ESA Under Attack. Again.

The Washington Post tomorrow is running an Op Ed written with Peter Alagona, a colleague in environmental studies at UCSB. We were approached by the Post and asked to write a piece addressing the current raft of bills that seek to weaken the Endangered Species Act and sharing our views about alternatives. With a tight limit of 700 words, we could not go into much detail but hope you find informative our assessment of the current legislation and promising future paths.


The world’s strongest conservation law is under attack. It needs to be fixed instead.

The strongest conservation law ever enacted by any country, the Endangered Species Act, is under attack. Again.

Over the past three decades, bills in every Congress have sought to weaken the ESA, undermining a crucial law that most Americans support. The 44-year law needs reform, but not like this.
Passed with nearly unanimous bipartisan support and signed by Richard Nixon in 1973, the ESA is not just a law; it is a moral pledge to protect plant and animal species from going extinct. The law mandated use of the best available science, making clear that political and economic factors should not determine which species to protect.

This consensus did not last long. The new law had teeth. To the surprise of many, it stopped the development of a Tennessee dam in 1978 that would have wiped out a local fish. Since then, critics have denounced it as a federal overreach and threat to property rights. Supporters counter that these complaints are overstated. The ESA works. Since its passage, only 10 of the ESA’s more than 1,600 protected species have gone extinct despite a tripling of GDP and a population increase of more than 100 million people.

Rather than seeing the act for what it is — a product of its time with strengths and weaknesses — it has become a polarizing issue in American politics. You’re either for it or against it. Past bills targeting the ESA have failed due to Democratic pushback and public disapproval, but this year, with a Republican Congress and White House, may be different.

Five proposed bills, four of which have been around in one form or another since the Reagan era, threaten to weaken the Act. To look at just two, Rep. Pete Olson’s (R-Texas) bill would prevent listing threatened species if doing so would cause significant economic effects. This would change the very purpose of the law. The Endangered Species Act would become the Endangered Innocuous Species Act. Rep. Dan Newhouse’s (R-Wash.) bill would require that federal agencies use scientific data submitted by state, tribal or county governments in its listing decisions, even if it is biased or inaccurate.

These proposed amendments would make it more difficult to add species for protection, stalling conservation efforts. More important, neither these nor the other bills would make the ESA more efficient or effective.

So what kind of reforms would actually improve the Endangered Species Act and further its moral mandate? As a starting place, follow the money.

As any student of economics knows, incentives matter. The fundamental political problem with the ESA is that its incentives don’t match its ethics. Conserving endangered species benefits everyone in society, but a small number of people bear the cost — usually the landowners whose property use could be restricted if a protected species turns up.

Having an endangered species on one’s land can too often be seen as a burden. Roughly 90 percent of endangered species may be found on private lands, so this is not a small issue. ESA reforms should focus first and foremost on shifting the perception of endangered species as a liability into a potential asset.

Tax incentives and subsidies are available in many areas of conservation. Forty million acres are protected under conservation easements, many encouraged by tax deductions. Farmers and ranchers accept billions of dollars for habitat protection and restoration. The Farm Bill’s Working Lands for Wildlife program, for example, supports species conservation on almost 7 million acres, but we don’t usually think of the ESA through this prism. Why not shift funds or provide deductions for landowners who successfully enhance and maintain their habitat for endangered species? This would be far more targeted than traditional subsidies.

Since the 1990s, the government has developed creative programs that reduce the cost of complying with the law by giving landowners more flexibility. Millions of acres have been enrolled in conservation plans that protect habitat in some areas while allowing development in others, in markets that reward entrepreneurs who create species habitat to offset losses elsewhere, and in proactive efforts to prevent species from getting listed in the first place. None of these was envisioned in the original law. Each has flaws. But these and others suggest a practical path forward. Why not revise the ESA to encourage more such innovative programs that allow firms and individuals to take the lead in advancing conservation?

ESA reform is not a binary choice between weakening the law or keeping the status quo. There is a better path. ESA amendments should both celebrate the law’s strengths and recognize its shortcomings, matching its incentives with its ethics.

Reader Comments

One Reply to “ESA Under Attack. Again.”

  1. What might you think of recent developments at the FWS?

    There is this change of policy in some National Wildlife Refuges (not really ESA, but evidence of an attitude):

    And then this oddly open-ended request for comments:

    I’m not sure what to make of it, other than it seems to be a reflex reaction to anything done by the Obama Administration.

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About Jim

James Salzman is the Donald Bren Distinguished Professor of Environmental Law with joint appointments at the UCLA School of Law and at the Bren School of the Environment …

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About Jim

James Salzman is the Donald Bren Distinguished Professor of Environmental Law with joint appointments at the UCLA School of Law and at the Bren School of the Environment …

READ more