Report: The Endangered Species Act Doesn’t Work Because It Hammers Landowners With Draconian Regs

Tim Pearce | Energy Reporter

The Endangered Species Act (ESA) may protect nearly every listed species from extinction, but the law’s recovery rate for threatened and endangered populations is dismal, so far.

The Property and Environment Research Center (PERC) released a report Wednesday pointing out a severe shortfall of the ESA: only two percent of species listed under the law have been officially removed from the list as “recovered.” An April 16 study by The Heritage Foundation concluded the real recovery rate is closer to one percent.

Proponents of the ESA, however, credit the law for keeping 99 percent of listed species from dying out, though that stat is based on the flawed assumption every listed species would go extinct without federal protection. Still, the ESA is much better at preventing an ailing species from getting worse rather than encouraging its growth.

“Few species protected by [the ESA] have gone extinct. That’s reason for celebration,” PERC fellow Jonathan Wood, who authored the Wednesday report, wrote. “But … we want endangered species to recover as well. Achieving that goal, without sacrificing the law’s success at preventing extinction, requires reform that aligns the incentives of private landowners with the interests of rare species while maintaining regulatory protections for endangered species.”

Wood, an attorney focused on environmental, constitutional and property-rights issues for the Pacific Legal Foundation, suggests reinstituting the ESA’s distinction between an “endangered” species, one at risk for dying out, and a “threatened” species, one at risk of becoming endangered.

When Congress passed the ESA in 1973, the two classifications represented different regulatory frameworks governing the protection of the listed species. The difference was largely based on whether the “take” of an animal, which included any action that disturbed the animal or its habitat, would be outlawed. While the law only prohibited takings in the case of endangered animals, the U.S. Fish and Wildlife Service (FWS) removed the regulatory distinction between the classifications in 1975.

“Acknowledging that the broad take prohibition imposes significant burdens, Congress deemed it necessary as the last line of defense to protect endangered species from extinction,” Wood wrote.

Even efforts to help rare species are hampered by the take provision. A joint-project by the University of California, Davis, and a conservation group to save salmon nearly failed because of the costly approval process necessary to get permission to transport baby salmon, according to Wood.

Reinstating the distinction would grant more time for states, conservation groups, landowners and companies to react to the listing of species and encourage a proactive approach to helping a threatened species recover before it is classified as endangered and triggers heavy regulations.

Federal law requires agencies to issue a decision on species considered for listing within one year, severely limiting the time states and private interests have to devise and implement a strategy to save the species before regulation takes over.

States and private interests worked together successfully to keep the Greater Sage Grouse, whose habitat covers 165 million acres in 11 states, off the ESA list. Through a coordinated effort from the local to the federal level, the species was considered recovered enough and with a bright enough outlook after five years of coordination that the FWS ruled federal protection of the bird was not needed.

While the fix would not solve the larger issue of endangered species — owning the animals’ habitat is widely considered a burden instead of an asset — reinstating the regulatory distinction between the ESA classifications would encourage state and local interests to pursue their own conservation plans rather than strangling their actions through regulations.

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