Fact-Checking The Fact Checker On The Endangered Species Act

Brian Seasholes Policy Analyst, Reason
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Factcheck.org — the website that bills itself as “a nonpartisan, nonprofit ‘consumer advocate’ for voters that aims to reduce the level of deception and confusion in U.S. politics” — claims Senator Ted Cruz “misses [the] mark on endangered species.” Ironically, it’s factcheck.org that misses the mark.

Cruz’s apparently problematic statement consists of: “One of the worst things that can happen to a species is to be listed on the Endangered Species Act. If it gets listed it’s almost certain to become endangered.” In response, factcheck.org claims, “There is little evidence to support the idea that the ESA harms species, and none to suggest that it is among ‘the worst things that can happen to a species.’ And there is in fact evidence that listing helps threatened and endangered species recover.”

The second point is the easiest to dispense with because, by refuting an opinion but portraying doing so as a factual statement, factcheck.org is making a straw man argument.

In support of the first point, that there is “little evidence” the Endangered Species Act harms species, factcheck.org states: “The only evidence we have found suggesting that the ESA could cause harm to conservation efforts is a working paper by three economists published in 2006” that involved the cactus ferruginous pygmy-owl in the Tucson, Arizona region.

In fact, there is substantially more evidence. In 2003, two academics published a scholarly article, which found that landowners in North Carolina cut 15,144 acres of pine trees preemptively in efforts to deny the endangered red-cockaded woodpecker habitat. The article was mentioned in a number of other publications, including the widely-read “freakonomics” column that ran in the New York Times Magazine for a number of years and can still be accessed online.

Also in 2003, University of Michigan researchers published a survey of Colorado landowners in the habitat for the Preble’s meadow jumping mouse about their attitudes toward the mouse. The results are sobering: 26 percent of the land area surveyed was being managed to make it inhospitable to the mouse, and most landowners would not let their land be surveyed for the mouse. “The efforts of landowners who acted to help the Preble’s mouse were canceled by those who sought to harm it,” according to the study. “As more landowners become aware that their land contains Preble’s habitat, it is likely the impact on the species may be negative.”

It is curious that factcheck.org did not apparently discover these two articles since they are very easy to find. Typing a term used by factcheck.org — “Endangered Species Act harms species” — into Google Scholar, the popular Google search engine for scholarly publications, turns up these two articles in the first ten results.

But these two articles are not the only pieces of evidence that the Endangered Species Act harms species. One scholarly article found that landowners within a one-mile radius of a red-cockaded woodpecker nest were 25 percent more likely to harvest their timber than landowners who were not within a one-mile radius. Furthermore, landowners who did harvest timber were 21 percent more likely to clear-cut, rather than selectively cut, due to the desire to deny woodpeckers habitat. Another peer-reviewed article found that private, non-industrial forest owners — who own most of the forest in the southern U.S. — in the Sandhills region of North Carolina and South Carolina would be 5 percent less likely to reforest land once it had been cut if their land was near red-cockaded woodpeckers. While 5 percent might not seem to be much, it is for an imperiled species like the red-cockaded woodpecker that needs every bit of habitat to survive.

There is yet another scholarly article about the Endangered Species Act’s penalty-based approach causing harm to species. Several university researchers examined the effects of the Act on landowners in southern Utah who live in the range of the Utah prairie dog. The survey revealed that 34 percent of landowners had taken actions to discourage prairie dogs from inhabiting their property in efforts “to avoid regulatory problems” that accompany the Endangered Species Act’s substantial penalties and result in private property being turned into defacto federal wildlife refuges.

In addition to all of these scholarly publications, even the Endangered Species Act foremost proponents admit the Act’s penalties harm species by causing landowners to make their land inhospitable to species. The most notable such observation is by Michael Bean, widely regarded as the foremost expert on U.S. wildlife law, currently a senior employee of the Interior Department, and from 1977–2009 head of the wildlife program at the Environmental Defense Fund. Indeed, Bean literally wrote the book on the topic, with the 1977 publication of The Evolution of National Wildlife Law. The book is currently in its third edition, for which Bean is a co-author. Bean had the following observation about the Endangered Species Act:

“There is, however, increasing evidence that at least some private landowners are actively managing their land so as to avoid potential endangered species problems…Now it’s important to recognize that all of these actions that landowners are either taking or threatening to take are not the result of malice toward the red-cockaded woodpecker, not the result of malice toward the environment. Rather, they’re fairly rational decisions motivated by a desire to avoid potentially significant economic constraints. In short, they’re really nothing more than a predictable response to the familiar perverse incentives that sometimes accompany regulatory programs.”

As to the third point made by factcheck.org — that the Endangered Species Act helps species — the examples cited have substantial inaccuracies or are simply not true. For example, the alligator never should have been listed under the Act because its population prior to the Act’s passage — almost 735,000, increasing and the major threats removed — was so large, healthy and secure that it did not merit the Act’s protection. The paramount reason for the bald eagle’s recovery was the ban of the pesticide DDT in 1972, not passage of the Endangered Species Act in 1973. Also, approximately 70 percent of the bald eagle population in the lower 48 states was not afforded the supposed benefit of the Endangered Species Act’s protection from 1973-1978 — a time period in which some claim the bird was on the verge of extinction. In reality, the bald eagle was never in danger of extinction because the vast majority of its population, approximately 100,000 birds, lived in Alaska and British Columbia.

The report cited by factcheck.org, which purports to document many species helped by the Act, is fundamentally flawed. The report examines the progress 110 species have made toward meeting the goals in their recovery plans. Yet according to Reed Hopper of the Pacific Legal Foundation, “the CBD ‘report’ cherry picked the data, relying on less than 10 percent of the active recovery plans in the U.S.” The claim by the Center for Biological Diversity that the report is objective “is laughably ironic in light of the fact the authors ignored more than 90 percent of the data,” according to Hopper. “And of course the 110 species reported were not selected at random, but purposefully to bolster the ‘report’s’ inflated claims of ESA success.” Hopper also notes that “Another indication of bias in the ‘report’ is the fact the authors assume that the increase in population numbers for any species is the result of the ESA alone, and not the result of other causes like changes in land use, private conservation efforts, other laws, and even errors in the original listings.”

The Endangered Species Act is a controversial and complex issue that deserves careful consideration, especially that the Act’s penalty-based approach might well be causing more harm than good to species. But if you want accurate information about the Endangered Species Act you may want to do some fact checking before you believe something from factcheck.org.