For 45 years, the Endangered Species Act has been the law of the land. And for 45 years, it has been a failure.
That may sound harsh, but consider the results. In that time, less than 3 percent of domestic species listed as endangered or threatened (species that are likely to become endangered) have been taken off the list due to their recovery.
But some proposed changes should at least help. The U.S. Fish and Wildlife Service and National Marine Fisheries Service, which implement the ESA, are considering new regulations that will better conserve species by solving some significant problems with the law’s implementation.
For example, the proposed changes would require the Fish and Wildlife Service to treat endangered and threatened species differently from each other, just as Congress intended and just as the National Marine Fisheries Service has been doing successfully for years.
The ESA applies its most significant protections to endangered species, including very stringent prohibitions against activities that would harm species or its habitat. This includes severe restrictions on how property owners can use their land.
But for threatened species, the ESA’s general rule is that these stringent prohibitions don’t apply. Unfortunately, the Fish and Wildlife Service has implemented the law in the exact opposite fashion: the general rule is that these prohibitions do apply to threatened species.
This misguided approach hurts conservation efforts by diverting time and resources away from where they are most needed. It also removes important incentives for private property owners. For example, if the stringent prohibitions didn’t apply to threatened species, private property owners would have the incentive to protect these species from becoming endangered in order to avoid the stringent prohibitions.
The proposed regulations would also address how the government determines “critical habitat,” areas that are essential to the conservation of a species.
The U.S. Supreme Court recently heard a case, Weyerhaeuser Company v. United States Fish and Wildlife Service, which shows just how overboard the government has gone in determining critical habitat.
The Fish and Wildlife Service determined that an area in Louisiana was critical habitat for the dusky gopher frog, even though the frog hasn’t been documented in Louisiana for more than 50 years and doesn’t occupy the area in question.
This area is currently unable to support the frog. The only way the area could support the frog is if the private property owners make major and costly changes to their private property, which they have said they won’t make (nor can they be forced to make).
Nobody benefits from this unreasonable critical habitat designation. This includes the dusky gopher frog, because regardless of the legal outcome of the case, the area still won’t be able to support the frog.
Fortunately, the federal government is proposing changes that should reduce the likelihood of similar situations, including taking into account the obstacles that exist to make an area usable habitat for a species.
One of the biggest proposed regulatory changes would increase transparency and better identify the benefits and costs of the ESA.
The law requires that science alone should determine whether to list a species; the costs of protecting a species has nothing to do with whether it is endangered or threatened. However, the federal government has used this science-only requirement as an excuse to prohibit the identification of the benefits and costs of listing a species.
Based on the proposed changes, the federal government would still make listing decisions without considering costs, but would start to identify and communicate the impacts of these listing decisions.
When legislators and the public know what the actual costs and benefits are for conserving species, they can better understand the ESA and how existing law might be changed to achieve desired policy outcomes.
There’s certainly a lot that needs to be done to develop policies that improve species conservation. However, the federal government is on the right track by recognizing its past mistakes in implementing the ESA and taking steps to correct them.
Daren Bakst is a Senior Research Fellow at The Heritage Foundation (heritage.org).