The Endangered Species Act has become a gold mine for liberal activists and a barrier to our nation’s infrastructure. It is time for it to go. The Heartland Institute's Taylor Smith reports for the January issue of Townhall Magazine.
“The real wealth of the Nation,” Rachel Carson wrote in a letter to the editor of the Washington Post, “lies in the resources of the earth—soil, water, forests, minerals, and wildlife.”
That letter was published in 1953, about nine years before she published her seminal work, “Silent Spring,” a 400-page treatise on synthetic pesticides and their effect on wildlife, particularly birds. “Silent Spring” is largely credited for launching the modern environmental movement, a movement that greatly restructured the American political landscape, culminating in the passing of several major new pieces of environmental legislation in the 1970s and a whole new federal environmental agency to enforce them.
In her book, Carson argues the use of pesticides to kill crop-destroying insects is dangerous because the chemicals invariably accumulate, make their way up the food chain, and kill birds and fish. As the book’s title suggests, continuing such practices would lead to a future in which spring arrives and no birds can be heard singing, due to the devastation caused by pesticides, particularly DDT.
The book developed a widespread following both among the public and in Congress, which called for much greater federal involvement to protect wildlife. This is ironic because it was a federal agency, the U.S. Department of Agriculture, that had subsidized DDT-spraying programs all over the United States, leading to its abuse. To her credit, Carson was extremely critical of such federal programs, but she nonetheless supported an expanded government role for wildlife protection.
The Creation of the Endangered Species Act
In 1964, Carson got her wish. The Department of Interior appointed a new Committee on Rare and Endangered Wildlife Species. The Secretary of Interior at that time was Stewart Udall, a staunch supporter of Carson who became an environmental icon in his own right after his 1963 book, “The Quiet Crisis,” also became a bestseller.
Udall publicly requested Congress pass a bill allowing the DOI to buy land to protect endangered species habitats. After a fierce debate over states’ rights, Congress passed the Endangered Species Preservation Act, authorizing land acquisition to conserve “selected species of native fish and wildlife.” The bill also authorized the secretary of DOI to list such species as endangered, which he did in 1967.
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The law was amended in 1969 and subsequently renamed the Endangered Species Conservation Act of 1969. It extended protection to include species “threatened with worldwide extinction”and banned the interstate transport of listed species. The bill also added mollusks and crustaceans for protection.
That law would remain in effect for only four years. After such landmark environmental bills such as the Clean Air Act of 1970 and the Clean Water Act of 1972 were passed, President Nixon demanded the 93rd Congress revise the Endangered Species Conservation Act to increase protection further. Congress responded with the Endangered Species Act of 1973, a complete rewrite of the law.
The new law’s provisions included a repeal of the Endangered Species Conservation Act of 1969, and it enacted federal protection for all threatened species and subspecies. A species can be listed as “threatened” if it is believed to be under the threat of becoming endangered soon, and is listed as “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.”
The law also prohibits “takings” of listed species, and makes it an offense to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The Interior Department’s U.S. Fish and Wildlife Service and the Commerce Department’s National Marine Fisheries Service were charged with administering most of the law, but other federal agencies are also required to coordinate their actions to protect identified species.
Lack of Clarity, Immediate Problems
In his book “Noah’s Choice,” Paul Lenzini, head council for the International Association of Fish and Wildlife Agencies at that time, claims no one who voted for the Endangered Species Act had the “foggiest idea” of what they had voted for.
One possible reason that no one understood the law could be that no commercial interests testified against the bill. The law passed by overwhelming margins, 390-12 in the House and 92-0 in the Senate. Even the prominent conservative James Buckley, brother of William F. Buckley, voted for the most restrictive environmental law on the nation’s books.
As with the Affordable Care Act, only after the law was passed did Congress find out what was in it. This realization occurred when the snail darter, a two-inch fish, was discovered swimming in the Little Tennessee River, the site of the Tennessee Valley Authority’s proposed Tellico dam. In 1975, with the dam 70 percent complete and having already cost $50 million, the Fish and Wildlife Service received a petition to have the snail darter listed as endangered, which it approved.
