If the Endangered Species Act were a doctor, it would lose its medical license

sen-_john_barrasso_official_portrait_7-17-07Last week, the Senate Committee on Environment and Public Works held a hearing on modernizing the Endangered Species Act. Sen. Barasso, who chaired the meeting, began by colorfully analogizing the statute to a doctor. The Endangered Species Act has a recovery rate of about 2%. If a doctor only cured 1 out of every 50 patients, he’d quickly lose his license and his reputation, Sen. Barasso explained.

But unlike the hypothetical doctor, the Endangered Species Act is not in disrepute. It has plenty of critics, to be sure. But, by and large, it’s a popular statute. Environmental groups routinely release surveys showing that it’s supported by 90% of people or more. Given its low recovery rate, why does it enjoy such support?

Part of the answer, undoubtedly, is that the survey results overstate the degree of support. A common problem with public policy surveys is “social desirability bias.” This leads survey respondents to disproportionately give the answer that they believe the questioner will view as more acceptable. This problem is made even worse by the way these surveys are designed. Here’s the question used for the 2015 survey:

As you may know, the Endangered Species Act is an environmental law established to protect all wildlife, plants, and fish that are in danger of extinction. Based on what you know, would you say that you strongly support, somewhat support, somewhat oppose, or strongly oppose the Endangered Species Act?”

This question is constructed to conflate the merits of a particular statute with whether protecting species from extinction is generally good. No wonder so few say they’re opposed to it (including less than 20% of self-described conservatives). Who’s in favor of extinction?

Another problem is widespread voter ignorance. People are rationally ignorant about public policy. We all only have so much time and can’t possibly be well-informed about every issue government attempts to address. Since most of us have no conceivable chance of affecting policy choices, we have little incentive to invest limited time in becoming more knowledgeable. The real test for these surveys would be to include a question that sought to discover how informed respondents were, such as a question asking whether the statute’s recovery rate is less than 5%, between 5 and 10%, etc. I suspect that the overwhelming support these surveys purportedly show is biased by responders who would get this question wildly wrong.

But the biggest explanation for the chasm between Endangered Species Act critics and supporters, in my view, is that they talk right past each other. Critics focus on the statute’s abysmal recovery rate. Supporters focus on the fact that only 1% of listed species have gone extinct. The debate over which measure of success is better obscures more than it reveals. Federal and state governments do a wide variety of things to protect endangered and threatened species, most of which are nominally under the auspices of the Endangered Species Act. Some of those work very well and others not so much. A rational debate would focus on what’s working, what isn’t, and what the costs of each are.

For instance, state-led voluntary conservation programs have become an increasingly important tool in avoiding federal listings. These programs have generated very promising conservation results, by encouraging proactive recovery efforts. Similar programs have been implemented for several high-profile listed species, also with success. I’m not aware of many critics who oppose voluntary programs like these.

On the other hand, the statute’s “take” prohibition, which makes it a crime for anyone to do anything that has some effect on a single member of a listed species or its habitat, is highly controversial. This provision is what deprives property owners of their rights to use their land and empowers special interests to stop productive activities they dislike. Unlike the voluntary conservation programs discussed above, this prohibition applies to every listed species, regardless of the costs or benefits.

At last week’s hearing, Gordon Myers of the Southeastern Association of Fish and Wildlife Agencies argued that this provision is overly burdensome and ineffective. In particular, he argued that it should not be automatically applied to threatened species—those which only may become endangered at some point in the future.

That’s an argument I’ve long championed. Congress explicitly limited the take prohibition to endangered species (those at greatest risk). But federal bureaucrats thought they knew better and forbade the take of any threatened species by regulation. That regulation is illegal and counterproductive. It reduces the incentives for states, industry, and property owners to take affirmative steps to recover species.

To be worthwhile, the debate over the Endangered Species Act’s merits, and possible reforms, has to be this granular. Asking whether the statute as a whole is beneficial or characterizing any proposed reform as “gutting” the statute is wildly unproductive for anything other than fundraising. Instead, the debate should be about whether the take prohibition, critical habitat, and other controversial provisions are effective at conserving and recovering species and whether they can be made less burdensome without undermining conservation. That’s how we modernize the Endangered Species Act.


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