The endangered Endangered Species Act

The Endangered Species Act (ESA) was signed into law by President Richard Nixon in 1973. Since then, over a thousand species have been protected by the law including well known success stories like the bald eagle, the sea otter, and the green sea turtle. But now more than ever, the ESA seems embattled. The House has stepped-up a multi-pronged approach to gutting ESA protections in the last year, and the new President signed an order that halted the addition of the rusty-patched bumblebee to the protected list. In this moment, we remind ourselves why we need this law in the first place and reflect on modifications that could make the ESA more effective and less endangered itself.

Several foundations of environmental and resource economics spell bad news for nature (Ando 2011). The theory of negative externalities predicts that when something done by one actor has negative effects on others, the actor won’t take those negative effects into account and will tend to do more of the thing than is best from society’s point of view. The theory of the common pool resources like fisheries that are open to everyone predicts that such resources will be over-exploited. The theory of public goods – things like lighthouses and national defense that benefit everyone – predicts that they will be under-provided. So species like the red cockaded woodpecker and the Gulf sturgeon were endangered by too much logging and water use, species like the bison were almost hunted to extinction, and donations to conservation groups aren’t large enough to do as much conservation as would be best for society as a whole.

All species on the ESA’s endangered species list are protected from direct harm and from many forms of indirect harm through limits on habitat destruction. Some listed species are even the beneficiaries of active recovery plans including occasional captive breeding programs. Administrative innovations have allowed multi-species protection plans and tried to improve incentives for private landowners to make habitat suitable for endangered species on their own lands. Conservation groups view the ESA as a crown jewel in U.S. environmental laws.

However, the ESA is a very blunt tool. A species can’t be protected under the ESA unless it is in dire danger of extinction, and protections must stop once the species population recovers. But extinction threat is just a symptom of a problem with how people are using nature – developing too much land, taking too much water out of streams, and so forth. It would make more sense to control actions like land conversion and water use before problems get so bad that a species is on the brink of disappearance, and it would make sense to keep controlling those actions that degrade habitat even if a bad situation has been corrected so that a previously threatened species is now more numerous.

The ESA also explicitly forbids explicit triage in deciding which species to protect, but it might make sense to focus the ESA on species that are threatened because of factors we can actually do something about. For example, sometimes a species is technically threatened by hybridization – cross breeding with another closely-related species. In some cases that is caused by human actions that could be curbed, but in other cases it’s just evolution at work. The current Act gives the administrating agencies no official leeway to decide which cases are the most important targets for protection under the Act. Instead, costs and benefits are imperfectly and unofficially balanced as public pressure in the listing process influences how long it takes for species to make it to the list (Ando 1999).

The ESA has faced opposition nearly since its inception. That opposition surely stems from the fact that conservation isn’t free and the costs of conservation are borne by the people who live and do business near the species while the benefits of saving a species are enjoyed by the whole country. It cost the natural gas industry and ranchers real money, for example, to make enough changes to avoid broad ESA restrictions associated with listing the sage grouse. Further, the ESA is not well served by inevitable stories about how major economic activity is held up by a single silly species; e.g. farming in California limited by water conservation for the the delta smelt. In many cases like the delta smelt, spotted owl, and sage grouse, protecting that one endangered species saves an entire ecosystem and all the species and services that go with it. The benefits to society of that protection are enormous, and that full story is not told well by the single-species ESA narrative.

Nature surely needs more protection than would be provided without legal intervention. The ESA could be improved by including some principles of economics (Shogren et al. 1999), by improving incentives for conservation on private land, and possibly by implementing compensation for land users who bear the costs of conservation. The current political environment is not fertile ground for thoughtful revision of environmental law, so for now the best we can do is to hold on to the law as it currently exists. But the ferocity of the battle should motivate conservation scholars to think more seriously about revisions that would make the ESA more effective and less endangered.

Further reading:

  1. Shogren, J., J. Tschirhart, A. Ando, T. Anderson, S. Beissinger, D. Brookshire, G. Brown, Jr., D. Cash, D. Coursey, B. Gibbons, R. Innes, S. Meyer, and S. Polasky. 1999. “Why Economics Matters for Endangered Species Protection,” Conservation Biology 13(6): 1257 1261.
  2. Ando, A.W. 2003. “Do Interest Groups Compete? An Application to Endangered Species.” Public Choice 114(1-2): 137-159.
  3. Ando, A.W. 2001. “Economies of Scope in Endangered-Species Protection: Evidence from Interest-Group Behavior.” Journal of Environmental Economics and Management 4(3)1: 312-332.
  4. Ando, A.W. 1999. “Waiting to be Protected under the Endangered Species Act: The Political Economy of Regulatory Delay.” Journal of Law and Economics 42(1): 29-60.
  5. Ando, A.W. 2011. “Environmental and Resource Economics,” Chapter 8 in Sustainability: A Comprehensive Introduction. Eds. U. of I. Open Source Textbook Initiative. University of Illinois Board of Trustees. http://cnx.org/contents/F0Hv_Zza@43.5:HdWd2hN5@2/Foreword