Experts encourage federal, private, and state collaboration to create tailored conservation rules.
In the coming decades, an estimated 1 million plant and animal species face extinction due to human activities. And the threat of extinction, both its speed and impact, could get worse unless humans take action.
Given the scale of the current extinction crisis, federal regulators and private actors need to collaborate to save species that the U.S. government has been unable to save on its own, according to a law journal article.
Collaborative governance—a process by which the government and non-governmental actors negotiate to produce tailored solutions to problems—is certainly not new. But collaborative governance should be used more when enforcing rules and drafting conservation plans under the Endangered Species Act (ESA), argue Robert L. Fischman and Vicky Meretsky, professors at Indiana University, and Matthew Castelli, a government worker.
Specifically, they argue that federal regulators should pursue collaborative governance by using flexible standards and tailored conservation strategies, providing national guidance to standardize the flexible rulemaking process, and involving the states in species protection.
They recommend regulators use the ESA’s protections for threatened species—species that are predicted to become endangered in the near future—for coordinating flexible conservation efforts with landowners whose land either can be used in habitat preservation or contains endangered species. The ESA’s threatened species provision takes a broad approach, allowing for conservation efforts that are “necessary and advisable.”
Fischman, Meretsky, and Castelli note, however, that federal agencies’ application of the ESA has not been as conducive to flexible collaborative governance as it could be.
Under the ESA, the U.S. Fish and Wildlife Service (FWS) and the National Marines Fisheries Service (NMFS)—the federal agencies charged with species conservation—list species as either endangered or threatened. Once a species is listed as endangered, or “in danger of extinction,” strict prohibitions are put in place for landowners and users, creating political and institutional opposition from farmers and fishers. For instance, a farmer would be prohibited from removing an endangered animal off her land even if it is interfering with her farming.
Moreover, enforcement officials have difficulty proving a particular landowner’s behavior harmed an endangered animal because harmed animals are often difficult to locate. And, the FWS and NMFS have insufficient resources to investigate landowner misconduct rigorously.
Given the rigidity and difficulty of enforcing the endangered species standard, Fischman, Meretsky, and Castelli urge regulators to use the more flexible threatened species standard to tailor context-specific rules that are “necessary and advisable” before a species becomes endangered. As a result of this more flexible approach, for instance, Utah farmers are permitted to harm threatened prairie dogs but only as long as the farmers do not plow 18 inches below the soil’s surface.
Although cooperation in the rulemaking process may relieve landowners of rigid and ill-fitting rules, Fischman, Meretsky, and Castelli maintain that the government officials engaged in collaborative species protection must still keep private actors accountable. For example, they advocate that the FWS and NMFS periodically reevaluate and revise collaboratively developed conservation rules based on evolving scientific evidence and changing circumstances.
Fischman, Meretsky, and Castelli also recommend that the FWS and NMFS provide national guidance to standardize the cooperative rulemaking process between regulators and private actors. For instance, California ranchers must avoid disturbing land or water within 0.7 miles of the threatened red-legged frog’s breeding grounds. But the threatened California tiger salamander, which has similar breeding grounds and requires similar safeguards as the red-legged frog, does not enjoy such protection because of the FWS’s inconsistent cooperative rulemaking between different actors.
Fischman, Meretsky, and Castelli also emphasize the importance of involving state governments, in addition to federal agencies, in the collaborative processes aimed at species protection.
States wield far more power to regulate private land use activities than federal agencies. And because habitat degradation is the biggest threat to imperiled species, Fischman, Meretsky, and Castelli argue that the FWS and NMFS must work with states to create manageable conservation plans.
Moreover, given the localized expertise of state regulators, state permitting programs should substitute for federal programs more frequently, argue Fischman, Meretsky, and Castelli. The state of Washington, for example, employs comprehensive timber regulations that protect the habitat of fish that swim upstream to spawn. NMFS has decided that, as long as a land user complies with Washington State’s regulations, they do not have to apply for federal permits nor will they be subject to liability under the ESA.
Despite the proposed benefits of collaborative governance, some conservationists fear that increased federal cooperation with private and state actors will cause the FWS and NMFS to focus more on compromising than rescuing the imperiled animals they are sworn to protect.
Fischman, Meretsky, and Castelli concede that agencies sometimes permit lenient conservation plans without demanding much in return from landowners. Moreover, they acknowledge that agencies may fail to consider future circumstances in collaborative rulemaking, such as how worsening climate change will alter the threatened pygmy sculpin’s habitat.
Still, Fischman, Meretsky, and Castelli contend that if federal agencies hope to improve the species extinction crisis, then they have no choice but to collaborate with private and state actors to create feasible conservation plans.