Legislative Efforts to Increase State Management for Imperiled Species Should Be Rejected

• Author: Stephanie Kurose
• Position: American University Washington College of Law Alumna, 2015, Endangered Species Policy Specialist, Center for Biological Diversity
• Pages: 15-16

15

Fall 2017

legiSlative effortS to increaSe State

management for imperileD SpecieS ShoulD

be rejecteD

By Stephanie Kurose*

The Federal Endangered Species Act (ESA or “Act”)1 is

our nation’s most successful conservation law. Its pur-

pose is to prevent the extinction of our most at-risk

plants and animals, increase their numbers, and effect their full

recovery—and eventually their removal from the endangered

list. Since its enactment in 1973, the Act has been more than

99% effective at saving species under its protection from extinc-

tion, and it has put hundreds more on the road to recovery.2 Sci-

entists estimate that at least 227 species would have likely gone

extinct without the ESA’s passage.3

Despite this success, legislative efforts by some members

of Congress to weaken the ESA have signicantly increased

recently. Since 2011, 300 attacks have been launched against

endangered species and the ESA.4 These attacks continue

despite the fact that nine out of ten Americans support the Act

and want it either strengthened or left unchanged by Congress.5

Common among these attacks are calls for increasing

state authority to manage threatened and endangered species.

The ESA is known as a “law of last resort,” in that it is only

triggered after a state’s efforts to conserve habitat and protect

species has fallen short. It is a necessary backstop that pro-

vides species with federal protections, typically after decades

of decline and after state management has proven insufcient.

Since a majority of states lack legal authority and resources to

ll the conservation role played by federal wildlife agencies,

legislation that seeks to shift back this authority to the states

could spell disaster for species.

Introduced by Sen. Dean Heller (R-Nev.), the “Endangered

Species Management Self-Determination Act” would allow

governors to take over management of species found only in one

state with no requirement that such management be equivalent

to ESA protections.6 This legislation would severely undermine

protections for as many as 1,100 species,7 including nearly 500

species in Hawaii alone and at least one species in most states

across the country. States would be able to take over manage-

ment of species perceived to conict with powerful special

interests, provide little to no protection, and the U.S. Fish and

Wildlife Service (FWS)—one of the wildlife agencies in charge

of implementing the ESA—would be powerless to intercede.

Another disturbing bill is the “State, Tribal, and Local

Species Transparency and Recovery Act,”8 which seeks to

undermine the Act’s “best available science” standard by

automatically deeming any and all information submitted

by a state, tribal, or county government as the best avail-

able science—even if that information is outdated, incorrect,

contradictory, or not supported by peer review. This legislation

is completely unnecessary because the ESA already requires

the FWS to utilize any data that is considered “best available”

in its decision-making.9

Currently, the majority of state conservation laws are

severely inadequate to achieve the ESA’s conservation and

recovery goals.10 Only eighteen states have laws that protect all

animals and plants covered by the federal ESA, with thirty-two

states providing less coverage than the federal statute.11 West

Virginia and Wyoming do not have any endangered species

laws, and seventeen states offer no protections for imperiled

plants.12 And perhaps most concerning is the fact that forty-ve

states provide very limited or no authority for species recovery

planning.13 Given that a primary goal of the federal ESA is to

recover species to the point that they no longer require the Act’s

protection, and the fact that almost every single state currently

has no authority for such recovery planning is a clear sign that

management for imperiled species should not yet be handed

back to those states.

In addition to inadequate state laws, many states do not

have, or in some instances are unwilling to provide, the fund-

ing needed to manage their threatened and endangered species.

Hawaii—a state that has over 500 listed species—will spend

only $3.5 million in 2017 on endangered species, out of the total

budget of $138 million allocated to the Department of Land and

Natural Resources.14 That averages out to less than $7,000 spent

on endangered species. By contrast, each of Hawaii’s twenty-

two game species will receive around $250,000. Funding for

Hawaii’s endangered plants and animals mostly comes from

the Federal Government via grants under Section 6 of the

Endangered Species Act.15 Thus, the state itself spends almost

none of its own funding on listed species.

