controlling private behavior.
While only suggestive, this interpretation is consistent with other research showing that the ESA is more effective on federal land than on nonfederal land. Prior research has found that “species found exclusively on federal lands are more likely to be improving than those with mixed or private ownership.”63 One study in particular found that “the ratio of declining species to improving species is 1.5 to 1 on federal lands, and 9 to 1 on private lands.”64 As Robert Bonnie of the Environmental Defense Fund summarized, “species that occur exclusively on non-federal lands (the majority of which are in private ownership) appear to be faring considerably worse than species reliant upon the federal land base.”65 These findings should not be a surprise, as the ESA can induce affirmative conservation measures on federal lands but can do little more than prevent harm to species on nonfederal land, often at the cost of discouraging voluntary conservation. Insofar as many listed species are conservation dependent, this can make a real difference.
The Private Land Problem
As noted above, habitat modification is the greatest threat to endangered species, and the lion’s share of endangered species habitat is privately owned. Therefore, if endangered species habitat is not preserved on private land, many endangered species will not survive. There are many species, like the red-cockaded woodpecker, that rely upon private land and are not effectively protected. “We have too many cases like it, where a species is listed for years, but the population continues to go straight down the tubes in spite of this allegedly stringent and restrictive law,” according to Michael Bean.66
So long as privately owned habitat is subject to greater regulatory burdens than other land, there will be an incentive against owning and maintaining land with habitat characteristics.
Why is the ESA failing to conserve species on private land? The most likely culprit is the structure of the ESA itself and the incentives it creates for private landowners. In the simplest terms, the ESA penalizes owners of species habitat and so discourages habitat creation and conservation on private land. Under Section Nine of the Act, it is illegal for a private landowner to engage in activities that could “harm” an endangered species, including habitat modification, without first obtaining a federal permit. Acquiring permits may be costly, time consuming, and can be the source of substantial uncertainty, particularly for smaller landowners, notwithstanding recent efforts to provide landowners with regulatory assurances and facilitate habitat conservation planning. “Taking” a species without a permit, including by adverse habitat modification, can lead to fines of up to $25,000 and even jail time. While not always stringently enforced, the threat remains, and the FWS is notoriously slow to approve activities that could harm species habitat.
Section Nine is not the only portion of the Act that affects private landowners. Section Seven constrains other actions on private land that are subject to federal permitting requirements. For instance, the U.S. Army Corps of Engineers will not grant a permit to fill a wetland under Section 404 of the Clean Water Act if the wetland is potential endangered species habitat unless it can ensure the action will not jeopardize a listed species or its habitat. To meet this requirement, a landowner may be required to mitigate her development by acquiring and conserving multiple acres of wetlands for each one she seeks to develop.
These requirements can reduce private land values and antagonize private landowners who might otherwise cooperate with conservation efforts. As several prominent conservation biologists observed in Conservation Biology, “the regulatory approach to conserving endangered species and diminishing habitats has created anti-conservation sentiment among many private landowners who view endangered species as economic liabilities.”67 They further explained:
Landowners fear a decline in the value of their properties because the ESA restricts future land-use options where threatened or endangered species are found but makes no provisions for compensation. Consequently, endangered species are perceived by many landowners as a financial liability, resulting in anti-conservation incentives because maintaining high-quality habitats that harbor or attract endangered species would represent a gamble against loss of future opportunities.68
As FWS Director Sam Hamilton observed in 1993, when he oversaw FWS efforts in Texas: “The incentives are wrong here. If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears.”69
Many landowners are very willing to cooperate with conservation goals so long as they are not forced to bear the lion’s share of the cost.
As a consequence of these negative incentives there is less and lower-quality habitat available to endangered species on private land.70 Such regulations may even encourage landowners to destroy or degrade potential habitat on their land. It is not illegal to modify land that might be considered endangered species habitat in the future, nor are landowners required to take affirmative steps to maintain endangered species habitat. Yet even if such actions are not taken, the Act creates substantial incentives for private landowners to discourage species conservation on their own land.
