Out of Control Policy Blog

ESA Reform in the Works?

According to the Washington Post, Endangered Species Act reform is in the works:

    Lawmakers from both parties are pushing to transform the nation's approach to protecting imperiled species, making it tougher to add to the federal list of endangered animals and plants, and providing new incentives for landowners to protect crucial habitats.

    A brief hearing yesterday kicked off the drive to retool one of the nation's best known and most controversial environmental laws, which currently protects about 1,800 species believed to be on the verge of extinction. Enacted in 1973, the Endangered Species Act has come under fire from both the left and the right.

    Republicans and Democrats say they largely agree on what aspects of the act need work. Although they differ on how to fix them, they have engaged in a dialogue over the most problematic features. With a moderate Republican in charge of drafting the Senate bill, some said prospects for rewriting the law may be better than they have been in more than a decade.

    . . . .

    For years, property owners have complained that the government has been too ready to declare species in trouble and place valuable land off-limits to development. Environmentalists, on the other hand, say the U.S. Fish and Wildlife Service has moved too slowly in safeguarding struggling populations.

    . . . .

    Areas of agreement include the idea of providing federal grants or tax incentives to landowners for maintaining key habitat for imperiled plants and animals. And both sides favor changing the process of designating critical habitat so that land-use restrictions would take effect only after federal scientists devise a formal recovery plan. That would ease the constraints on developing private property.

The full article is here. CEI's Myron Ebell offers some perspective on ESA's failures:

    There is one fundamental reason why the ESA does a lot more harm than good. The ESA penalizes people for being good stewards of their land. Landowners whose management practices create and preserve habitat for an endangered plant or animal open their land to being regulated under ESA. And contrary to what many environmental pressure groups claim, ESA regulation does not simply prevent development or changes in land use. Customary land uses and practices, such as farming, livestock grazing, and timber production, have regularly been prohibited, even when such practices help to maintain the species' habitat.

    Naturally, faced with the regulatory taking of their property, people sought compensation under the Fifth Amendment to the Constitution. Unfortunately, although compensation is due whenever government physically seizes even an inch of private property, the Supreme Court has ruled that compensation is not required for a regulatory taking as long as the property retains any possible use and any value. An ESA listing can destroy 90 percent or more of the value of a piece of property and prohibit its traditional use without triggering the Fifth Amendment's just compensation clause.

    The ESA thus encourages landowners to take the steps necessary to ensure that their land does not contain suitable habitat for any endangered or potentially endangered species. Since around 80 percent of listed species depend largely on private land for their habitat, the effects of this perverse incentive clearly continue to be catastrophic for endangered animals and plants. Given the logic underlying the ESA, it is not entirely fanciful to imagine that rural America will eventually be paved over.

Reason's Michael De Alessi has written extensively on ESA's failures and the need for a market-based approach to conservation. Visit Reason's Private Conservation Resource Center for more. And be sure to check out his January 2005 study, Conservation Through Private Initiative, which suggests that:

    Human ingenuity and the entrepreneurial spirit underlie most conservation success stories. Under private ownership and stewardship, problem-solvers become remarkably resourceful at protecting and enhancing the value of what they own, for reasons as broad as profit and aesthetics, and ranging from fisheries and forests to backyard gardens. No one questions the impetus for a cleaner, healthier, species-rich environment. How we get there, however, is another question. The most promising efforts to address the perverse incentives typically created by command and control regulation are the use of market mechanisms and performance measures, both of which rely on getting the incentives more inline with the desired results, and on tapping
    into the same human ingenuity that drives commercial activity. Using performance indicators to measure and acknowledge conservation success, especially in the context of using the land is the next logical step.

Leonard Gilroy is Director of Government Reform


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