Oil-producing states, like Wyoming, are often very hostile

towards the ESA because they falsely argue it is a threat to eco-

nomic development. As a result, they do not prioritize the recov-

ery of endangered species. However, a 2015 paper analyzed over

88,000 ESA consultations since 2008 and found that no projects

were stopped because of endangered species.16 Nonetheless, in

FY 2016 Wyoming allocated only $3.2 million—or 5%—of its

wildlife budget to the state’s twelve threatened and endangered

species. Out of that $3.2 million, 37% was federally-funded,

4% came from the State General Fund, 57% came from Game

* American University Washington College of Law Alumna, 2015, Endangered

Species Policy Specialist, Center for Biological Diversity

16 Sustainable Development Law & Policy

and Fish license revenues, and 1% came from nongovernmental

grants. Thus, Wyoming only spent $128,000 of its own funding

on managing its imperiled species. By contrast, the state spent

$54.8 million on its game species.17

Without signicant reforms to state wildlife conserva-

tion laws and a substantial increase in funding for imperiled

wildlife, legislation proposals to cede federal authority over

imperiled species back to the states will likely undermine

conservation and recovery efforts, lead to a greater number

of species declining, and result in fewer species recovered. If

states manage their species properly from the onset, it is highly

unlikely that the federal government would ever have to step

in. The federal ESA is only triggered once a species is at such a

critically low level that it would otherwise go extinct if not for

the federal protection. Thus, legislation that would cede federal

authority to manage threatened and endangered species back to

the states should be rejected.

enDnoteS

1

Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2012).

2

See News Release, U.S. Fish & Wildlife Serv., NOAA Propose Actions to

Build on Successes of Endangered Species Act (May 2015), https://www.fws.

gov/news/ShowNews.cfm?ID=7CA2994B-D4A6-1658-411D5635AAB69560.

3

See generally D. goble, et al., the enDangereD SpecieS act at thirty:

renewing the conServation promiSe (2005).

4

See Legislative Attacks on the Endangered Species Act During the Trump

Administration, ctr. for biological DiverSity, http://www.biologicaldiversity.

org/campaigns/esa_attacks/trumptable.html (last updated Sept. 8, 2017).

5

See B. Tulchin et al., Poll Finds Overwhelming, Broad-Based Support

for the Endangered Species Act Among Voters Nationwide, tulchin reSearch

(July 6, 2015), https://www.defenders.org/publications/Defenders-of-Wildlife-

National-ESA-Survey.pdf.

6

S. 935, Endangered Species Management Self-Determination Act, 115th

Congress (introduced Apr. 25, 2017); H.R. 2134, Endangered Species Manage-

ment Self-Determination Act, 115th Congress (introduced Apr. 25, 2017).

7

See Endangered Species Found Only Within One State (Intrastate species)

ctr. for biological DiverSity, https://www.biologicaldiversity.org/programs/

biodiversity/pdfs/Endangered_species_only_found_in_one_state.pdf (last

visited Nov. 8, 2017).

8

S. 735, State, Tribal, and Local Species Transparency and Recovery Act,

115th Congress (introduced Mar. 27, 2017); H.R. 1724, State, Tribal, and Local

Species Transparency and Recovery Act, 115th Congress (introduced Mar. 1,

2017).

9

16 U.S.C. §1533(b)(1)(A) (2012).

10

See generally, Alejandro E. Camacho, Conservation Limited: Assessing the

Limitations of State Laws and Resources for Endangered Species Protection,

u.c. irvine Sch. of l. ctr. for lanD, env’t, & nat. reS. (CLEANR) (Aug.

2017), http://www.law.uci.edu/academics/centers/cleanr/news-pdfs/cleanr-esa-

report-nal.pdf.

11

See id. at 3.

12

Id.

13

See id. at 13.

14

Department of Land and Natural Resources Report, State of haw. 949

(2017), https://budget.hawaii.gov/wp-content/uploads/2015/12/23.-Department-

of-Land-and-Natural-Resources-FY-17-SUPP.pdf.

15

16 U.S.C. § 1535 (2012).

16

See generally Jacob W. Malcom & Ya-Wei Li, Data contradict common

perceptions about a controversial provision of the US Endangered Species Act,

112 PNAS 15844 (2015).

17

See Wyoming 2016 Statewide Hunting Season Forecast, wyo. game &

fiSh Dep’t, https://wgfd.wyo.gov/Hunting/Wyoming-Hunting-Forecast#elk

(last visited Nov. 8, 2017).