There are numerous accounts of landowners engaging in preemptive habitat destruction—that is, perfectly legal measures to make their land less hospitable to current or potential listed species before it is subject to regulation. These accounts have been a staple of debates over the ESA for years and are not confined to a handful of species or one region of the country. In the Pacific Northwest, for instance, the FWS found that land-use restrictions imposed to protect the northern spotted owl scared private landowners enough that they “accelerated harvest rotations in an effort to avoid the regrowth of habitat that is usable by owls.”71 Meanwhile, down in Texas, landowners razed hundreds of acres of juniper tree stands after the FWS listed the golden-cheeked warbler as an endangered species.72 At the same time, landowners in California destroyed vegetation helpful for endangered species to prevent potential occupation, even at great personal expense. Said one, “the risk of not doing it is too great.”73
Several recent empirical studies confirm the negative effects of the ESA on private land conservation. Two such studies found evidence of preemptive habitat destruction by forest landowners in the eastern United States due to the listing and presence of red-cockaded woodpeckers. The first found that private landowners engaged in preemptive habitat destruction when the presence of endangered red-cockaded woodpeckers placed the landowners at risk of federal regulation and a loss of their timber investment.74 Providing habitat for a single woodpecker colony could cost a private timber owner as much as $200,000 in foregone timber harvests.75 To avoid the loss, those landowners at greatest risk of restrictions were most likely to harvest their forestlands prematurely and reduce the length of their timber harvesting rotations.76 The ultimate consequence of this behavior was the loss of several thousand acres of woodpecker habitat, a major habitat loss for a species dependent upon private land for its survival.77
The second study of landowner responses to red-cockaded woodpeckers confirmed the existence of widespread preemptive habitat destruction in southeastern forests.78 Specifically, this study found that “regulatory uncertainty and lack of positive economic incentives alter landowner timber harvesting behavior and hinder endangered species conservation on private lands” and that “a landowner is 25% more likely to cut forests when he or she knows or perceives that a red-cockaded woodpecker cluster is within a mile of the land than otherwise.”79 Thus, this study concluded, “at least for the [woodpecker], the ESA has a strong negative effect on the habitat,” and the effect appears to be “substantial.”80
The perverse incentives of the ESA unfortunately do not affect only the woodpeckers and other species dependent upon private timberland. A 2003 study published in Conservation Biology found that listing a species could undermine other species and habitat conservation on private land.81 Based on surveys of private owners of habitat for the Preble’s Meadow jumping mouse, this study found that a substantial percentage of landowners would respond to a species listing by making their land less hospitable for it, and that “the efforts of landowners who acted to help the Preble’s were cancelled by those who sought to harm it.”82 This led the study’s authors to conclude that “as more landowners become aware that their land contains Preble’s habitat, it is likely that the impact on the species may be negative.”83
The listing process should be insulated from political and economic pressure.
These studies, taken together and combined with the wealth of anecdotal accounts, provide powerful evidence that the ESA has the potential to discourage species conservation on private land. Worse, they suggest that the net effect of the ESA on private land could be negative, at least for some species. Recent administrations have sought to offset these effects through various programs and initiatives designed to encourage voluntary conservation efforts and provide landowners with greater regulatory certainty. Yet such regulatory assurances and “safe harbors” can only go so far to reduce the economic consequence of species listings for private landowners, and there is only so much flexibility in the law itself. Such reforms may ameliorate the anti-environmental incentives created by the Act, but they do not eliminate them.84 So long as privately owned habitat is subject to greater regulatory burdens than other land, there will be an incentive against owning and maintaining land with habitat characteristics.
The threat of regulation can also affect the willingness of landowners to participate in voluntary conservation agreements.85 As Michael Bean has observed, there is “a simple unwillingness to do the mundane management activities that could create or enhance habitat for rare species” due to fears of potential ESA regulation.86 This is a problem because, “in numerous cases, the absence of harmful behavior may not be enough” to conserve and recover endangered species.87 A large percentage, if not an absolute majority, of listed species subsist on land where active management is necessary for their conservation.88 This means effective conservation requires either the imposition of greater regulatory requirements on private landowners or innovative ways to encourage voluntary conservation efforts on private land.
Ending Anti-Conservation Incentives
Species listings trigger the regulation of government activities and private land. As a consequence, the ESA inevitably penalizes private owners of species habitat and thus discourages the creation and maintenance of habitat conditions. Eliminating these negative incentives requires eliminating the economic burdens imposed by species listings.89 Easing permit conditions or providing modest assurances for good behavior may be all that the current statute allows, but any lasting solution to the private land problem in species conservation requires much more.
Protecting private landowners from potential negative consequences of owning endangered species habitat—either by ending the regulation of habitat modification or ensuring that landowners are compensated when their ability to make reasonable use of their land is limited for the benefit of an endangered species—would remove the largest obstacle to greater landowner participation in conservation efforts. Many landowners are very willing to cooperate with conservation goals so long as they are not forced to bear the lion’s share of the cost. Many landowners are often naturally willing to learn about, and even enhance, the ecological value of their land. Again, however, this must be something for which they will not be punished economically if landowners are to be drawn into conservation efforts.
