The Endangered Species Act is an ineffective regulatory burden

The Endangered Species Act is all over the news lately. The Washington Post breathlessly warned that Congressman Rob Bishop (R-Utah) “wants to ‘invalidate’ the Endangered Species Act” and that he’s “getting close.”

In that same newspaper, a George Washington University biologist wrote last week, “We don’t need to save endangered species” because “extinction is part of evolution.”

Here’s what we do know — when species are endangered, the Endangered Species Act is an ineffective tool for protecting them. 

{mosads}The U.S. Fish and Wildlife Service (Service) states the purpose of the Endangered Species Act (ESA) is to “protect and recover imperiled species and the ecosystems upon which they depend.”

The agency’s website even says, “The law’s ultimate goal is to ‘recover’ species so they no longer need protection under the ESA. Recovery plans describe the steps needed to restore a species to ecological health.”

Yet less than one percent of the species listed have ever been delisted over the forty-year tenure of the ESA. This shows the ESA is not working, nor accomplishing its goals set by Congress.

In fact, Fish and Wildlife seems to resent its own purported successes.

Take the case of the golden-cheeked warbler, for example. In May of 1990, the Service listed the species as endangered on an emergency basis, based on faulty information that the species was rare and only existed in spatially separated populations within Travis County, Texas. 

But newer data, from a 2015 study by the Texas A&M Institute of Renewable Natural Resources shows that the warbler population is 19 times larger than when the species was listed, and there are five times more warbler breeding habitats (6,480 square miles) than estimated in 1990.

But the species is still listed as endangered, and burdensome regulations and onerous penalties remain in place for disturbing its habitat (for example, the current participation fee for take of golden-cheeked warbler habitat in Williamson County, Texas is $9,000 per acre for tracts smaller than 200 acres). In response to the Texas Public Policy Foundation’s delisting petition for the warbler, the Service recognized the A&M study as the best available science, yet rejected the petition causing the Foundation to sue to delist.

In the way that it has been applied, the ESA also exceeds federal constitutional power. In the Texas Public Policy Foundation’s lawsuit challenging the constitutionality of the ESA to regulate intrastate species, in this instance a cave-spider species only existing in central Texas, the Foundation shows why ESA regulation of nearly two-thirds of species listed under ESA is unconstitutional under the Necessary & Proper clause. The federal government has limits set by the United States Constitution, and it has no business regulating intrastate species that don’t affect commerce. 

Yet the ESA is being wielded as an ax, when at best, a scalpel is called for. The environmental left has weaponized the ESA. Now, USFWS uses critical habitat designation to encumber property that is not habitable to a protected species as a way or freezing private property.

The ESA’s most powerful provision is in Section 9 – the taking provision. This makes it a felony to “take” any species that is listed as threatened or endangered. That broad definition includes “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.”

The U.S. Supreme Court has broadened that further, to include any disruption of the species’ habitat.

This has led to broad control by the federal government over private property.

So if the ESA fails to protect truly endangered species, what does? We know the answer to that.

American farmers, ranchers, and homeowners with an intimate knowledge of their land and resources are much better suited to protect the environment than the federal government far removed from both the people it represents, and the species it seeks to protect.

And voluntary programs, such as the Monarch Butterfly Habitat Exchange, can encourage landowners to participate in conservation efforts without violating the Constitution. Under the Monarch program, farmers and ranchers are given incentives to plant milkweed to assist the butterfly’s migration.

Such private efforts, proven to be effective, should be allowed to flourish without federal involvement. 

With the ESA so much in the news, we should bear in mind that when it comes to endangered species, the ESA is a terrible approach to saving them having an abysmal track record of success.

And when it’s abused to stifle economic development, undermine private property rights and destroy jobs, it’s counterproductive to one species in particular — our own. 

Robert Henneke is general counsel and director of the Center for the American Future at the nonprofit Texas Public Policy Foundation.