The Endangered Species Act is one of the most controversial pieces of U.S. environmental legislation. Proponents claim it is a success because it has saved many species from extinction. Others question its record, noting that there is increasing evidence the Endangered Species Act is causing widespread harm to the species it is supposed to protect. A recent Reason Foundation study, How to Fulfill the Promise of the Endangered Species Act, proposed a new approach, known as the Endangered Species Reserve Program, which would eliminate counterproductive penalties that encourage landowners to make their land inhospitable to endangered species, and replace them with an entirely voluntary system in which landowners are compensated for investing in habitat and species conservation. This article answers the frequently asked questions about endangered species protection, the failures of the Endangered Species Act, and the potential benefits of a new approach.
Q: Why should the Endangered Species Act be reformed when we constantly hear how successful it is?
A: There is strong and increasing evidence the Endangered Species Act is causing widespread harm to the species it is supposed to protect-to the extent the Act may be doing more harm than good. The Act makes otherwise normal and legal forms of land and resource use illegal, such as farming, home building and cutting timber. The Endangered Species Act’s severe penalties-$100,000 and/or 1 year in jail for harming a single species or even unoccupied habitat that is deemed suitable-turn species in to liabilities. As a result, landowners seek to reduce their liabilities in a number of ways.
(1) The most significant is what is known as the “scorched earth” strategy, which consists of destroying and degrading habitat in order to make it unsuitable for endangered species. This is the most damaging because habitat destruction is the leading cause of imperilment for species in the U.S.
(2) Habitat can also be rendered unsuitable for endangered species through benign neglect because the habitat for many species requires active management. As many as 84% of species listed under the Endangered Species Act are what is known as “conservation reliant,” which means they will depend indefinitely on a variety of conservation activities to ensure their continued survival because the threats to these species are impossible to eliminate.
(3) It appears that many landowners who harbor endangered species, or whose land contains likely habitat for endangered species, refuse to allow regulatory authorities on their property for fear of triggering land and resource use restrictions. Yet monitoring is essential to wildlife conservation; it allows people to learn more about species, which provides insights into how to conserve them more effectively. Monitoring is especially important for endangered species because their small populations are more vulnerable to the effects of anthropogenic and natural habitat destruction and degradation. Without monitoring, species, especially vulnerable species, have decreased chances of survival.
(4) Many landowners keep quiet out of fear, hoping regulatory authorities won’t look for rare species on their property and restrict the use of their land. This appears to be a common and widespread response by landowners.
(5) Some landowners engage in the “shoot, shovel, and shut-up” solution-seeking to rid their land of endangered species. While this is sensationalistic and receives a lot of publicity, it is likely relatively uncommon and the least significant of all these problems.
In all these ways, the Endangered Species Act’s penalty-based approach actively discourages conservation and monitoring and encourages the elimination of endangered species and their habitat. Not only are imperiled species harmed by Endangered Species Act-induced habitat destruction but so are many more common species that depend on the same habitat.
Q: What is the importance of private lands to endangered species?
A: Private lands are the linchpin for endangered species and successful endangered species conservation. Almost 80% of endangered species depended on private land for all or some of their habitat, compared to 50% for federal land. In addition, almost two-thirds of endangered species (62%), have 81-100% of their habitat on nonfederal land. And more than one-third of species (37%) have all of their habitat on nonfederal land. Private lands are also very important in states with large amounts of federal land because private lands contain most of the well-watered land, which is usually the most valuable to all wildlife, endangered and common. For example, 40% of the sage grouse’s range is privately owned, but private lands contain almost all of the critically important moist habitat, such as wet meadows and streamsides, that chicks and adults rely on in spring and summer.
Q: What evidence is there that the Endangered Species Act is causing harm to species?
A: There is anecdotal and empirical evidence. Much of the anecdotal evidence is from a number of the Act’s most prominent advocates. There is also a growing body of scholarly, empirical evidence.