There are many different tools available for the promotion of conservation objectives. Although rarely relied upon by regulatory agencies, “voluntary mechanisms (such as fee simple purchase, easements, conservation banking, and subsidies) are an effective and flexible method for targeting low-cost land with high-quality habitat.”90 Other forms of financial incentives could also improve species conservation on private land by offsetting the costs of regulation.
The ESA may be the most powerful environmental law in the nation.
Government agencies have begun to create incentives for species and habitat conservation. In addition to various federal incentive programs, there are an estimated 400 state incentive programs covering approximately 70 million acres of private land.91 These programs range from straightforward financial incentives and easement purchases to landowner education programs and the provision of technical assistance.92 Such programs have significant promise. The experience with non-regulatory wetland conservation programs suggests that it is often possible to save more land at lower economic (and political) cost through voluntary, cooperative efforts than through coercive regulation.93 Yet despite the proliferation of incentive programs, such approaches remain grossly underutilized and their effectiveness compromised by the underlying incentive structure created by the Act.
A compensation requirement is one way to nearly entirelyeliminate the ESA’s anti-environmental incentives on private land. It could also improve the incentives faced by conservation agencies.94 Yet compensation is not a cure-all for the failings of the ESA’s regulatory provisions. A compensation requirement, if not paired with broader programmatic reforms, may reduce the perverse incentives faced by landowners, but it would be insufficient to encourage greater consideration of species conservation on private land or enhance the effectiveness of government agencies. Nonetheless, requiring compensation would provide a firmer foundation for successful species conservation on private land.
The punitive nature of the ESA’s restrictions on private land not only undermines conservation, it appears to be undermining the science upon which successful species conservation efforts depend as well. This occurs in two ways. First, landowners increasingly resist allowing biologists and others onto their land to conduct research, survey species populations, and the like. Second, because the listing of a species as endangered automatically triggers burdensome regulatory consequences, landowners and others exert themselves to influence the outcome when a listing decision is to be made. These efforts are guided by self-interest rather than by science.
The threat of land-use regulation discourages private landowners from disclosing information and cooperating with scientific research on their land, further compromising species conservation efforts.95 Some landowners fear that the discovery of endangered or threatened species populations will lead to the imposition of regulatory controls.96 Perhaps as a consequence, most research on endangered species occurs on government land, despite the importance of private land for species preservation.97 This can have broad consequences due to the importance of private land for species conservation.
Consider that, in some cases, “a private landowner might be the only individual who knows a listed species is on his or her land.”98 This information asymmetry makes government efforts to conserve species on private land particularly difficult.99 Insofar as the ESA discourages landowner cooperation with scientific research, current estimates may actually underestimate the presence of endangered species on private lands.100 The aforementioned Conservation Biology study of the effect of listing the Preble’s Meadow jumping mouse on landowner behavior found that most landowners would refuse to give biologists permission to conduct research on their land to assess mouse populations, out of fear that land-use restrictions would follow the discovery of a mouse on their land.101 Yet information about the location and status of species populations is essential to the development of effective species recovery plans.102 The lack of more complete data on endangered species and their habitat greatly complicates species conservation efforts.103
Most endangered and threatened species’ habitat is privately owned.
With so much at stake when a species is listed, the scientific integrity of the listing process is put under enormous pressure. The ESA requires that decisions to list endangered and threatened species should be determined by the “best available” scientific evidence. Yet there is ample empirical evidence that political and other non-scientific factors influence listing decisions.104 Early listing decisions in particular were driven by politics and preferences.105 Species that were more “charismatic”—that is, more “warm and fuzzy” or politically popular—were more likely to be listed and to receive funding.106 Other recent studies have found that the political and environmental attitudes of legislators on relevant congressional committees appear to influence listing decisions as well.107 These findings should not surprise. Listing decisions can force the federal government to adopt various regulatory measures with significant economic consequences. With so much at stake, it would be surprising if political and other factors did not influence listing decisions.
Given the structure of the ESA, various interest groups seek to manipulate the listing process so as to trigger or preempt the imposition of land-use restrictions.108 Property owners who own potential habitat for a given species are likely to oppose listing of the species so as to prevent regulation of their land.109 Opponents of development are likely to take the opposite view. Interest group activity also appears to influence how quickly species move through the ESA listing process.110 Interest group opposition to species listing proposals increases as listings threaten development.111 At the extreme, this has produced incentives to manipulate the scientific evidence supporting species listing.112
Delay in the listing of a species can benefit those landowners and economic interests that would have borne the costs of the ESA’s regulatory limitations. At the same time, it can be harmful to conservation.113 Delay in listing a species increases the opportunity for landowners to respond to the perverse incentives created by the Act.114 It also deprives biologists, environmental groups, conservation-minded landowners, and others of the information that a given species is in need of assistance if it is to survive.
