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

Policy Reports | Energy and Natural Resources

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


Majestic bald eagles, powerful grizzly bears, stately gray wolves — these and other charismatic species typically come to mind whenever the Endangered Species Act (ESA or the Act) is discussed.  Beneath this feel-good veneer, however, lies the troubling reality that the ESA has been detrimental to the very species it is supposed to protect.  The reason:  The law's harsh penalties induce landowners to rid their property of species and habitat.  In short, because the ESA is bad for people, it is bad for species.

“The Endangered Species Act (ESA) turns landowners into the enemies of wildlife.”

How the Endangered Species Act Works.  The ultimate goal of the ESA is to help recover species to the point that they no longer require the Act's protection.  The U.S. Fish and Wildlife Service (the Service) is the primary federal agency responsible for implementing the Act, under the direction of the Secretary of Interior.  The Interior Secretary, in cooperation with the Secretary of Commerce, maintains a list of species, subspecies and specific populations of plants and animals in the United States and other countries that government officials judge to be threatened or in danger of extinction.  Currently, 1,921 species — 1,351 domestic and 570 foreign — are listed.

The Service and other federal agencies can initiate the process of listing a species.  Nongovernmental groups and even individuals can petition the Interior Secretary as well.  Once a species is listed, the Secretaries are required to take such actions as they deem necessary for the species' recovery.  For domestic species, this tends to include recovery plans approved by the Service — the “blueprints” that lay out the steps necessary, such as captive breeding programs and habitat protection, to achieve recovery.  Yet conservation of species with plans, as well as those without plans, does not fully take into account the costs involved to federal, state and local governments, or to private landowners. 1

Recovery plans are not written for foreign species, which are usually listed under the Convention on International Trade in Endangered Species (CITES).  CITES requires signatory nations, including the United States, to prevent the importation or sale of designated species.

The Achilles' Heel of the Endangered Species Act.  The ESA is widely considered the most powerful environmental law in the nation, but in 1973 it passed Congress overwhelmingly because members “thought they were voting for legislation to protect eagles, bears and whooping cranes,” said Lynn Greenwalt, Service director.  The problems with the Act were not immediately evident because few, if any, legislators understood the implications of the law's powerful and far reaching land-use control provisions, or were aware that such provisions existed. 2

The ESA's tremendous power became apparent with the landmark 1978 Supreme Court Case, TVA v. Hill , in which the snail darter, a two-inch species of fish, temporarily halted construction of a large dam by the Tennessee Valley Authority. 3 As a result, it was clear that the Act could be used to stop a wide variety of activities, from timber cutting to home building to public works projects on both public and private land.

One might think that such a powerful law would benefit imperiled species because they often need concerted efforts to save them from extinction and return them to healthy self-sustaining populations.  But this reasoning, and the ESA's feel-good image of protecting charismatic species like the bald eagle, ignores the Act's fatal flaw:  It harms the very species it is supposed to protect.

“The ESA gives federal agencies the power to control private land use.”

The fate of imperiled species, and even some very common ones, rests in the hands of the Earth's most powerful and widespread species — humans .  Therefore, to be successful, wildlife conservation must take into account the effects of preservation efforts on people, especially the landowners who harbor the wildlife on their lands.  Unfortunately, the ESA does just the opposite by using a rather severe form of command-and-control:

  • Landowners can be fined up to $100,000 and/or sentenced 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.
  • Any land, private or public, which is a habitat for an endangered species is potentially subject to federal land-use controls.  These controls can increase the cost of or prohibit entirely any activity, including farming, lumbering, construction, human habitation or even human visits to the land.
  • Landowners almost invariably receive no compensation for the loss of land value or income or use of the land.
  • ESA regulation extends to potential habitat — lands currently unoccupied by a listed species, but suitable for breeding, resting, roosting or feeding.
  • Habitat protection for a single protected species can subject millions of acres and millions of human residents to land-use regulations.

Indeed, the ESA has turned private lands into defacto federal wildlife refuges.  By contrast, the federal government usually pays fair market value when it wants to acquire private land to create a military base or even a National Wildlife Refuge, thereby adhering to the U.S. Constitution's Fifth Amendment, which says, in part, “...nor shall private property be taken for public use without just compensation.”  But when it comes to housing endangered species, landowners foot the bill.

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