This article appeared in the Wall Street Journal, 12/31/2003


The Endangered Species Act after 30 Years --


by Jonathan H. Adler

This week, the Endangered Species Act turned 30. Signed into law by President Nixon on Dec. 28, 1973, the ESA quickly became one of the most powerful -- and controversial -- environmental laws. Feared by private landowners yet lauded by environmental activists, it is the source of substantial government power on private land, and can stop federal projects in their tracks. No wonder some call it the "pit bull" of federal environmental laws because it's short, compact and has "one hell of a set of teeth." Yet for all the ESA's force, it is surprisingly ineffective. Indeed, it may be the greatest failure of all federal environmental laws.

The purpose of the ESA is to save species from the brink of extinction. The Act's primary provisions seek to identify endangered and threatened species and adopt measures to "recover" them from endangered status. For a species to be on the list is like being in the emergency room; it may be a necessary condition, but it is not one that should continue. The purpose of the law is to help endangered species populations to the point at which they no longer need federal protection.

The ultimate measure of the ESA's success is the extent to which it is effective at recovering species from endangered status. By this measure, the law is an abject failure. In the past 30 years, fewer than 30 of the over 1,000 domestic species have been taken off the endangered and threatened species lists. Of these, more have been delisted by reason of extinction than because of recovery due to regulatory protection. Indeed, many of the alleged "successes" of the ESA are nothing of the kind, involving species that were either never in danger of extinction -- so-called "data errors" -- or were helped by factors unrelated to the ESA. Several bird species, including the brown pelican and bald eagle, may have been helped by the ban on DDT in 1972, a full year before the ESA was enacted, let alone came into force.

ESA defenders contend that while the law may not recover many species, it prevents some from disappearing altogether. Yet the evidence suggests otherwise. To be sure, the ESA has stopped some federal projects that may have destroyed vital habitat, and the law has encouraged greater conservation efforts on federal lands; but there is increasing reason to believe that the law does little, if anything, to save most endangered species. Indeed, for the vast majority of species that dwell in, or otherwise rely upon, habitat on private land, the law appears to do more harm than good.

The primary problem is that the ESA effectively penalizes owners of land upon which endangered species depend. The presence of a listed species can freeze the use of private land, barring everything from timber cutting and ditch digging to plowing a field or building a home. In Riverside County, Calif., the ESA even prevented private landowners from clearing firebreaks on their own land lest they disturb the habitat of the Stephens' kangaroo rat. In the ensuing fires, several homes burned, as did much of the rat habitat the law was supposed to protect.

In the simplest terms, the ESA turns ownership of endangered species habitat from an asset into a liability. As Sam Hamilton, former Fish and Wildlife Service (FWS) administrator for Texas, noted: "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." Faced with the risk of stringent land-use restrictions and declining property values, landowners respond accordingly: they avoid the creation -- and sometimes actively destroy -- endangered species habitat on their own land. Throughout North Carolina, timber owners are dramatically shortening their cutting rotations and cutting trees at a much younger age -- at significant economic cost -- so as to avoid regulatory proscriptions that could force them to lose their investments altogether, according to a recent study in the Journal of Law & Economics by Dean Leuck and Jeffrey Michael. Similarly, in the Pacific Northwest, land-use restrictions imposed to protect the northern spotted owl made private landowners fear the lost use of their land. According to the FWS, "this concern or fear has accelerated harvest rotations in an effort to avoid the regrowth of habitat that is usable by owls."

The ESA's regulatory strictures are turning private landowners away from conservation. A study in December's Conservation Biology reports that just as many landowners responded to the listing of Preble's meadow jumping mouse by destroying potential habitat as undertook new conservation efforts. And a majority of landowners would not allow biologists on their land to assess mouse populations out of fear that land-use restrictions would follow the discovery of a Preble's meadow jumping mouse on their land.

The negative effect of federal endangered species regulation on species conservation efforts has been known for a long time. Yet for years environmental activists claimed the ESA was an important environmental law that only needed to be enforced. Wildlife law specialist Michael Bean of Environmental Defense was among the first to come clean, acknowledging the "increasing evidence" that private landowners "are actively managing their land so as to avoid" land-use restrictions under the ESA, "and they're trying to avoid these problems by avoiding having endangered species on their property." This is not the result of anti-environmental sentiment, Mr. Bean observed. Rather, the actions are "fairly rational decisions" driven by the incentives the ESA creates.

Such concerns led the Clinton administration to adopt administrative reforms to soften the Act's impact, thereby mollifying private landowners and deflating ESA reform efforts. Through policies known as "safe harbor" and "no surprises," the FWS sought to protect landowners who took measures to help endangered species on their own land. In effect, the new policies declared key portions of the Act inoperative for landowners who made good environmental decisions. Yet insofar as such reforms have been effective, they are likely illegal under the ESA. A federal judge invalidated key aspects of "no surprises" earlier this month on procedural grounds, leaving the FWS to try again.

The problem is not ESA implementation, but the law itself. So long as federal law effectively punishes property owners for owning and conserving species habitat, conservation efforts will flounder. It may be necessary and appropriate to tightly regulate government projects and federal lands for the benefit of imperiled species. Yet when strict rules are imposed on private landowners, species conservation regulations undermine the very goals they aim to advance. A more promising approach would seek to work with landowners rather than against them. Federal efforts to encourage wetland conservation and restoration have been a tremendous success, as have private efforts by groups like Ducks Unlimited to encourage conservation of waterfowl habitat on private land. Alas, the ESA often prevents similar efforts on behalf of those species most in need. The Bush administration's cooperative conservation program represents a modest step in the right direction, but much more is needed.

Despite its flaws, the ESA remains remarkably resistant to reform. Save a just-enacted exemption for some military activities, there has been no significant revision to the law since 1982. The law is "broke," but there is no political will to fix it. Many Congressional Republicans and Democrats from rural districts would like to reform the ESA, and ease its grip on private land, but they are afraid to touch it. Mere mention of ESA reform is enough to send the green lobby into conniptions.

While the Act many not save species, it is terribly effective at controlling land-use, and that is a power environmentalists are unwilling to cede. Ironically, the very power they seek to save is what makes the ESA not worth saving. It seems the Washington-based environmental lobby cares less about saving endangered species than about saving the Endangered Species Act. Until they have a change of heart, effective species conservation efforts will have to wait.

Mr. Adler is an assistant professor at the Case Western Reserve University School of Law, and the editor of "Ecology, Liberty & Property: A Free Market Environmental Reader" (CEI, 2000).


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