Over the last few weeks, I’ve had several op-eds published explaining why the overreliance on regulation may be undermining the effect of the Endangered Species Act. The op-eds focus on two petitions PLF recently submitted to the U.S. Fish and Wildlife Service to reform that agency’s implementation of the ESA. Those petitions, based on this law review article, argue that repealing a federal regulation will benefit both species and property owners.
In particular, the petitions argue that a regulation generally prohibiting the “take” of threatened species should be repealed. If you’re not familiar with the ESA, “take” is essentially any activity that has any sort of affect on a member of a protected species or its habitat. The late Justice Scalia had this prohibition in mind when he described the ESA as imposing “unfairness to the point of financial ruin — not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use.” When it applies, the take prohibition imposes severe burdens on property owners whose land provides habitat for endangered species.
Congress intended for the burdensome take prohibition to apply only to “endangered” species–those at imminent risk of extinction. It chose not to apply this prohibition to “threatened” species, which face only remote risks. That’s why Section 9 of the ESA, which contains the take prohibition, is expressly limited to endangered species.
Unfortunately, shortly after the statute was enacted, bureaucrats at the U.S. Fish & Wildlife Service thought they knew better than Congress and adopted a regulation extending this prohibition to all threatened species. During the ensuing decades, this regulation has been responsible for some of the greatest ESA controversies, including the northern spotted owl. These impacts re likely to keep growing, since its extremely easy to get a species listed as a threatened species. For instance, the Ninth Circuit recently approved the listing of a healthy species based on the projections of speculative models a century into the future.
The regulation ultimately harms endangered and threatened species, by undermining the incentives for private conservation. As I explain in a Washington Times op-ed,
Repealing the service’s unlawful expansion of the take prohibition will not only benefit property owners but also protected species. This is because the illegal regulation significantly undermines incentives for conservation. Absent the regulation, property owners whose lands contain species classified as endangered would have a strong incentive to aid those species. If a species recovered to the point that its status could be changed from endangered to threatened, the take prohibition would be lifted, rewarding property owners for their efforts. Similarly, property owners with threatened species on their land would have an incentive to conserve them, because if the species became endangered the take prohibition would be imposed. As it is, however, the illegal regulation subjects people to the same draconian restrictions regardless of a species’ status, greatly reducing these incentives.
Repealing this regulation will also provide much needed relief for property owners. An unfortunate fact of the ESA is that it severely punishes property owners for having maintained their property as habitat for at-risk species. This obviously gets the incentives exactly backwards, punishing the very people responsible for these species remaining around.
Congress wisely recognized these incentives when it drafted the ESA. Not only did it expressly limit the take prohibition to endangered species, but it also sharply limited the Service’s ability to adopt regulations expanding the statute’s burdens. The take regulation for threatened species exceeds the Service’s power and violates the ESA for several reasons, for reasons explained in this article. Consequently, repealing the regulation is not only good policy, it’s legally required.
Unfortunately, even win-win options like this are extremely difficult to implement because any proposal to reform the ESA is immediately met by howls from special interests who benefit from the status quo. As I explain in The Hill,
Achieving the changes in how we protect endangered species that we desperately need requires a better dialogue. So long as any proposal is immediately met with hollow accusations of “gutting” the statute, we can’t have the frank discussion we need about how to best protect species and balance the many trade-offs that come with it. Long-suffering landowners and endangered species both deserve better.
FreedomWorks interviewed me on this subject back in September: