The act puts the well-being of humans in opposition to endangered species and creates perverse incentives that hinder recovery efforts.
This year marks the 50th anniversary of the passage of the Endangered Species Act. In an article for the free-market environmentalist think tank PERC, Jonathan Adler surveys the lackluster results from five decades of supposed protection.
The results aren’t for lack of trying, if “trying” means government action. Adler writes that the Endangered Species Act is “arguably the most powerful and stringent federal environmental law on the books.” He explains:
The act contains powerful provisions designed to limit government and private actions that could imperil listed species. Under section 7, federal agencies are required to consult with the U.S. Fish and Wildlife Service or National Marine Fisheries Service to ensure that no action “authorized, funded, or carried out” by an agency will “jeopardize the continued existence of any endangered species or threatened species” or destroy critical habitat for such species. As interpreted by the U.S. Supreme Court in 1978, this requirement “admits of no exceptions,” and bars federal actions that will imperil the survival of endangered species, “whatever the cost.”
Section 9 of the act prohibits anyone to engage in the unpermitted “taking” of any endangered species. As defined in the act, “taking” not only includes killing, wounding, or capturing an endangered species, but also otherwise harming the species, including by destroying or adversely modifying its habitat. Violators are subject to civil and criminal penalties. Section 10 provides for the granting of “incidental take permits” to authorize activities that would be otherwise prohibited under section 9 pursuant to a government-approved conservation plan.
“The act explicitly prioritizes the protection and conservation of non-human species and constrains the ability of government agencies to consider trade-offs,” he writes. Yet species protected under the act rarely leave protection.
The act currently covers 1,437 animal species and 944 plant species. Adler writes, “Since enactment, just over 100 species—fewer than 5 percent of those listed—have been delisted, but the Endangered Species Act’s record at recovering species may be even worse than this figure suggests.”
That’s because a species can be removed from the list for reasons other than recovery. If a species nonetheless goes extinct, it is removed from the list. Species are also removed if new data show that they were never at risk in the first place. “According to the Fish and Wildlife Service, of the delistings to date, 11 went extinct, and nearly two dozen were originally listed due to data errors,” Adler writes.
The federal government only takes credit for 71 species having actually recovered, which is less than 3 percent of the total. But even that might be stretching it, Adler writes, because it doesn’t take into account factors other than the Endangered Species Act that could have caused recovery. “The American bald eagle, Arctic peregrine falcon, and American peregrine falcon recovered due to limits on hunting and the Environmental Protection Agency’s ban on domestic use of the pesticide DDT,” he notes. There are also multiple listings of the same species because different population segments are counted separately.
One of the primary reasons for the act’s poor performance is that it gets the economic incentives backwards. Adler explains the problem succinctly:
Listing a species as endangered imposes strict regulatory measures that effectively penalize landowners who have been successful at cultivating or conserving habitat for the species. Instead of rewarding landowners who have managed lands to preserve habitat for imperiled species, the Endangered Species Act punishes them, reducing land values and constricting permitted land uses.
The logical thing to do if you find an endangered species on your land is to tell nobody about it, because if the government finds out, you lose a bunch of your property rights. Additionally, if you know there’s a possibility of an endangered species in your area finding a home on your land, the incentive is to destroy any suitable habitat for that species, lest it find its way onto your property and subject you to all the government interventions listed above.
This isn’t just a theoretical concern, as Adler notes:
Reports in the 1990s indicated that listing the golden-cheeked warbler resulted in significant habitat loss in Texas. Since then, multiple empirical studies have found that listing species as endangered encourages landowners to preemptively destroy habitat to avoid costly regulatory constraints and discourages participation in conservation efforts.
For the purpose of species recovery, it would be far better if the act provided payment to private landowners who discover an endangered species on their property. If property owners knew there would be a little extra money associated with finding an endangered species, they’d make their land more hospitable to the species and help in its recovery. As it stands, the act puts the well-being of humans in opposition to endangered species and creates perverse incentives that hinder recovery efforts. After 50 years of little success, it’s time to try a different approach.