According to Michael Bean, then with the Environmental Defense Fund and currently the Interior Department, and widely recognized as one of the foremost authorities on the Endangered Species Act:
“There is, however, increasing evidence that at least some private landowners are actively managing their land so as to avoid potential endangered species problems…Now it’s important to recognize that all of these actions that landowners are either taking or threatening to take are not the result of malice toward the red-cockaded woodpecker, not the result of malice toward the environment. Rather, they’re fairly rational decisions motivated by a desire to avoid potentially significant economic constraints. In short, they’re really nothing more than a predictable response to the familiar perverse incentives that sometimes accompany regulatory programs.”
Similarly, several academics who continue strongly to support the Endangered Species Act, including Reed Noss, who is well-known in biodiversity conservation circles for his unstinting support of the Act, made the following observation:
“[T]he regulatory approach to conserving endangered species and diminishing habitats has created anti-conservation sentiment among many private landowners who view endangered species as economic liabilities…Landowners fear a decline in value of their properties because the ESA restricts future land-use options where threatened or endangered species are found but makes no provisions for compensation. Consequently, endangered species are perceived by many landowners as a financial liability, resulting in anti-conservation incentives because maintaining high-quality habitats that harbor or attract endangered species would represent a gamble against loss of future economic opportunities.”
In the 2000s, as the anecdotal evidence that the Endangered Species Act was causing significant harm to species mounted and became more widely known, the issue began to attract the attention of academic researchers. The red-cockaded woodpecker referenced by Michael Bean, which lives in the pine forests of the southern U.S., has been the focus of a number of research projects that found three responses from forest landowners to avoid the Endangered Species Act’s punitive land-use restrictions: harvesting timber prematurely because the woodpecker prefers mature pine trees for nest cavities; an increased likelihood to harvest timber in proximity to occupied woodpecker habitat, as well as clear-cut, rather than selectively cut timber; and, after land has been logged, a decreased likelihood landowners will reforest the land if it is in proximity to occupied red-cockaded woodpecker habitat.
Researchers surveyed Colorado landowners in the habitat for the Preble’s meadow jumping mouse about their attitudes toward the mouse. The results are sobering: 26% of the land area surveyed was being managed to make it inhospitable to the mouse, and most landowners would not let their land be surveyed for the mouse.
A study by several economists found that in Tucson, Arizona the land proposed to be designated as critical habitat for the cactus ferruginous pygmy-owl was developed one year earlier than habitat out of the critical habitat zone. There is “the distinct possibility the Endangered Species Act is actually endangering, rather than protecting, species” surmised the study’s authors.
The Endangered Species Act’s penalties so effectively undermine the incentives for private landowners to conserve species that the ratio of declining to improving species on private land is an abysmal 9 to 1, whereas on federal lands the ratio is a much better 1.5 to 1.
Q: The Endangered Species Act is very powerful so why not use this power to force landowners to obey the law? After all, “sticks” are often needed as well as “carrots” to change behavior.
A: While there is a wide range of views on forcing people to submit to the Endangered Species Act, landowners have an enormous advantage if they want to break or evade the law, or refuse to participate in conserving endangered species.
(1) Most endangered species and their habitat exist on private land, which private landowners can refuse to allow regulatory authorities to access.
(2) Most endangered species live in rural regions that are relatively sparsely populated and therefore have fewer “eyes” to detect if land contains endangered species or suitable habitat, and if landowners are engaging in practices detrimental to endangered species.
(3) It is simply impossible for enforcers and supporters of the Endangered Species Act to patrol this country’s hundreds of millions of acres of endangered species habitat. Short of turning the U.S. into a police state, private landowners will always be able lawfully to make habitat unsuitable for species that are already listed or proposed for listing, and most will be able to break the law without detection by destroying species and habitat.
Q: Efforts to reform the Endangered Species Act have been tried for the past 22 years. Why is this issue urgent now?
A: Following a 2011 lawsuit settlement between the U.S. Fish and Wildlife Service and a couple of environmental pressure groups, the Service is obligated to consider for listing over 750 species by 2018. Of these species, 251 must be final listing decisions, with the remaining 506 likely to have listing decisions made after 2018. All told, these lawsuit settlement species will increase the number of U.S. endangered species by about 50%, which will create increasing conflicts between the federal government, activist groups that used the Endangered Species Act to push for more land and resource use restrictions, landowners, states, municipalities and businesses. Furthermore, many of these lawsuit settlement species are in regions of the country that have been relatively untouched by the Endangered Species Act (e.g., Midwest, Great Plains, Inter-mountain West, and large portions of the South), and are aquatic species, which means water, both quantity and quality, is likely to be impacted.
