The trouble with the Endangered Species Act is us
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Ted Williams
With House approval of his "Threatened and Endangered Species Recovery Act" last September, Rep. Richard Pombo, R-Calif., got a step closer to his career goal of eradicating the Endangered Species Act. Pombo, a developer posing as a rancher posing as an advocate of the public good, proclaims that the 32-year-old law is "broken" and a "failure."
Such talk infuriates Steve Moyer, Trout Unlimited’s federal advocacy coordinator, who helped procure the last reauthorization of the act in 1988. "We don’t enforce the Clean Water Act aggressively enough," he declares. "We weaken federal lands laws to cut more forests. We don’t bother to update a federal mining law from the 1800s. We don’t make the Magnuson Act conserve marine fish. We don’t provide adequate funding for federal and state wildlife programs. On and on and on. We put a huge burden on the ESA, and then some have the nerve to blame it."
Only nine (or less than 1 percent) of the species protected by the ESA have gone extinct; 68 percent are stable or recovering. Not a bad record, but nothing close to what it could be. The ESA has not failed — we have. The only thing "broken" about the act is its application.
As environmentalists note, the previous two administrations annually listed an average of 58 and 65 species respectively, while the current administration has made 40 listings in five years, every one of them in response to actual or threatened court action or petitions by scientists and citizen groups. And environmentalists rail against the Bush administration for its sly, brazen and frequently illegal (say the courts) circumventions of the ESA.
But scolding the hirelings of extractive industry for trying to disappear one of extractive industry’s nuisances is like scolding your dog for rolling in compost. You can do it, but it won’t get you anywhere because that’s the nature of the beast.
The very fact that the administration and the special interests for which it two-steps are working so hard to get rid of the law proves it works. If we want it to work better, we need to look to ourselves. Poll after poll has determined that Americans loathe extinction and adore fish and wildlife, especially if the species being administered to is "magnificent," "beautiful," "cuddly," "symbolic," or fun to catch or shoot. But we don’t adore fish and wildlife enough to vote out an administration that openly favors extinction over inconvenience to its campaign contributors. And we don’t adore fish and wildlife enough to vote out legislators like Pombo.
Moreover, it is Congress, not the White House, which funds the Endangered Species Act. In 2005, Americans coughed up 48 cents each for the 1,269 threatened and endangered species native to the United States, permitting — through their votes and silence — a congressional appropriation of only $143 million. That’s about what we spend to build a mile of superhighway.
The Endangered Species Act already contains all the mechanisms needed to save imperiled species; we just don’t use them well. Consider "safe-harbor agreements," which offer landowners immunity from prosecution if voluntary habitat work attracts listed species, whose presence would otherwise limit their land-use options.
Although safe-harbor agreements help recover species, the Fish and Wildlife Service prepares biological opinions for them, squandering time, manpower, money and the patience of landowners. The Service does this because its handbook, written before the safe-harbor policy was hatched, says it has to. It could fix the problem in seconds by suspending the requirement with a director’s order.
When the Service published its safe-harbor policy, it pledged to speed the process with a generic safe-harbor agreement for its Partners Program (which helps landowners restore habitat). That was June 17, 1999.
Today, landowners are still waiting for their generic agreement. Environmental Defense’s Michael Bean, the attorney who devised safe-harbor, points out that there is no reason for these kinds of "debilitating constraints" and that "an imaginative, results-oriented administrator of the Endangered Species Act, regardless of political party, can do better — much better." But such administrators almost never make it to the top, because we tolerate and empower a system of government that punishes bureaucrats for doing their jobs.
Finally, it’s time for environmentalists to shut up about rare species that provide or might provide something that we need. The Endangered Species Act can’t achieve its potential until the public understands that species must be saved not because they are beautiful, not because they are useful, not because they are anything, only because they are.
Ted Williams writes the Incite column for Audubon magazine and lives in Grafton, Massachusetts.
