This year marks the 45th anniversary of the Endangered Species Act. In at least one key respect, the law has worked as intended — only 1 percent of species protected by the law have gone extinct. But the act has been far less successful at recovering vulnerable species, with less than 2 percent of protected species achieving that goal. Achieving both goals will require reform to boost the recovery rate for species while preserving the law’s effectiveness at protecting species from extinction.
The Department of Interior is considering a reform to do just that by adjusting the extent of regulatory burdens imposed to the degree of threats a species faces, so that restrictions are strengthened as species decline and relaxed as they recover. This reform would dramatically improve the incentives for recovering species, without disturbing the strict regulations for the most vulnerable species that have led to the statute’s success at preventing extinction.
The reform recognizes the crucial difference between the Endangered Species Act’s two categories of protected species: “threatened” and “endangered.” Species in these categories can face dramatically different prospects. The endangered dusky gopher frog, for example, is found only at a few sites in Louisiana. It is much more vulnerable to extinction than the northern long-eared bat, a threatened species numbering in the millions spread across 37 states.
Think of the difference between “threatened” and “endangered” as points along a continuum. Congress intended the threatened species listing as an early warning system against species’ slide toward endangered status. But, because threatened species face lower risks than endangered species, Congress chose not to extend the same regulatory protections to them.
In particular, Congress reserved the controversial and burdensome “take” prohibition for endangered species, viewing it as a necessary last resort for the most at-risk species. That prohibition forbids private activities that harm protected species and it applies to far more activities than you might think. Catching a protected species for conservation purposes or accidentally getting too close to one is considered “take.” So are many common land use activities that may inadvertently affect species’ habitat, including building homes, farming and harvesting timber.
In other words, when the take prohibition applies, it places extremely heavy burdens on property owners whose land provides habitat to species. Congress deemed that trade-off necessary for the more vulnerable endangered species — but not for threatened species.
This critical distinction was the result of careful thinking. California Democratic Sen. John Tunney, urging the statute’s adoption in 1973, explained that the “two levels of classification facilitate regulations that are tailored to the needs of the animal while minimizing the use of the most stringent prohibitions.”
“States,” Tunney continued, would be “encouraged to use their discretion to promote the recovery of threatened species and federal prohibitions against taking must be absolutely enforced only for those species on the brink of extinction.”
Unfortunately, the wisdom of that distinction was cast aside by a 1975 regulation declaring that the take prohibition would automatically be applied to threatened species. This decision eliminated the distinction between the two categories as a potential incentive to promote recovery efforts.
It’s time to restore the law’s original intent. Repealing this regulation, as the Department of Interior is considering, would free states to pursue innovative conservation programs; encourage voluntary collaborations between government, landowners and conservationists; and provide the necessary incentives to boost the rate at which we recover species.
Recent state-led conservation efforts provide powerful evidence that states are ready to seize the opportunity this reform would give them. For example, the Obama administration encouraged forward-thinking state leaders, landowners and conservationists to work together to conserve the greater sage grouse, lesser prairie chicken and gopher tortoise. These efforts illustrate that there are better ways to recover species than inflexible, potentially counterproductive federal regulations.
Restoring the Endangered Species Act’s distinction between endangered and threatened species would also improve landowners’ incentives to help recover species. Most habitat for endangered species is on private land. Thus, species recovery ultimately hinges on the incentives for landowners to protect and improve habitat on their land.
Failing to differentiate between endangered and threatened species results in misaligned incentives. For example, regulating endangered and threatened species the same way means that landowners who successfully recover endangered species receive no reward for their efforts because the same regulatory burdens continue to apply when the species improves to threatened.
Congress’s original design of tightening regulatory restrictions as species decline, and relaxing them as species recover, better aligns landowners’ incentives with the interests of wildlife.
Although the Endangered Species Act has protected numerous species from extinction, it has failed to achieve the same success at recovering species. The Department of Interior should follow through on reform to preserve what the statute does well, while boosting the incentives to recover species.
Jonathan Wood is a Pacific Legal Foundation attorney, an adjunct fellow at the Property and Environment Research Center, and the author of the PERC report discussed in this article.