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Red Lodge | Oct 17, 2012 05:55 AM

By Heather Hansen, Red Lodge Clearing House

There’s an important change brewing in the protection of endangered species. It appears to push economic considerations higher up in the part of the law dealing with critical habitat designation. The shift comes in the form of a proposed rule by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service, the agencies that determine which plants and animals require federal protection, and would change when economic analyses for critical habitat designations are conducted and published.

Critical habitat is defined in the Endangered Species Act (ESA) as a specific geographic area that is essential for the conservation of a threatened or endangered species. Basically, all species need space to feed, to rest and to reproduce. It may include areas that are not currently occupied by a species, and it can include both public and private land. Scientists rely on several criteria to identify critical habitat and their determinations are peer-reviewed and open for public comment before they are finalized by the Secretary of the Interior.

The proposed change -- which would require that the economic impact of establishing critical habitat be considered alongside the designation itself -- is being driven by a presidential memorandum issued several months ago in regard to the Northern Spotted Owl, a species that was initially listed as threatened in 1990. It took until 2008 to designate critical habitat for the species, though that plan has been in revision since then. The proposed rule is being touted as a way to reduce regulatory burden, and as a way to exercise “flexibility and pragmatism” in administering the ESA. The agencies insist that both transparency and public comment will be improved by presenting the economic impacts, which normally come later, upfront. I largely disagree. Particularly in our current political and economic climate, forcing the economic analyses to be conducted early in the process could force decision makers to overweight economic impacts, something they are not supposed to do.

The ESA is a remarkable, strongly-worded statute. The original Act, passed in 1973, declares that “…various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation.” It demands that biological factors are paramount and that listings be made “on the basis of the best scientific and commercial data available.”

snail darterIn several high-profile cases shortly after the law, though, plaintiffs argued that the Act unfairly hampered economic development. In 1978, when the Tennessee Valley Authority’s $100 million Tellico Dam project was derailed by a tiny endangered fish, the case went all the way to the Supreme Court. The Court famously sided with the fish saying, “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.”

That ruling prompted an outcry, with worries that the entire country would ultimately be designated critical habitat. So the Senate did consider several amendments to the ESA that would have taken a huge swipe at the statute by requiring an economic balancing test. While that was ultimately rejected, Congress placated ESA opponents with two provisions -- one which requires the USFWS to “consider” economic factors when designating critical habitat. But while they may be considered, the good of the species is still prioritized over economics as the major factor in making critical habitat decisions. In 1982, in order to solidify the importance of science over private interests in ESA listings, Congress specifically added the word “solely” to the beginning of the Act’s phrase “on the basis of the best scientific and commercial data available.”

Since setting aside critical habitat has always been one of the most controversial aspects of the statute, the agencies have largely turned a blind eye to it. Even though studies show that species with protected habitat are twice as likely to avoid extinction than those without it, thousands of species have no such designations. This key aspect of the ESA has only really been in play for the past decade or so (since conservation organizations started suing the feds for downplaying it) and, during that time, it has led a checkered life.

A study released last July looks at 169 peer-reviewed critical habitat designations made from 2002 to 2007, during the George W. Bush years. The findings were dismal. Of those 169 peer reviews, 85 recommended increasing the critical area for 36 species. But in 34 of those designations the USFWS ultimately reduced the critical area by nearly half. The critical habitat also tended to focus on where species nested or found food and gave short shrift to historic range and the space needed for mate selection.

In the years since then, the Obama administration appeared to take a stand against political interference with an albeit vague “scientific integrity” policy which was intended to remind all federal agencies that science is king (whether or not it’s been effective is debatable). Earlier this year came a proposed rule by the USFWS to clarify the meaning of a species being threatened or endangered in a “significant portion of its range” which could sanction the dismissal of a species’ historic range in ESA and critical habitat determinations.

Mexican spotted owls

Last year two controversial critical habitat cases, one involving ranchers and the Mexican spotted owl and the other builders and 15 species in Northern California, made it to doorstep of the Supreme Court, which ultimately chose not to hear arguments on them. In both cases, the plaintiffs argued that the feds didn’t sufficiently take into account the economic impacts of habitat designations.

While the courts remain consistent in their interpretations of the ESA, the statute is being weakened in other ways as critical habitat designations are being challenged routinely. In this climate, the latest move by the USFWS must be scrutinized. The presidential memorandum specifically requires that “job impacts” be considered when considering critical habitat and that the agencies should “adopt the least burdensome means, including avoidance of unnecessary burdens on States, tribes, localities, and the private sector, of promoting compliance with the ESA.”

In a bad economy, measures to preserve humanity trump the conservation of species lower down the food chain. You don’t have to look much further than the priorities expressed by the camps competing for president: employment, energy, health care, education and public safety are front and center, while talk of the environment is virtually non-existent.

