Congress scrutinizes Endangered Species Act

Published July 1, 2001

Members of the U.S. Congress, with the consent of the Bush administration, are taking a renewed look at the Endangered Species Act in light of numerous cases during the Clinton-Gore administration in which the Act’s definitions and guidelines were often stretched to extremes to restrict use of private property and public lands.

As part of the administration’s scrutiny, Bush is seeking to limit the ability of environmental groups to file frivolous or taxpayer-funded litigation to force the Fish and Wildlife Service to make new additions to the list of endangered species.

Of concern to the Bush administration and property rights advocates is the subjective criteria often used to justify new additions to the endangered species list. Property rights advocates have long contended environmentalists use the Endangered Species Act (ESA) to further such unrelated interests as limiting population sprawl, restricting natural resource recovery, and restricting the construction of new roads, airports, and dams.

ESA’s counterincentives to protect species

The National Wilderness Institute (NWI) notes no species have ever been removed from the endangered species list due to actions taken under the ESA. Although NWI has filed many court actions and has fought diligently for the protection of endangered species, it recognizes that many species that are not threatened have been improperly added to the list.

“We recognize that many serious problems exist which must be addressed if we are to ensure a healthy environment, but we also realize that more bureaucracy, red tape, and extremism are not the solution,” states an NWI fact sheet on endangered species.

Even the Environmental Defense Fund (EDF) recognizes the Act’s shortcomings. Michael Bean, chairman of EDF’s wildlife program, admitted at a Fish and Wildlife Service training seminar that the ESA is encouraging private property owners to clear their land of habitat that otherwise might invite endangered species. Bean acknowledged such actions are “fairly rational decisions motivated by a desire to avoid potentially significant economic constraints. In short, they are really nothing more than a predictable response to the familiar perverse incentives” of the ESA.

In an EDF report Rebuilding the Ark: Toward a More Effective Endangered Species Act for Private Land, six authors further concluded the ESA is “punishing good stewardship.” The report explains landowners “are afraid that if they take actions that attract new endangered species to their land or increase the populations of endangered species that are already there, their ‘reward’ for doing so will be more regulatory restrictions on the use of their property.”

The EDF report quantified the Act’s failures. Only 18 percent of species found exclusively on federal land are improving, it concluded. Predictably, only 3 percent of species found on private lands are improving. Noted Dean, “some new approaches . . . desperately need to be tried, because they’re not going to do much worse than the existing approaches.”

Objective listing criteria suggested

Senator Mike Crapo (R-Idaho), chairman of the Senate Environment and Public Works Committee Subcommittee on Fisheries, Wildlife and Water, suggested that in reauthorizing the 1973 statute, Congress should establish objective criteria for the Fish and Wildlife Service to use in deciding which species should be protected by the Act.

“Extinction of species is not an acceptable outcome, but neither are policies that cause economic hardship or burden private landowners unfairly,” Crapo told the subcommittee.

Lew Ginzburg of the State University of New York agreed, noting objective criteria for classifying species risk would promote efficiency and consistency in the listing process.

David Wilcove of EDF, by contrast, urged Congress to triple Fish and Wildlife Service funds for the listing of species. Despite the failures noted by EDF Chairman Bean and Rebuilding the Ark, Wilcove stated that tripling ESA funds is necessary for the Fish and Wildlife Service to consider adding 2,000 new species for protection under the Act. Senator Bob Smith (R-New Hampshire) countered that 1,243 species have already been added to the list.

President Bush’s budget proposal would limit the federal government’s ability to consider petitions for new species by placing an $8.46 million ceiling on the Interior Department’s ability to respond to suits seeking new additions to the list. Bush also would give Interior Department officials more discretion in determining which species and critical habitat areas should receive top priority under the Act.

Senator Smith said he plans to introduce a bill that would encourage cooperation between private citizens and the federal government under the Act. Smith’s proposal would create matching grants for private landowners who protect endangered and threatened species found on their property.