The Endangered Species Act (ESA) has become one of the most controversial pieces of U.S. environmental legislation. Proponents claim the ESA is a success because it has saved many species from extinction. Others question its record, especially in terms of conserving species on private lands.
Controversy over the ESA increased significantly following the 2011 settlement of a lawsuit between the U.S. Fish and Wildlife Service and several environmental pressure groups, under which Fish and Wildlife is required to consider for listing under the Act a total 757 species by 2018. There is a significant risk that, in response to the threat of these listings landowners will make their lands inhospitable to endangered species, as they have in response to other listings. That would be a truly perverse and unfortunate outcome.
The Endangered Species Act, passed in 1973, aims to help prevent rare species from going extinct and improve their prospects. Since then, it has become apparent that:
1. On private lands, which comprise the main habitat for the majority of endangered species, the Act’s strong penalties have turned endangered species into financial liabilities. As a result, landowners seek to rid their property of endangered species and their habitat.
2. Reforms ostensibly enacted to address this problem, for example by adding incentives and giving landowners assurances against future regulation, have fallen short because they ameliorate but leave largely intact the Act’s perverse and counterproductive penalties.
3. Published research and other evidence point away from the Endangered Species Act’s punitive approach by showing that landowners are generally willing to conserve imperiled species so long as they are not punished for doing so, their autonomy and rights are not substantially infringed, they are compensated, and people they trust are involved.
This study proposes a new approach, called the Endangered Species Reserve Program, which would be a far more successful approach for conserving endangered species. The Endangered Species Reserve Program would remove the counterproductive penalties and replace them with an entirely voluntary system in which landowners are compensated for investing in habitat and species conservation.
The Endangered Species Reserve Program 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. There is also a wide range of innovative proposals, 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 Endangered Species Reserve Program 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 Endangered Species Reserve Program has four additional aspects that would appeal to those who are truly interested in conserving imperiled species.
1. It would eliminate the wasteful lawsuits that have increasingly driven the process by which the Endangered Species Act is administered. Over the past ten years, the Endangered Species Act has become increasingly bogged down in petitions by activist groups to list hundreds of species, which result in lawsuits against the Fish and Wildlife Service over technicalities that have nothing to do with actual conservation, such as the agency’s inability to meet statutory deadlines for responding to the ever-growing mountain of petitions.
This has earned these groups, in particular the Center for Biological Diversity (CBD), the ire of conservationists, especially because the group is often reimbursed by the federal government for its many successful procedural lawsuits. “The amount of money CBD makes suing is just obscene,” Amos Eno, a prominent conservationist and founding president of the Resources First Foundation, reportedly said. “They’re one of the reasons the Endangered Species Act has become sodysfunctional.” According to Eno, the federal government could, “recover and delist three dozen species,” with the money and staff time spent dealing with lawsuits from the Center for Biological Diversity. The Endangered Species Reserve Program would eliminate this waste because there would be no citizen suit provision. The Endangered Species Reserve Program would put the Fish and Wildlife Service and the National Marine Fisheries Service back in the business of being able to devote significantly more resources to actual conservation.
2. The Endangered Species Reserve Program would free-up 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. The federal government and non- profit groups like the Nature Conservancy have extensive data on what species and habitats are most in need of conservation. These data could be used much more effectively if the endangered species conservation process were driven more by science rather than lawsuits.
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.
3. The Endangered Species Reserve Program would most likely result in tens or even hundreds of thousands 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.
4. 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. Federal and state legislators are often hesitant to stick their necks out on an issue, especially if it is a hot- button issue like protecting endangered species. Fortunately, the presence of the Conservation Reserve Program gives politicians a good deal of the cover they will need to champion the Endangered Species Reserve Program.
Only substantive reform of the Endangered Species Act will work. That means removing the punitive regulations that cause landowners to destroy habitat, kill species, and to go silent in efforts to avoid being whacked by cocked-two-by- fours. There are several reasons why a non-punitive approach to endangered species protection would work better than the current law.
1. Common sense dictates that if you want more of something, you reward it. At the very least, you don’t punish people for providing it.
2. There is now a large and growing body of evidence, some of which has been documented in this paper, showing how the Endangered Species Act discourages species conservation.
3. America’s amazingly successful tradition of private conservation, as well as initiatives such as the Conservation Reserve Program, prove landowners across the country will willingly conserve wildlife, including endangered species, so long as they are not punished.
4. For those not convinced about the viability of a non-punitive Endangered Species Act, there is a practical consideration: 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.
5. Some Endangered Species Act advocates think the ideal approach is to reward good landowner behavior with carrots and discourage bad behavior with sticks. But given landowners’ enormous advantage when it comes to evading or breaking the law, the use of sticks will fail more than succeed. Therefore, it is in the best interests of all those concerned about conserving endangered species to get rid of the penalties.
6. Any legislation, be it for endangered species or other issues, must be based on a positive vision of the future in order to capture the public’s imagination and garner widespread support. People, including members of Congress, like supporting initiatives they see as optimistic, constructive and good for the country.
Fortunately, an Endangered Species Reserve Program presents just such an opportunity for the public, legislators, non-profit groups and business interests to support actions that are uplifting and elicit sympathy: endangered species, landowners, especially those who make a living from the land, America’s long and proud tradition of private conservation, and the amazing job American landowners and citizen-conservationists are doing to conserve this country’s land and wildlife.