Not only may delay allow for the preemptive destruction of habitat, but it also may enable those in the regulated community to marshal scientific evidence that may suggest the listing is unwarranted.115 As a listing is delayed, there is a possibility that the scientific data upon which the potential listing was based could become outdated.116 Empirical research confirms that the longer it takes for a species listing to be proposed, its chances for eventual listing appear to decline.117 If listing is the first step toward a species’s recovery—a debatable proposition for reasons discussed above—political opposition to listing is environmentally worrisome.118
Groups opposing development or resource extractive industries also have an incentive to manipulate the listing process and identify potentially endangered species that can serve as a proxy for their other goals. Environmentalist groups have acknowledged that some species listings are sought out of a desire to control land use. For example, Andy Stahl of the Sierra Club Legal Defense Fund acknowledged that “the ultimate goal” of litigation to list the northern spotted owl was “to delay the harvest of old growth forests so as to give Congress a chance to provide specific statutory protection for those forests.” According to Stahl, the owl was a “surrogate” that could ensure “protection for the forests” under the Endangered Species Act.119 The spotted owl litigation was not without its environmental costs, however. In order to respond to environmentalist lawsuits, the FWS was forced to divert resources from more pressing needs, compromising overall recovery efforts.120 This does not appear to be an isolated instance, as the pattern of environmentalist litigation challenging FWS listing decisions does not appear to align with species conservation priorities. During the 1990s, outside groups sued to list threatened species three times as often as for endangered species.121
The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.
Insofar as such litigation sets listing priorities, it threatens to divert resources away from those species most in need. The FWS reports that it has spent “essentially all” of its listing appropriations on litigation-related and administrative costs.122 As Professor Katrina Wyman of New York University explains, “the FWS has lost control over the listing process as decisions about whether to list species are largely made in response to citizen petitions for listing and litigation.”123 Both environmentalist groups and development interests wage legal wars over the listing and delisting of individual species as a proxy for fights over policy and regulatory priorities.
The above suggests that the ESA’s current regulatory structure both discourages conservation and compromises conservation science. For these reasons, Wyman recommends “decoupling” the listing decision from mandatory conservation measures.124 This would enable federal agencies “to develop protections tailored to the needs of each species and its circumstances.”125 At present, however, the ESA’s “protections” are triggered once a species is listed, regardless of their value for that particular species.126 Decoupling would also “reduce the contentiousness of listing decisions by reducing the momentousness of listing.”127 While it would still make sense for listing to trigger a legal obligation for the FWS to develop a conservation strategy and recovery plan, it would not force the imposition of specific regulatory controls. This would mean that outside organizations would no longer be able to use endangered species as a proxy for other battles. As Wyman explains, “One of the advantages of decoupling the listing of a species from decisions about how it should be protected is that there should be greater room for developing creative measures tailored to species’ needs and circumstances.”128
If the ESA, as currently constituted, cannot do the job of conserving species, what would do the trick? Three foundational reforms, suggested above, are necessary, combined with the funding to carry them out. First, the ESA must no longer penalize landowners for owning endangered species habitat. If anything, owning habitat should be rewarded. This requires greater use of non-regulatory measures and compensating landowners for the costs of habitat regulation.
Second, the listing process should be insulated from political and economic pressure. The surest way to accomplish this is to “decouple” listing from mandatory regulatory measures. Such a reform would necessarily increase agency discretion in selecting among conservation policy options, but this is a feature not a bug. Not every species will benefit from the same set of conservation tools, and enabling conservation agencies to pick from a menu of tools—and even develop new ones—is preferable to an automatic regulatory hammer triggered by a precautionary scientific finding. Conservation policy measures should be chosen by politically accountable regulators and not be a function of triage or outcome of litigation in federal courts.
Third, Congress should recognize that, insofar as species habitat is a public good of value to the nation, it should be provided like any other public good through government subsidy, direct or indirect. This could well mean that federal resources devoted to species conservation increase; if so, that is simply the cost of this nation’s conservation commitment. In 1973, the country declared it would take the measures to conserve the nation’s biodiversity. Substantial ESA reform and adequate funding are the only way that promise can be fulfilled.
Jonathan Adler is a professor and director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.
FURTHER READING: Adler also writes “The Problems with Precaution: A Principle without Principle.” David Schoenbrod contributes “REINS Would Improve Environmental Protections,” and, with Melissa Witte, “Rescuing the Clean Air Act from Obsolescence.”
Image by Rob Green | Bergman Group