The Endangered Species Act: Who's Saving What?

• Author: SIMMONS, RANDY T.

Environmental policy in general and the Endangered Species Act (ESA) in particular are far removed from our roots in limited government, individual freedom, and personal responsibility. At their core are increasing coercion, expanding government, and shifting responsibility from individuals to society while shifting social costs to individuals. As the government takes charge, however, politicians, bureaucrats, and judges do not necessarily create appropriate laws and regulations. The objectives of some laws and regulations even defy common sense--save every species, zero discharge, zero risk, and natural regulation, to name but a few. The actual content of policy is animated more by emotions than by analysis as Congress makes moral statements rather than establishing functional policies and processes. Major environmental policies such as those that purportedly protect endangered species are implemented without regard to costs or results.

The Endangered Species Act is the federal law dedicated to preserving biological resources. It operates by assigning infinite value to every species and declaring that each must be saved. In 1978, in the Tellico Dam decision (TVA v. Hill, 437 U.S. 187), the U.S. Supreme Court declared that the ESA defines "the value of endangered species as incalculable," and requires that species losses must be stopped "whatever the cost" (184).

One of the ESA's most eloquent supporters, Harvard biologist E. O. Wilson (1992), declares that "every scrap of biological diversity is priceless, to be learned and cherished, and never to be surrendered without a struggle" (32). Wilson's statement may be viewed as a modern version of Aldo Leopold's claim that "if the [living world], in the course of eons has built something we like but do not understand, then who but a fool would discard seemingly useless parts? To keep every cog in the wheel is the first precaution of intelligent tinkering" (1949, 177).

Such high-minded claims may be emotionally satisfying, but by themselves they provide little guide to policy. The question remains: What to do next? As biologist Garrett Hardin put it: "And then what? As act becomes policy, as event gives way to cycle of events, what are the consequences? Good intentions are not enough; the mechanism of our policy must produce good results in this time tied world where consequences become causes" (1982, 5). If policy and court decisions declare species to have infinite value, then what? The ESA was created with the intention of saving species, but what have been the results? Are species being preserved? Are they recovering from threats? What are the costs? Who bears them?

As soon as we move from emotive statements about the value of protecting species, it becomes clear that saving every cog or species is costly. It is also clear that the ESA does not allow for reasonable comparisons of costs and benefits. In fact, the act expressly forbids that the secretary of the interior, the administrator charged with implementing it, consider economic effects when he acts to protect a species. Those effects can range from mild irritations to loss of almost all economic value of the land in question. For example, the ESA empowers the salt marsh mouse to hold back bulldozers and the inch-long Delta smelt to reduce freshwater pumping for cities and farms.

Congress does not appropriate enough funds to save every cog. Although state and federal spending on endangered species has averaged $529 billion per year during the 1990s (House Committee on Resources 1997), the Fish and Wildlife Service is so short of funds that it is unable to write recovery plans for more than 400 listed species, to identify critical habitat for more than 750 listed species, to list nearly 180 species that meet the legal definitions of "threatened" or "endangered," or to adequately review nearly 4,000 species that may be declining (O'Toole 1996, 32).

Despite high-minded intentions, the ESA does not achieve its goals. Moreover, it puts obstacles in the way of public and private preservation efforts and creates disincentives for landowners to protect species on their own property. The ESA is, in fact, dishonest legislation. Species are listed but not recovered, and the costs of carrying out the act's public purposes are disproportionately borne by private landowners.

Does the ESA Work?

The ESA authorizes the Fish and Wildlife Service (FWS) to create "critical habitat designations" and requires the development of recovery plans for species on both the threatened and the endangered lists. The purpose is to identify species in trouble, protect them initially, and develop plans and programs to restore the designated populations to viable levels. Although recovery plans have been designated for 653 of the 1,138 U.S. species listed as threatened or endangered, critical habitat has been designated for just 124 (U.S. Fish and Wildlife Service [USFWS] 1997).

