The 1973 Endangered Species Act (ESA) has been a costly fiasco. It has failed to protect or help revive species at risk of extinction. However, the ESA has allowed the government to go wild, stealing Americans’ property and blocking economic development.
To remedy this ongoing misuse of the ESA, the U.S. Fish and Wildlife Service (FWS) announced a series of joint policy reforms with the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries).
These proposed reforms would alter how the federal government fosters species recovery under the ESA by reducing conflict between efforts to conserve species and people’s rights.
FWS proposed several rule changes in July as part of a larger effort by the Trump administration to reduce the negative impact of endangered species policies on economic activity and personal property rights.
One reform would revise regulations on designating critical habitats for species recovery, reinstating a requirement that officials review currently occupied areas before uninhabited or previously inhabited areas. The Obama administration changed the habitat rule to impose equally stringent restrictions on privately owned potential habitats that don’t contain any endangered species as those on occupied habitats.
Another proposed change would reverse a decades-old policy under which threatened species receive the same protections as endangered species. Under the ESA, actions that impacted a threatened species were allowed on a case-by-case basis. Previous administrations, however, applied the same heavy-handed prohibitions intended for endangered species to threatened species. From a regulatory perspective, this eliminated the stark contrast between the two categories.
Also in July, FWS proposed rescinding the Obama-era “compensatory mitigation policy.” This counterproductive policy mandated industries compensate the government for natural resource extractions on federal lands to mitigate potential damage to endangered species’ habitats.
According to FWS, the agency lacks the authority to require “net conservation gains,” the monetary compensation required to offset potential damage caused to animal habitats by industries mining resources on federal lands. The rule states, “Because by definition compensatory mitigation does not directly avoid or minimize the anticipated harm, its application is particularly ripe for abuse.”
FWS’ proposed changes came after Secretary of the Interior Ryan Zinke issued the “American Energy Independence” secretarial order in March 2017. Zinke’s order requires FWS and other bureaus in the Department of the Interior to review mitigation policies and practices to “better balance conservation strategies and policies with job creation for American families.”
Consequently, ranchers, miners, and oil and gas well operators are hopeful the potential FWS regulatory changes will no longer require them to restore habitats their operations never damaged or restrict their use of property that does not contain threatened species.
Although worthwhile, these reforms fail to address the core problem with the ESA — its lousy incentive structure. To promote species protections, Congress must fundamentally reform ESA to provide incentives for landowners to protect species.
Since 1973, more than 2,470 plant and animal species have been classified as endangered or threatened by ESA. Federal, state and local governments, as well as private individuals, have spent billions to help endangered and threatened species recover.
This sheer number of species designated as threatened and endangered, as well as the billions of taxpayer dollars spent to help restore animal populations, has dealt a devastating blow to liberty and property rights.
For example, Americans have been forbidden from building homes or developing land; others have been prevented from pursuing economic activities such as farming, logging or anything else that could potentially impact animal habitats. Additionally, road improvements, hospital construction and other necessary public infrastructure projects have experienced dramatic price spikes, unnecessary delays or even a complete termination.
Yet, after all these efforts, only 78 species — 3.1 percent of all species ever listed — have been removed from the Endangered Species List.
Worse still, the vast majority of these species were not delisted because of species recovery, but because (in typical Washington, D.C., fashion) they were either listed in error in the first place or they were already extinct before they were even considered for listing. Few, if any, species removed from the Endangered Species List have recovered primarily due to ESA protections.
ESA fails to protect species because it creates perverse incentives to destroy them and their habitat. More than 75 percent of the listed species depend on private land for either all or part of their habitat, but if people provide a suitable habitat for an endangered species, their land becomes subject to severe regulation and outright confiscation.
Property owners are therefore faced with three undesirable options: kill the endangered species member (“shoot, shovel and shut up”), destroy the habitat before a species moves in, or lose the value of their land.
The fairest and most effective way to foster species recovery would be to reward people for managing their property in ways that attract endangered species. Paying landowners when their property is restricted to protect species, for instance, would be consistent with the Constitution’s requirement that landowners be paid just compensation when their property is taken for public purposes, and it would keep them from being forced to face a perverse choice between their own welfare and that of the endangered species.