In late September, the U.S. Fish and Wildlife Service finalized a modest proposal to improve the Endangered Species Act petition process, by encouraging greater state involvement in species’ conservation. However, this common sense change has been met by apoplectic responses from environmental special interests.
The unfortunate reality is that any suggestion to improve the Endangered Species Act is immediately met by accusations of “gutting” the statute, usually by the groups who profit from the status quo and the unnecessary litigation that it entails. This toxic political climate on endangered species issues is unfortunate, both for property owners and imperiled species.
Lost in all the rhetoric and name-calling is the fact that, as Brian Seasholes of the Reason Foundation succinctly put it, “life involves trade-offs.” This is particularly true in the environmental arena. Environmental questions—whether special interest groups want to admit it or not—involve trade-offs that must be carefully balanced. The failure to recognize this is why our current environmental policies often have unintended and counterproductive consequences.
The Endangered Species Act’s command-and-control approach, for instance, has immense costs. Its strict “take” prohibition singles out some property owners by depriving them of their rights to use their land, without compensating them. This unfairness conflicts with basic constitutional values. As the Supreme Court has explained, the government should not “forc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Yet that’s precisely what happens under the Endangered Species Act.
The statute also threatens innocent people with jail time for actions that no one would ever think could be criminal. As landowners across the country can attest, the take prohibition is incredibly broad. For instance, it is a crime to get within five football fields of some species, even by accident.
Often this prohibition includes activities intended to benefit species. Until it was declared unconstitutional, its application to the Utah prairie dog blocked Utah from moving the rodents from backyards, airports, and cemeteries to publicly-owned conservation areas where they could be permanently protected.
Until we address these tradeoffs, the Endangered Species Act will continue to have severe unintended consequences. Chief among these consequences, is the strong disincentive the statute creates against maintaining species’ habitat. The statute places immense burdens on property owners whose lands are suitable habitat for disappearing species, in effect punishing those who are responsible for the fact that these species are still here. Shouldn’t we be thanking these property owners instead?
This approach creates a huge disincentive against property owners maintaining habitat on their lands or pursuing conservation efforts to benefit species who reside there. It shouldn’t be too hard to figure out that this could be why less than 2% of listed species have recovered in the 40 years since the Endangered Species Act was enacted.
Of course, there are other ways to protect species, while reducing these adverse consequences. The new petition regulations are an important, albeit small, step in the right direction. Other reforms hold even more promise.
For instance, during the Obama administration, the U.S. Fish and Wildlife Service has shown a willingness to work with states and private property owners to develop innovative strategies to protect species without all of the baggage that comes with an Endangered Species Act listing. Compared with the statute’s abysmal recovery rate, these collaborative efforts have secured millions in funding for conservation and have preserved hundreds of thousands of acres of habitat.
Pacific Legal Foundation, representing the National Federation of Independent Business and the Washington Cattlemen’s Association, has filed administrative petitions aimed at making this practice more common, by reducing the overreliance on rigid, counterproductive take prohibitions. Granting that petition would go a long way towards improving the incentives for private conservation.
Achieving the changes in how we protect endangered species that we desperately need requires a better dialogue. So long as any proposal is immediately met with hollow accusations of “gutting” the statute, we can’t have the frank discussion we need about how to best protect species and balance the many trade-offs that come with it. Long-suffering landowners and endangered species both deserve better.
Jonathan Wood is an environmental attorney with Pacific Legal Foundation.
The views expressed by authors are their own and not the views of The Hill.