Afterwards, Hiram Hill, a University of Tennessee law student, filed a lawsuit against the Tennessee Valley Authority claiming the project violated the Endangered Species Act. The case, Tennessee Valley Authority v. Hill et al., made it all the way to the U.S. Supreme Court. TVA counsel Griffin Bell challenged the Endangered Species Act by holding up a small glass jar, containing a single snail darter, and asked how a two-inch fish could be valued above the completion of a multimillion dollar dam.
In response, the plaintiffs argued the language of the law is clear and construction of the Tellico dam would destroy the snail darter’s habitat. The Court ruled 6-3 in favor of Hill et al. Chief Justice Warren Burger, in the majority opinion, affirmed the plaintiff’s’ argument by saying, “One would be hard pressed to find a statutory provision whose terms were any plainer than those in Section 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species or ‘result in the destruction or modification of habitat of such species.’”
Congress immediately sought legislation to rein in the law. Lynn Greenwalt, who served as director of the U.S. Fish and Wildlife from 1973 to 1980, reported, “During rounds of Congressional hearings, many witnesses from Congress came forward to say they did not know this new act could prevent everything. They thought they were voting for legislation to protect eagles, bears, and whooping cranes. They professed not to understand at the time of passage that this law might raise questions about irrigation projects, timber harvests, the dredging of ports, or the generation of electricity.”
Seeking an alternative strategy, Tennessee Sen. Howard Baker attached a “rider” to the Energy and Water Development Appropriation Bill that exempted the Tellico Dam from any federal laws prohibiting its construction. The dam was completed in November 1979. The nearby snail darter population did not survive, but through careful transplantations its population recovered enough for the Fish and Wildlife Service to downgrade the species’ status from “endangered” to “threatened.”
Good Intentions, Poor Results
Despite its recovery, the snail darter is still on the “threatened” list today. That underscores the ultimate failure of the law. Although Fish and Wildlife Service states the law’s “ultimate goal is to ‘recover’ species so they no longer need protection under ESA,” only 56 species have been delisted in the 40-year history of the law. Of those, 10 are extinct and 18 were mistakenly listed in the first place. Regarding the remaining 28, the government hasn’t presented any evidence showing the Endangered Species Act specifically led to their recovery.
Protecting each listed species also comes at significant cost. For example, the threatened desert tortoise received nearly $190 million in taxpayer support from 1996 to 2009, yet its population has increased only marginally.
The law is intend to protect endangered species by enforcing a $100,000 fine and/or one year prison sentence for harming a single listed species or even an unoccupied yet suitable habitat. Such severe punishment effectively turns any endangered species into a financial liability. The most publicized outcome of these distorted incentives is what landowners call the “Three S’s,” standing for “shoot, shovel, and shut up.” It refers to a landowner shooting an endangered species, using a shovel to bury the carcass, and shutting up about the incident for fear the federal government will find out.
Far more common than “shoot, shovel, and shut up,” however, is what is known as the “scorched earth” strategy. “Scorched earth” refers to landowners degrading their own land to the extent that it becomes unsuitable for endangered species habitat.
The ‘Scorched Earth’ Strategy
To understand such perverse incentives, consider the case of Ben Cone of North Carolina. Cone and his father had spent decades rehabilitating some 8,000 acres of land his father originally purchased in poor condition. The land was eventually upgraded enough to produce some ecological and financial value. Cone sold pine straw, fallen pine needles that can be useful mulch for landscapers. He also sold hunting licenses and allowed a small portion of his land’s trees to be harvested for timber.
Although the total income generated was not enough to completely offset the cost of managing the land, Cone was more interested in the value his land brought to wildlife and the nearby community than financial profit. He proved this by cutting only a selective amount of trees that didn’t disturb wildlife, and he did so on 70-80 year rotations rather than the industry norm of 30-40 years. Cone also allowed the local Boy Scouts to camp free of charge on his land and sold deer hunting licenses to the locals only to reduce the likelihood of trespassers hunting illegally on his land.