Q: How can the stalemate over the Endangered Species Act be broken?
A: The Endangered Species Act’s funding authorization expired in October 1992. Since then the Act has been kept going by annual congressional appropriations. But proponents and opponents of the Act have fought themselves to a stalemate over reauthorization. In order to break the stalemate, each side must do something it has been reluctant or unwilling to do: take seriously the issues the other side cares about and then address these issues with concrete legislative action. Opponents must acknowledge and respect that endangered species conservation and species extinction are legitimate issues about which proponents are genuinely concerned. By the same token, proponents must recognize and respect opponents’ concerns about the costs the Act imposes on landowners, various levels of government and economic activity.
Q: What is the Endangered Species Reserve Program?
A: The Endangered Species Reserve Program is a new approach to conserving endangered species based on the successful and popular Conservation Reserve Program run by the U.S. Department of Agriculture. Like the Conservation Reserve Program, the Endangered Species Reserve Program is based on working cooperatively with landowners who harbor endangered species, including providing compensation, instead of the Endangered Species Act’s approach, which punishes landowners who have endangered species on their property.
Q: How would the Endangered Species Reserve Program work in practice?
A: The Endangered Species Reserve Program (ESRP) would essentially function as a contract program like the Conservation Reserve Program. The ESRP would compensate landowners for periods of around 10-15 years in exchange for agreeing to conserve endangered species habitat. Landowners in the Conservation Reserve Program receive annual payments in exchange for signing 10-15 year contracts to remove from production land deemed “environmentally sensitive.” There’s a reason why so many landowners willingly contact their local office of the Department of Agriculture but not the Fish and Wildlife Service. Landowners are happy to enroll their property in the Conservation Reserve Program because they are not punished and receive cash. By contrast, endangered species bring heartache and reduced land values. Currently there are approximately 26 million acres, in more than 375,000 farms, enrolled in the Conservation Reserve Program at the cost of $64 per acre. In the USDA’s 2014 budget, $6.2 billion is allocated to conservation, out of a total budget of $146 billion, of which approximately $2.2 billion (36% of the amount spent on conservation) is for the CRP.
The Endangered Species Reserve Program would be much more flexible than the current approach. There is a wide range of innovative proposals for conserving endangered species, such as rewarding landowners for producing endangered species, or for providing cash bonuses to groups of landowners who manage contiguous land parcels for the benefit of endangered species. The ESRP would function best by being flexible enough to allow for a wide range of approaches to compensate landowners. Flexibility is also needed because ecological conditions can change over time and because landowners strongly dislike initiatives that lock them in to long-term or permanent arrangements, such as perpetual conservation easements.
The aspect of the Endangered Species Reserve Program that may be hardest for some to grasp, especially those steeped in the intricacies of the Endangered Species Act, is its simplicity. Instead of micro-managing issues as currently occurs under the Endangered Species Act, such as the definition of species’ distinct population segments or what constitutes “harm” to species, the Endangered Species Reserve Program would not specify these issues. Rather, it would employ a system to score habitat for endangered species, much like the Environmental Benefits Index used under the Conservation Reserve Program. Such a scoring system would incorporate both the biological value and the financial cost of conserving endangered species habitat to determine the most efficient and cost-effective expenditures.
Q: What evidence is there that the Endangered Species Reserve Program would work?
A: There are four main lines of evidence:
(1) Statements from experts and proponents of the Endangered Species Act. Mollie Beattie, while director of the Fish and Wildlife Service, in an extraordinary moment of candor, compared the Endangered Species Act to the U.S. Department of Agriculture’s Conservation Reserve Program (CRP) in Beef Today, a trade publication of the cattle industry:
“I think this [the CRP] really, really opened people’s eyes to what could be achieved in a basically non-regulatory, voluntary program. If there were an incentive to make the best habitat [for endangered species], we’d be miles ahead.”