This is a touchy time to put economic impacts on par with scientific imperatives, and the proposed rule sets the stage to subject critical habitat designations to a cost-benefit analysis. This plus or minus approach is helpful in many areas, but not in regard to biodiversity. While the costs of reserving an area of land as habitat are often easily quantifiable, benefits require an unsatisfying, abstract non-market valuation.

Lynx FWSHow much is that grizzly in the backcountry worth? One famous “willingness-to-pay” survey (done in 1996 during a relative period of prosperity when gas cost $1.23/gallon) sought to determine how much bald eagles were worth; it concluded that the average American household was willing to pay $257 to prevent their extinction. This is interesting but we can’t truly compare what may be sacrificed with what may be sustained. If all Americans had to pay out of pocket to preserve bald eagles and chose not to, what would have been the social cost of losing our national icon? Faced with that possibility, some would say bald eagles are priceless.

At the time, decades ago, that the “economic impact” piece was added to the ESA it was recognized as an apples-to-oranges comparison. It wasn’t meant to be an exact calculation but a passing glance to ensure that costs and benefits were not wildly out of proportion. Conservation requires trade-offs, but maintaining biodiversity simply cannot be measured along the same metrics as money.

Without any further context, the proposed rule threatens to exacerbate an existing problem and weaken the ESA. Considering economic effects in tandem with the critical habitat designation can only work if there is dialogue between the competing priorities while the habitat is being established. Keeping politics out of this process and presenting a fair picture of species in imperil will require major effort, but we the people will be the better for it. The public may comment on the proposed rule through October 23.

Essays in the Range blog are not written by High Country News. The authors are solely responsible for their content.

Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.

Image of the snail darter, which delayed construction in Tennessee, courtesy U.S. Fish and Wildlife Service.

Lynx image and Mexican spotted owl images courtesy U.S. Fish and Wildlife Service

Chris Eder
Chris Eder Subscriber
Oct 19, 2012 01:28 PM
While this is an opinion piece, I think there a quick reality check is in order. First Hansen writes, "the proposed change would require that the economic impact of establishing critical habitat be considered alongside the designation itself." This is a mischaracterization of the proposed rule. The current regulations already require the FWS and NMFS to consider economic impacts of critical habitat designations. Under the current regulations, the economic impacts analysis must be published alongside the final rule. Under the current regulations the public can review the economic impact, but if an error in the analysis undermined the final rule, their primary recourse is to challenge the final rule in court. The proposed rule would require publication of a draft economic analysis with publication of the proposed rule instead.

Second, Hansen's main concern is that sharing the draft analysis earlier "could force decision makers to overweigh economic impacts." Certainly, there is a risk that the FWS and NMFS could overweigh economic factors in their designation, but it is unclear how sharing a draft economic analysis would make matters worse. After all, it is not as if the FWS and NMFS would not have seen their draft economic analysis in preparing a proposed designation.

It might be more precise to state that this rule would give industry an opportunity to comment and criticize an economic impact analyses prior to a final rule. This certainly could result greater consideration of economic impacts. Of course this also gives the public a chance to make similar comments. All early enough in the regulatory process to avoid litigation.

Third and finally, when it comes the the primary point in this rule, Hansen completely misses the mark. The proposed rule formally adopts the Service's incremental analysis approach to economic impacts analysis. This means where a species is already listed, only the additional impacts of the critical habitat listing should be considered. This is not a settled issue, in fact there is a split between the 9th and 10th Circuits on precisely this question. This rule resolves this conflict without litigation and in a manner that is better for listed species.

I suspect Hansen is looking to stir up the public to issue comments on the a portion of this rule, while failing to mention that the rule does a lot of good too. While this is smart advocacy, it is terrible journalism. Perhaps Ms. Hansen should change her title.
Heather Hansen
Heather Hansen
Oct 19, 2012 01:39 PM
Chris - thanks for the input; I especially appreciate you mentioning the 9th & 10th Circuits, which I didn't have the space to discuss here. Your points are well-taken and, you are correct, the one silver lining of the rule is the public input piece but that does not sufficiently balance the potential industry influence. And, right again, stirring up public comment by advocating for one position is exactly what I hoped to do.
Andrew Sipocz
Andrew Sipocz Subscriber
Oct 19, 2012 07:58 PM
This is the problem when it comes to extinctions.


"One famous “willingness-to-pay” survey (done in 1996 during a relative period of prosperity when gas cost $1.23/gallon) sought to determine how much bald eagles were worth; it concluded that the average American household was willing to pay $257 to prevent their extinction."

But how much would future generations be willing to pay to keep a species from going extinct? When it comes to environmental issues like species extinction or global warming, future generations have no vote though they are the ones most likely to be adversely affected.

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