Reforming the Endangered Species Act

Peregrine Falcon at Ft Collins rehabilitation center.
Peregrine Falcon at Ft Collins rehabilitation center.

The Endangered Species Act of 1973 (ESA) was one of the most important achievements of the bipartisan environmental and conservation movement. And the Supreme Court’s finding in TVA vs. Hill (1978) cemented the act as a roadblock for species extinction. That is its major effect today 40 years later.

And that is not good enough.

Congress intended to do more than halt human action that drives species extinction. It meant for the ESA to lead to species recovery. And the record is at best mixed on recovery. We have seen recovery of some iconic species – wolves, grizzlies, eagles, peregrines, and some familiar species of fish. Nevertheless, many animals and even more plants protected under the act languish without any meaningful chance to recover their numbers and become viable.

Why is that?

There is the usual partisan divide on the extremes. But the more important point is that Fish & Wildlife and other federal agencies simply are so underfunded and over litigated that they cannot do the fieldwork to save the species. A simple Google search will reveal hundreds of articles on the funding issues.

What is less understood is the public process around listing and recovery. Endless public process with effectively years of opportunity for public involvement, is followed by a decision, that is litigated for years. Often the end of the litigation is continuous court monitoring of the issue with federal judges acting as wildlife managers.

Even if there was an inexhaustible supply of money, this process would need reform. It needs bipartisan reform. Just as the act was a bipartisan effort in 1973.

The Trump Administration in conjunction with the Department of Interior and various senators and congressman are beginning a discussion. I applaud the initiative even it has  resulted in the usual partisan mudslinging. “You just want to drill for oil!” “You just hate capitalism!”

It is actually not hard to tell if someone is serious about ESA reform. Are they talking about species recovery or something else? If they are just talking about preserving the existing process, they do not actually care about the species. Why? Because the animals/plants are in purgatory languishing on the list. If they just talk about how the act is holding back business or extraction, then they are just trying to tear down the only part of the act that works.

If the reform is focused on species recovery, then we need more state involvement. States are not flush with money, but they do have more for conservation and more flexibility than the federal government. It is the reverse of 1973.

Without gutting Sections 4 and 7 of the ESA, which block human action that eradicates species, we need to bring life to Section 6. Section 6 empowers the states in cooperation with the feds, other states, and NGOs to recover species. It has languished in my experience, because state efforts face an uncertain and changeable federal reaction.

We have a recent example on sage grouse. The governors, state conservation agencies, state legislatures, NGOs, and others throughout the Western sage grouse range reached a bipartisan cooperative recovery plan. There was significant enthusiasm for that type of solution across the conservation and political world versus the rigid Section 7 listing process.

Nevertheless, with the change in administrations the plan was reversed and is back at Interior for review. That does not save sage grouse. And worse it halts similar projects at the state and regional level out of uncertainty.

If we carefully implement joint cooperative agreements for sage grouse and others, we have a chance of reversing the sage grouse decline. Once that is successful, if we could work on other species, confidence might build again that we can recover species. If both sides had confidence that a listed animal could recover and be delisted, we might be able to resume science based listing and management and no doubt situational new extraction/development.

If you focus on species recovery, it is not hard to do the right thing. It is a wildly popular cause with the public. We just have to do what Americans used to be really good at – work together, “can do” focused, innovate, and overcome.


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