Michael Bean, and his then-colleagues at the Environmental Defense Fund-Robert Bonnie, Tim Male and Tim Searchinger-understood very well this two-step process of first removing disincentives and then adding incentives. According to them:
“Removing perverse incentives is a necessary first step to effective conservation. Ensuring that private stewardship is rewarded and that it is made easy by both federal and state laws is also an important part of encouraging landowners to manage their lands in ways that conserve natural ecosystems.”
(2) America has a long and proud tradition of private conservation and stewardship that is still going strong today. Americans are very willing to conserve wildlife so long as they are not punished for doing so. The plains bison was saved from extinction by a small number of ranchers rounding up the few remaining bison and fencing them in. An authoritative study published in the journal Biological Conservation in 2007 notes that “The independent actions of private citizens, taken long before national governments reacted, were responsible for saving the plains bison.” This tradition of private conservation is still going strong today and can be seen in countless examples, such as landowners putting up nest boxes for bluebirds and wood ducks, which was initially motivated in the early-to-mid-1900s by concern for their declining populations. Sadly, there has not been a similar widespread effort to put up nest boxes for spotted owls, despite that they readily use them, because the Endangered Species Act’s penalties discourage landowners from doing so.
(3) There are a number of innovative approaches to endangered species conservation, one of which is called the Recovery Credit System. The the state of Texas developed the program in the mid-2000s and modeled it on the U.S. Department of Agriculture’s Conservation Reserve Program. Under this system, landowners mitigate potentially detrimental effects of their own land-use practices on endangered species habitat by purchasing Recovery Credits from the private owners of nearby land, who agree to improve and conserve similar habitat. In practice, Recovery Credits are purchased through a low-bid (or “reverse”) auction, which drives down costs. The Recovery Credit System is supported by a very robust and scientifically valid management process that ensures endangered species benefit, landowners’ concerns are met, and a wide range of stakeholders are involved. A key aspect of the pilot program was landowner confidentiality because of the fear and very real possibility that the U.S. Fish and Wildlife Service could use information about landowners’ properties to invoke the Endangered Species Act’s feared land-use restrictions.
The success of the Recovery Credit System on Fort Hood and surrounding private land led to its application and proposed application elsewhere, most notably for the dunes sagebrush lizard that lives in the Permian Basin of western Texas and eastern New Mexico, an oil-rich region that is responsible for 15% of U.S. oil production. In 2012, when the Fish and Wildlife Service decided not to list the lizard, the conservation plan developed by stakeholders, which was based in large part on the Recovery Credit System, was cited by Interior Department as the key reason not to list.
The Recovery Credit System proved so successful that it has been adopted for a number of other species. It has also been implemented for the Utah Prairie dog and is part of proposed conservation initiatives for a number of other species, including the entire range of the golden-cheeked warbler and black-capped vireo in Texas, the lesser prairie chicken, which was listed in March 2014, and the greater sage grouse, which may be proposed to be listed in the fall of 2015.
(4) Over the past decade a growing number of surveys of landowners have shown what factors affect their willingness to conserve endangered species. These surveys show that:
- Landowners have significant concerns about risks to their property values and livelihoods associated with protecting endangered species.
- Financial compensation is very important. For the most part, landowners think they should be compensated for conserving species that are endangered or close to being endangered. In many cases compensation increases landowners’ willingness to conserve endangered species.
- Assurances against future regulation can increase landowners’ willingness to conserve endangered species.
- Landowners prefer shorter (5-10 year) contracts and easements to conserve endangered species.
- Landowners do not like long-term contracts or permanent conservation easements. This strongly suggests that landowners don’t like many of the Habitat Conservation Plans under the ESA, which run for long time periods. Ben Cone’s and the Murray Pacific Corporation’s HCPs are for 100 years.
- Independence and autonomy are very important values to landowners, and these values exert a strong influence over their willingness to become involved in conservation initiatives in general.
- Landowners strongly prefer to have some management and decision-making authority if they are involved in a program to conserve wildlife and very much object when they do not.
- Many landowners have a strong sense of stewardship.
- Landowners are more likely to join incentive programs if they are approached by trusted intermediaries, instead of public officials from regulatory agencies.
Q: Why would the Endangered Species Reserve Program appeal to those interested in conserving endangered species?
