Scholar argues that the Endangered Species Act fails to protect threatened species on private land.
According to one scholar, the answer is “no.”
In a forthcoming article, Jonathan H. Adler, a law professor at Case Western Reserve University School of Law, claims that the ESA has failed to achieve its key statutory mandate: the recovery of threatened and endangered species. Although some ESA interventions on public lands have proved effective in recovering populations, Adler argues that the Act has failed to protect and recover endangered species on privately owned land. He proposes a new, flexible approach to endangered species conservation to encourage population recovery for animals on private land.
The U.S. Supreme Court referred to the ESA as “the most comprehensive legislation for the preservation of endangered species by any nation.”
When the federal government determines a species is “endangered” under the ESA, also known as “listing”, it triggers a host of legal obligations for public and private actors. For example, the ESA largely prohibits the federal government from taking any action, such as infrastructure development or habitat alterations, that may threaten an endangered species. Federal agencies must also make critical habitat determinations—identifying areas and ecosystems where endangered species live—and develop management plans for a listed species.
Furthermore, private parties are prohibited from taking any action that may threaten endangered species, such as destroying critical habitat, without first receiving a permit under the ESA.
As such, the ESA protects endangered species on both public land—through land management practices of federal agencies—and private land—through requiring private parties to secure permits before undertaking any activity that threatens a protected species.
Adler explains, however, that the U.S. Congress did not enact the ESA simply to avoid extinctions. The ESA’s stated purpose is to “conserve” endangered and threatened species. The ESA defines conserve as to “bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.”
When federal agencies determine that a species no longer meets the definition of an endangered species, they are removed from the endangered species list in a process known as “delisting.”
The government has delisted only 104 species, fewer than 5 percent of species ever listed. Thirty-three delistings occurred after a species went extinct or new science suggested that the initial listing was flawed such that a species did not qualify as endangered. Therefore, only 71 species listed under the ESA recovered while under the Act’s protections, Adler notes.
In turn, Adler argues that wildlife managers should instead measure the success of the ESA by the number of endangered or threatened species that are delisted.
Adler further observes that endangered species with habitat on predominantly federally-owned land fare better than species with habitat on predominately private land. Adler points out that for every three listed species experiencing population decline on federal land, two species are experiencing population recoveries. On privately owned lands, however, for every nine declining species, just one species is recovering.
Furthermore, spending under the ESA by land management agencies that oversee public lands has a better effect on species conservation than spending by the U.S. Fish and Wildlife Service—the predominant administrator and enforcer of the ESA’s regulation of private lands. This disparity suggests that federal land management under the ESA contributes more to species recovery than the Fish and Wildlife Service’s regulation of private land, Adler contends.
After analyzing the 71 species that the government removed from the endangered species list, Adler concludes that most examples of successful species recoveries were situations where land management practices on federal land could address a specific threat to a species’ recovery.
Because conservation efforts on public land have proven effective, Adler argues that the meager species recovery rates under the ESA must result from ineffective protection of species on private land. Adler reasons that the ESA ineffectively conserves endangered species on private lands because the Act creates perverse incentives for private landowners.
When an area is designated a critical habitat for a listed species, property values decrease due to the Act’s prohibition against certain private activity that could threaten critical habitat, such as construction and land development.
Adler points out a study that found landowners were 25 percent more likely to harvest timber on forested land when they perceived their land was in close proximity to the endangered red-cockaded woodpecker. Adler surmises that these landowners are engaging in preemptive habitat destruction to prevent a “critical habitat” designation which would diminish their property values. This habitat destruction is disruptive to species conservation efforts and counter to the ESA’s goals, claims Adler.
To address these perverse incentives, Adler suggests a series of reforms to the ESA and how the federal government approaches endangered species protection on private lands.
Adler argues lawmakers could “decouple” the regulatory protections of the ESA from species listing. Currently, the regulatory protections of the ESA automatically take effect when a species is listed regardless of the nature of the threats to a species’ recovery. Instead, Adler claims wildlife managers could create flexible, species-specific management plans instead of the required costly regulations for all endangered species that impact private land values.
Alternatively, Adler proposes implementing voluntary conservation programs for private land. Implementing voluntary species and habitat conservation programs would both improve attitudes toward conservation among landowners and better preserve critical habitat on private lands, according to Adler. Adler points to the success of voluntary wetland conservation plans to suggest that voluntary programs can improve conservation outcomes.
Although Adler recognizes that preserving endangered species is a worthy goal, he cautions that the ESA will not become successful until it protects species on private lands and leads to more species recoveries.
The Endangered Species Act became law on December 28, 1973. This essay is published in celebration of the Act’s 50th anniversary.