A 1994 Fish and Wildlife Service report identified twenty species as having been delisted, eight because they had become extinct and eight others because the original data used to justify their listing were in error (USFWS 1994b, 41-42). According to the report, only four species had been removed from the endangered species list because their populations had "recovered" (41-42). The report also identified the gray whale, the brown pelican, and the American alligator as delisted but remaining in a special listing category (41).

However, the Endangered Species Act helped none of these species. The first four species were delisted because more were discovered than had originally been thought to exist. The alligator is also a case of data error. Officials of the Florida Fresh Water Fish and Game Commission believe that the alligator was originally listed because its population dynamics were misunderstood. An article in the National Wildlife Federation's magazine claimed that the "familiar and gratifying" recovery story about the alligator was "mostly wrong" (Lewis, 1987). In addition, alligator farming has greatly increased alligator numbers in the wild by reducing the incentives for poaching. The principal cause of the pelican's decline was reproductive failure due to the pesticide DDT, and its recovery had far more to do with banning DDT than with the Endangered Species Act. (DDT was banned in 1972, and the ESA was passed in 1973.) When the gray whale was listed, its numbers were growing, and it was &listed as its numbers continued to grow. Since the 1994 FWS report, the Arctic peregrine falcon has also been delisted, but, like the brown pelican, the peregrine recovered in large part because of the ban on DDT. The remoteness of its nesting habitat in northern Alaska is also considered a major contributing factor (Competitive Enterprise Institute 1995, 1-3; Gordon, Lacy, and Streeter 1997). Thus, the few species listed under the ESA that are now considered recovered are not ESA success stories at all, even though Secretary of the Interior Bruce Babbitt called the act "the most innovative, wide-reaching and successful environmental law that has been passed in the past quarter century" (1994, 55).

Another reason the ESA does not live up to its publicity is that, besides keeping species from going extinct, its purpose is to return them to viability. The ESA successfully lists species, but it brings few back from the edge of extinction. Over the past decade an average of 38 species have been added to the list each year, but of all listed species only 10 percent are improving, and the backlog of species waiting to be listed keeps growing (Reid 1994, 5-6).

Data Quality

Nothing in the ESA regulates the quality of the data admissible for the purpose of listing species. Data are not subjected to a scientific review process, they are not field-checked, and the Secretary of the Interior is not required to identify any gaps in the data that have been collected. One result is that species are sometimes listed needlessly (Gordon, Lacy, and Streeter 1997). Eight of the nineteen species that have been removed from the Endangered Species List are in this category. Two examples are the Mexican duck and the tuamoc globeberry, species that were listed and then delisted once new data became available.

During the 1970s the Mexican duck was listed as endangered, but it was later removed upon discovery that there is no such thing as a "Mexican" duck. What biologists initially thought was a distinct species turned out to be a blue-eyed version of a mallard that was not genetically different from regular mallards (USFWS 1978).

In 1986 the tuamoc globeberry was listed, and plans were implemented to save it from extinction. From 1989 to 1991, the Bureau of Land Management, the Department of Defense, the Army Corps of Engineers, and the Bureau of Reclamation spent $1.5 million to protect the globeberry. But the FWS eventually discovered that the tuamoc globeberry existed in far greater numbers and in more places than initially thought, so it was delisted.

One might argue that the tuamoc globeberry and the Mexican duck are successes of the act, not failures. After all, new data were allowed into consideration and, based on those data, the listing decision was reversed. Moreover, spending a few million dollars on a mistake seems virtually harmless when viewed amid the bigger picture of government spending and pork-barrel politics. Of course, a process that allows wrong decisions to be reversed is good, but in addition to the possibility of reversal, a fair policy would require that initial listing decisions rest on sound, relatively complete data. Such a requirement is especially important given the disruptive effects the resulting decisions often have on people's lives.

Costs of the Endangered Species Act

Although court decisions regarding endangered-species protection use terms such as "incalculable," "the highest of priorities," and "whatever the cost," Congress does not...