A: There are five reasons:
(1) It would eliminate the penalties that are likely causing more harm than good, especially on private lands.
(2) It would eliminate the wasteful lawsuits that have increasingly driven the process by which the Endangered Species Act is administered.
(3) The Endangered Species Reserve Program would encourage the Fish and Wildlife Service and National Marine Fisheries Service to make more rational decisions about which species to protect, instead of being required to respond constantly to lawsuits from activist groups.
(4) The Endangered Species Reserve Program would most likely result in tens or even hundreds of landowners emerging from the shadows and volunteering that they have endangered species on their land. If landowners were free from the fear of being clobbered by the Endangered Species Act, then the most significant barrier standing in the way of a more successful approach to conserving endangered species would be removed.
(5) From a political standpoint, the Endangered Species Reserve Program is very feasible because there are landowners in every state but Arizona enrolled in the Conservation Reserve Program. As a result, many members of Congress, as well as state legislators, already have constituents enrolled in the program and therefore can easily understand applying a Conservation Reserve Program approach to endangered species.
Q: How would the Endangered Species Reserve Program be funded:
A: There are a number of ways this can be done that do not require additional spending and can even save money by being more cost-effective, such as:
(1) Cutting funding to some of the many existing programs that currently undermine species conservation, including numerous energy and agricultural subsidies. Politically, there is broad support for cutting agricultural subsidies.
(2) Dedicating the Land and Water Conservation Fund, a federal program established by Congress in 1965 that currently has a $900 million spending limit, to endangered species conservation. However, this funding would be contingent on it going toward rental contracts, such as in the Conservation Reserve Program, and not land acquisition, and the removal of the ESA’s penalties.
Q: Is this study saying the same thing others have been saying for years, which is that we need to add incentives though initiatives such as Safe Harbors, Candidate Conservation Agreements, No Surprises and Habitat Conservation Plans?
A: This study is saying that the disincentives, which cause the ESA to be counterproductive, first need be removed, then incentives need to be added. All of these other reform initiatives have limited effectiveness because they do not remove the penalties. Sprinkling a few incentives on top of the Endangered Species Act’s substantial penalties will not fundamentally reform the Act, which is what is needed if species conservation is to be substantially more successful. A number of legal scholars have made the point that these administrative reforms can only go so far to ameliorate the Endangered Species Act’s anti-conservation incentives, while others have pointed out that these reforms, because they are administrative, are relatively insecure.
Q: Isn’t this study just a rehash of what opponents of the Endangered Species Act have been selling for decades, which is that property rights and economic activity are more important than conserving endangered species?
A: This study shows how the Endangered Species Act, when it is threatening to landowners, will not successfully achieve its goal of conserving species. Therefore, the key is to remove the penalties that threaten landowners so the Endangered Species Act can more effectively conserve species.
Q: Why should landowners be compensated for following the law? After all, people have to follow all sorts of laws. Why should landowners be rewarded for what they should be doing?
A: When the government wants to convert private land for a public good, such as a highway or military base, it pays landowners the market value for the land taken. Yet in return for harboring rare wildlife, landowners are punished by having their property turned into de facto federal wildlife refuges, but are paid no compensation. William Ruckelshaus, administrator of the Environmental Protection Agency from 1970-1973 and 1983-1985 and widely respected expert on environmental policy, grasps that landowners are treated unequally under the Endangered Species Act and should be compensated:
“If I’m a landowner and someone is running a highway through my land, I may not like it, but at least I’m being compensated for it. If I’m forced to put buffers alongside streams that run through my land in order to protect salmon, sometimes those buffers take a significant amount of my land, and I think they should be compensated for that. If that’s a public good and it’s being asserted against a private property owner, then why shouldn’t the public pay for it the same way they do with a highway? But we don’t.”
Q: What is the practical reason for compensating and not punishing landowners who harbor endangered species?
A: The reality is all across the country endangered species habitat is being destroyed because landowners are not compensated and are punished for harboring these species. As the past 40 years has shown, not compensating landowners, as well as punishing them, is extremely detrimental to endangered species and the conservation of endangered species habitat.
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 Steve Brown, “How safe are species?” Interview with William Ruckelshaus. Oregon Public Radio, September 5, 2011.