Cone’s environmental conscientiousness backfired, however, when in 1991 he discovered endangered red-cockaded woodpeckers on his land. As soon as the Fish and Wildlife Service found out, the agency strictly prohibited 1,121 acres—about 20 percent of Cone’s property, and worth about $1,425,000—from most commercial and personal uses. Adding insult to injury, the IRS later informed Cone his tax burden would not be reduced based on the reduced value of the land and he would still have to pay taxes at pre-prohibition rates. This was especially troubling for Cone, who had hoped to help his two sons avoid as much of the federal estate tax as possible. Cone had cut down numerous trees for the sole purpose of paying the tax after inheriting the land from his father.
Among the first actions Cone took to remedy this problem was notifying adjacent landowners of his predicament and asserting he would not be liable if red-cockaded woodpeckers inhabited their land. The result: those landowners clear-cut approximately 500 acres of nearby forest.
Cone followed with his own clear-cutting, speeding his 70-80 year rotation to a 40-year pace. Cone, who had always valued environmental sanctity over financial gain, was forced to clear-cut his forests in order to prevent woodpeckers from inhabiting any more of his land and to acquire the funds his heirs would need to pay the large estate tax bill that would assess his land at pre-woodpecker rates despite allowing only the financial resources of devalued, post-prohibition land. Despite the great financial losses Cone and other landowners like him suffered, the red-cockaded woodpecker has yet to recover and be removed from the endangered species list.
Environmentalists Stymie Reform
Despite the well-publicized harm the Endangered Species Act inflicts on the environment and on landowners, and the failure to remove species from endangerment, mainstream environmental groups largely oppose reform of the law. They fear any reform would jeopardize the law’s usefulness as a powerful litigation weapon they can readily use to halt major project development, seize property from private owners, convert it to public control, and to milk the federal government for taxpayer funds.
Perhaps the group taking the most advantage of the Endangered Species Act is the Center for Biological Diversity, which has cashed in on the broken law by inundating the Department of Interior with petitions to list several hundred additional species to the endangered list. After DOI fails to respond to each one within the statutory 90-day deadline, the Center gets to sue the Interior and collect attorney fees from the Justice Department.
Amos Eno, founding president of the conservation group Resources First Foundation, told High Country News the Center for Biological Diversity is “one of the reasons the Endangered Species Act has become so dysfunctional.”
Central to that dysfunction is the heavy burdens the law places on landowners. Some two-thirds of listed species depend on private land for habitat. By imposing pain with no possible gain, the law pits landowners against the very endangered species whose recovery requires their assistance.
Endangered Species Reserve Program
Landowners, and even some environmentalists, have been expressing increasing interest in fundamental reforms of the law. Analysts and policymakers have offered numerous proposals to repeal and replace the Endangered Species Act with a program that would reward landowners for saving endangered species instead of merely punishing them for developing land on which such species are found.
One such proposal, which already has proof of concept, is the Endangered Species Reserve Program, modeled on the successful Conservation Reserve Program administered by the U.S. Department of Agriculture. Proposed by Brian Seasholes, director of the Endangered Species Project at the Reason Foundation, the program would compensate landowners with annual payments in exchange for agreeing to sign 10-15 year contracts promising they will conserve endangered species habitat.
This is similar to the Conservation Reserve Program in which such contracts are used to incentivize landowners to address soil erosion and other natural resource-related concerns on environmentally-sensitive land. Contracts would be short, to accommodate changing ecological conditions and because landowners strongly dislike long-term agreements. The program, Seasholes argues, is proven, flexible, and simple, and most importantly, it would restore landowners’ constitutional right to “just compensation” and change endangered species’ status from financial liabilities to creatures of value.
After all, if Rachel Carson was right and wildlife truly is the “real Wealth of the Nation,” isn’t it about time a law recognized them for their value instead of turning them into financial catastrophes?
Taylor Smith is a policy analyst for the Government Relations Department at The Heartland Institute.
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