Pombo Calls for Changes to Endangered Species Act

Published March 1, 2004

House Resources Committee Chairman Richard Pombo (R-California) marked the 30th anniversary of the Endangered Species Act (ESA) by pledging to introduce incremental changes designed to facilitate cooperation between citizen-landowners and the federal government.

Citing the fact that in the past 30 years very few species have recovered to the point of removal from endangered status, Pombo noted private citizens need more federal cooperation and incentives to create and maintain habitat hospitable to endangered species.

“The current act and the way it’s been implemented have been a failure in recovery of species and, at the same time, have caused a huge amount of conflict with private landowners,” said Pombo. “I don’t think anybody can look at the act and say it has been a success.”

Realizing a sudden and complete overhaul of the ESA is politically impossible, Pombo pledged to incrementally address some of the law’s most self-defeating provisions.

“In the past, I’ve tried to come up with an overall reauthorization bill, and it’s too difficult because it covers so many different things,” he said. “It’s just a lot easier and a lot more practical to break it down.”

ESA an “Abject Failure”

The importance of ESA reform is confirmed by many endangered species analysts.

“After three decades, and billions of dollars of spending by private parties, as well as local, state, and federal governments to comply with the Act, only 15 species out of the 1,853 species listed as endangered or threatened have been recovered,” noted Daniel Simmons, a research fellow at the Mercatus Center. “Clearly, the Act is due for a makeover.”

“For all the ESA’s force, it is surprisingly ineffective,” observed Case Western Reserve University Assistant Professor of Law Jonathan Adler. “Indeed, it may be the greatest failure of all federal environmental laws. The purpose of the ESA is to save species from the brink of extinction. … The ultimate measure of the ESA’s success is the extent to which it is effective at recovering species from endangered status.

“By this measure,” continued Adler, “the law is an abject failure. In the past 30 years, fewer than 30 of the over 1,000 domestic species have been taken off the endangered and threatened species lists. Of these, more have been delisted by reason of extinction than because of recovery due to regulatory protection.”

Scientific studies support those observations. A study published in the December 2003 issue of Conservation Biology reports, “listing the Preble’s [Jumping Mouse] under the ESA does not appear to have enhanced its survival prospects on private land.” The study found that after the mouse was listed as endangered, citizens were as likely to degrade any mouse habitat as they were to improve it. The reason? If federal officials found the Preble’s mouse on their land, the property would be rendered untouchable and economically worthless. According to the study, most citizens were so fearful of federal interference that they refused to allow any biological surveys of their land that might reveal resident mouse populations.

Another study, conducted by Dean Lueck of Montana State University and Jeffrey A. Michael of Towson University, examined endangered red-cockaded woodpecker populations on more than 1,000 individual forest plots. They concluded the woodpecker’s “habitat has been reduced on private land because of the ESA.” According to the study, landowners purposely cleared trees on their land before the trees could reach sufficient maturity to support the endangered birds. If birds migrated to their lands, landowners realized they would lose virtually all land-use rights to the properties.

Correcting Wrong Incentives

“Why is the ESA so bad at protecting endangered species?” asked Simmons. “The Act provides the wrong incentives to landowners. If an endangered or threatened species takes up residence on someone’s land, the landowner will frequently view it as a liability, since the regulations that protect the species limit the landowner’s land use options. These regulations do not encourage landowners to conserve the endangered species, but rather they punish landowners for creating the very habitat that endangered species need to survive.

“Instead of punishing landowners for creating endangered species-friendly habitat,” Simmons said, “the ESA should reward and encourage landowners for their conservation efforts. Since 80 percent of threatened and endangered species live on privately owned land, our only hope to improve and recover many species will depend on conservation efforts by private citizens.”

“In Riverside County, California,” added Adler, “the ESA even prevented private landowners from clearing firebreaks on their own land lest they disturb the habitat of the Stephens’ kangaroo rat. In the ensuing fires, several homes burned, as did much of the rat habitat the law was supposed to protect. In the simplest terms, the ESA turns ownership of endangered species habitat from an asset into a liability.”

“The incentives are wrong here,” summarized Sam Hamilton, former Fish and Wildlife Service administrator of Texas. “If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears.”

The Pombo legislation would add “sound science” requirements demanding peer-reviewed justification for listing new species. The new approach would also attempt to remove penalties for creating and maintaining endangered species habitat, replacing them with incentives and cooperative relations with federal agencies. His approach is being applauded by ESA analysts.

“The problem is not ESA implementation, but the law itself,” said Adler. “So long as federal law effectively punishes property owners for owning and conserving species habitat, conservation efforts will flounder. …

“When strict rules are imposed on private landowners,” Adler continued, “species conservation regulations undermine the very goals they aim to advance. A more promising approach would seek to work with landowners rather than against them.”

James M. Taylor is managing editor of Environment & Climate News. His email address is [email protected].