Congress Targets 1973 Endangered Species Act for Improvement

Published June 30, 2017

Saying the 1973 Endangered Species Act (ESA) is expensive, has failed to protect species, and has been hijacked by special-interest groups, Republican Sens. Rand Paul (KY) and Dean Heller (NV) and Rep. Blaine Luetkemeyer (R-MO) introduced companion bills to revise it for the first time in more than 25 years.

Both Senate Bill 935 and its companion bill—House Resolution 2134, the Endangered Species Management Self-Determination Act—note the ESA has failed to achieve its stated goal of recovering endangered or threatened species. Since 1973, less than 1 percent of the total number of species listed as endangered or threatened in the United States have been removed from the list. Just 47 out of 1,652 listed species in the United States have been removed from the endangered or threatened lists because of recovery.

The “Findings” portion of the bills states the ESA provides “(A) no comprehensive independent study of the costs or benefits of the ESA; (B) no full accounting of how much the Federal Government and State and local governments spend to implement, enforce, and comply with the ESA; and (C) no meaningful effort to account for the costs the ESA imposes on the private sector.”

The bills also state ESA penalizes landowners who own habitat containing endangered species, by forcing them to bear the cost of conservation that should rightfully be borne by the public, and that the ESA’s listing process has become a tool environmentalists use to undermine, slow, or halt construction of infrastructure projects, thus hampering economic growth and employment.

To remedy these problems, the bills would amend ESA to require the secretary of the Department of the Interior to obtain the consent of state governors before making management decisions affecting species within their states; require congressional approval of species listed as endangered and threatened, automatically removing plants or animals after five years on the list; require regional federal power marketing administrations who operate electric systems and sell the electrical output of federally owned and operated hydroelectric dams in 33 states to include the direct and indirect costs of complying with the ESA on customers’ monthly electricity bills; and prevent groups who successfully sue the Fish and Wildlife Service under the ESA from recouping their attorney’s fees.

Putting ‘Local Needs First’

“We can better protect endangered species by empowering state leaders to implement a strategy more tailored to their specific circumstances,” Paul said in a statement upon introducing the Senate bill. “Instead of continuing Washington’s ‘one-size-fits-all’ approach to regulation, this bill puts local needs first and guards against bureaucratic overreach.”

William Perry Pendley, president of the Mountain States Legal Foundation, says his years of experience litigating in defense of the rights of property owners and local communities against ESA-imposed economic-development restrictions show wholesale ESA reform is long overdue.

“The elected officials who passed the legislation enthusiastically in 1973 could not imagine the abuses taking place today through the ESA,” Pendley said. “The ESA was thought to affect some 100 species. Today, thousands are on the list, and [it’s] growing each year. We have gone from protecting the ‘warm and fuzzies’ to the ‘cold and slimies.'”

Compensation for Takings

The legislation also addresses a giant sore spot among landowners nationwide who say their property rights have been usurped to protect endangered species, by making it possible for landowners to gain compensation from the federal government for restrictions imposed on their property to promote species recovery.

If the bills become law, the secretary of the Department of the Interior would have six months after the date of an agency action restricting the uses of a person’s property to pay the owner or lessee an amount equal to 150 percent of the fair market value of the affected property.

As it currently operates, the ESA violates the Fifth Amendment to the U.S. Constitution’s prohibition against uncompensated takings, Perry says.

“The public was told if the ESA ever resulted in the confiscation of private property to protect species, landowners would be paid,” Pendley said. “The government resists such payment. I know of no situation where landowners have been paid.”

At press time, the bills had yet to receive hearings in their respective House and Senate committees.

Kathy Hoekstra ([email protected]) writes from Saginaw, Michigan.