Bad for Species, Bad for People: What’s Wrong with the Endangered Species Act and How to Fix It

Energy and Natural Resources | Policy Reports

No. 303
Saturday, September 01, 2007
by Brian Seasholes

Executive Summary

The Endangered Species Act (ESA), passed in 1973, was designed to recover species to a level at which they are no longer considered endangered and therefore do not require the Act's protection.  Unfortunately, the law has had the opposite effect on many species.  The ESA can severely penalize landowners for harboring species on their property, and as a result many landowners have rid their property of the species and habitat rather than suffer the consequences.

Over 1,900 species of plants and animals — 1,351 domestic and 570 foreign — are currently considered by the federal government to be in danger of extinction.  Once a species is listed, they are subject to a variety of conservation efforts, including federal recovery plans that can include a wide variety of measures including habitat protection.  However, these conservation efforts rarely, if ever, consider the total costs of species recovery to federal, state or local governments, and especially to private landowners.

The greatest problem with the Act is its land-use control provisions.  These provisions penalize public and private landowners by:

  • Fining landowners up to $100,000 and/or sentencing them to up to one year in jail for harming one eagle, owl, wolf or other protected species, or even its habitat, whether the habitat is occupied or not.
  • Prohibiting, or tightly regulating, otherwise normal and legal land uses, such as farming, lumbering, construction, human habitation or even visiting the land.
  • Providing no compensation landowners for the loss of land value, loss of income or lost use of land.
  • Extending regulations to land that isn't currently occupied by an endangered species — but might be suitable for the species' breeding, resting, roosting or feeding.
  • Subjecting millions of acres and millions of human residents to land use regulations for a single protected species.
    Yet, private landowners are the key to successful endangered species conservation, because 78 percent of these species are found on private land.  However, because landowners are penalized for harboring species, many of them take actions to rid their property of the species either by killing them or by applying a “scorched earth” policy that makes actual or potential habitat unsuitable through such activities as plowing, prematurely cutting trees or clearing brush.

The ESA's punitive nature also helps explain the Act's sorry record conserving species.  Proponents of the ESA cite species that have recovered due to the Act.  Yet, almost invariably these claims are untrue or exaggerated.  For example, the U.S. Fish and Wildlife Service officially claims 46 delisted species — 19 due to recovery, 17 due to data error, 9 due to extinction and one due to partial recovery/data error.  In reality, the delistings were due to the following:

  • Twenty-seven species have been removed due to data error — including the American alligator, which was delisted soon after its initial listing because it was found to be abundant, clearly indicating it was never endangered and was improperly surveyed.
  • Nine species were determined to be extinct.
  • Five species were delisted due primarily to factors unrelated to the ESA, including the ban on the pesticide DDT.
  • Five species were delisted for a variety of other reasons including: private conservation; state, not federal, conservation efforts; and recovery despite harm done by the ESA.

Congress and others have offered cosmetic reforms to improve the ESA's effectiveness — tacitly admitting that the Act's punitive approach has failed and that new approaches are needed.  However, these reforms will do little to remove the penalties that undermine the ESA.

The key to future success for endangered species protection is to set a new course based on the recognition that landowners will be cooperative and even helpful when they benefit from, or are at least are not harmed by, conservation initiatives.  This means stripping the ESA of its land-use controls.

One critical way to provide a new direction for the ESA is to promote innovative wildlife conservation in the Unites States and in foreign countries.  In America, private wildlife conservation initiatives successfully saved the bison from extinction, reintroduced bison herds and increased the numbers of eastern blue birds and wood ducks.  Led by a number of countries in Southern Africa, much of the rest of the world is heading 180 degrees away from the command-and-control model of wildlife conservation epitomized by the ESA.  These countries have realized that successful wildlife conservation depends on devolving authority over wildlife to local governments and private landowners. The reason:  If the people who bear the true costs of living with wildlife are able to benefit from it, then these people will conserve it.

America's landowners are ready, willing and able to conserve endangered species.  Sadly, the main impediment to doing so is the Endangered Species Act.

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