The Endangered Species Act
A conservation essay by Harry Noyes
World Conservation Union researchers
have found that over 11,000 species of plants and animals are on the verge of
extinction, including a fourth of all mammals, an eighth of all birds, and a
sixth of all conifers. "We were scared by our own results," said the WCU's director general. Most threatened countries include
the U.S., Indonesia, India, Brazil, China and Malaysia.
Many scientists call what is
happening now “the Sixth Extinction,” meaning that we are witnessing the sixth
mass extinction of species in the history of our planet, with expectations that
one third to one half of all the species that were living on Earth in 1950 will
be wiped off the face of the planet by 2050. There are differences among
scientists as to the percentage and the date, but the gist of the threat is
undisputed. (For more, see the essay in our library section entitled “Endangered
species and why they matter.”)
Many of the species lost will be
small ones and living in limited areas, and the average person will not notice
they are gone. But that average person may die as a result of such an
extinction, because the dead species may be the one the one whose body chemistry
included a drug to cure a fatal human disease. This is not a hypothetical
scenario. The bulk of successful drugs come from plants and an increasing
number come from animals (including highly endangered amphibians and coral-reef
creatures). The lifesaving drug taxol was originally
derived from a highly endangered
But plants and animals do more than
offer medicines and other human products. They and their habitats (wetlands,
coral reefs, riparian zones) provide ecological services that humans cannot
live without. Birds, bats and insects control pest species, pollinate numerous
plant species (including key human crops), and spread seeds. Wetlands and reefs
limit flooding, and the former help to purify water. Minerals vital to human
physiology are distributed where they are needed by complex life cycles that we
are only beginning to understand. And there are doubtless other services
provided by nature’s creatures that we do not yet even know about.
Many scientists say that loss of
biodiversity through rapid extinction – estimates are that 50-150 species are
becoming extinct every DAY, against a normal background rate of perhaps 1
species per year – is in fact the greatest threat to human survival today,
vastly more important than global warming or pollution (except to the degree
that warming and pollution cause extinctions).
Yet there is a fanatical hostility
in the U.S. towards the Endangered Species Act among those who value money
above all other things and who believe that the ESA has cost or is costing or
just might cost them a dollar or two sometime. In their zeal, these people
harbor – and spread – numerous falsehoods about the ESA.
The purpose of this essay is not to
argue that the ESA is perfect, to deny that it can be improved, or to dispute
the value of voluntary measures and positive incentives. All of these points
are conceded by conservationists and many of the voluntary and incentive
programs now in use have been developed by and are funded by conservation
groups. The purpose of this essay is to correct the falsehoods about the ESA,
so that “improvements” can be focused on things that actually need improving.
Another purpose is to issue a caution: those who use the falsehoods to
undermine the Act are, with rare exceptions, not actually the least bit
interested in making the ESA better. Their goal is to destroy it in toto.
It is strongly recommended that
anyone who believes in protecting species but has fallen for the false
allegations that the ESA is an oppressive bureaucratic nightmare should do some
research before speaking up. That research should include (1) actually reading
the ESA and/or official
The truth is that it always seems to
turn out that the horror stories are bogus.
For example, you will hear about a
poor Vietnamese immigrant farmer who was pulled off his tractor and hauled off
to jail and threatened with $600,000 in fines by USFWS stormtroopers
because he accidentally ran over a kangaroo rat. The truth is that the owner of
the “farm” was a rich Chinese industrialist. He bought the land and hired
others to farm it despite being told it was totally unsuited for agriculture.
He or his employees were warned by the USFWS that the land harbored an
endangered species of kangaroo rats and that harming the rats would be a crime.
They went ahead with plowing and killed a number of kangaroo rats. Only then
did the USFWS act. No one was arrested and the owner settled the case with a
$5,000 donation to a conservation program.
My own Congressman used to send out a blatantly bogus information sheet citing a poor old lady whose finances were supposedly devastated by the ESA. “My land lost $800,000 in value,” she told a Congressional committee. “To use the land, I need a permit, but I cannot afford it because my property taxes keep going up!” First, don’t we all wish our property taxes would go in reverse to our property values! Second, most landowners can get an assessment from the USFWS for nothing and, if an incidental-take permit is needed, the fee runs about a $100. Developers of complex projects may need to hire consultants to develop an acceptable plan, but whatever that cost -- $10,000, $25,000 or $50,000 would seem to be high-side figures unless you were really trying to develop somewhere you shouldn’t – wouldn’t you pay it in a heartbeat to recover $800,000 in value? Wouldn’t a banker loan you the money? Wouldn’t any serious buyer offer the $800,000 back discounted for the cost of a study? Of course, all these things would be true…in every world except the feverish Cloudcuckooland of the anti-ESA crowd.
One of the most common
misunderstandings about the ESA is the notion that designation of critical habitat
gives the government broad powers over the use of land so designated. Critical
habitat designations do only one thing: force FEDERAL agencies to consult with
Fish and Wildlife Service before any FEDERAL action that might harm habitat. In
the end, some 98 percent of all projects are approved unchanged and most of the
rest proceed with minor modifications.
Critical habitat has NO effect on
private landowners unless they want to
do something that requires a federal
permit (e.g., filling a wetland) or
federal financing.
This doesn't mean the ESA has no
effect on private landowners, of course.
The law itself prohibits taking an
endangered species (harming the
animal/plant or its ACTUAL
habitats), but that ban is not modified in any
way by designation of critical
habitat (which is a large geographical
area that contains various parcels
of actual habitat but also contains a
lot of land that is not habitat for
the endangered species and which can
therefore be developed without any
special permit...thus the 98 percent
of federal projects that proceed
unchanged). Unlike the feds, private
landowners need not even consult
with Fish and Wildlife Service unless
their land includes actual habitat.
One reason this misunderstanding is
so widespread is that the media has done a very bad job of covering the ESA. In
the
Unfortunately, there are some cases
where overzealous and badly informed USFWS officers burden citizens with bad
interpretations of the ESA.
An example is a case where the USFWS
reportedly told a cattleman he could no longer run cows on his ranch because it
had an endangered bird on it. That was a bad interpretation of the law. If the
ranch has long had cattle and the bird is there, then clearly the cattle do not
cause a problem for the birds and are a lawful use of the land. It turns out
this rancher won his case in court. In another case, two USFWS people with no
bird expertise told a gathering of local officials that they could not cut ash
juniper to improve water supplies because endangered Golden-Cheeked Warblers
need ash juniper habitat. This was ignorance by the USFWS people: only certain
specific stands of ash juniper (on hillsides) are critical to the warblers (for
nest material) and most ash juniper can be cut with no harm done.
In both cases the USFWS overstepped
and needlessly created enemies for their own agency and the ESA.
As written, the law is eminently
reasonable, but it can be made harmful by bad interpretation, just as
reasonable laws against murder can be made unjust by crooked cops who fabricate evidence against
innocent defendants.
The difference is that nobody ever
says, "That cop arrested the wrong
guy. Let's abolish the law against
murder." Yet people do not hesitate to demand, "That USFWS guy got
snippy with me. Let's abolish the ESA."
We need to get people to the stage
where they say, "Hey, don't get snippy with me, Mr. USFWS...I know my
rights and you're violating them...keep it up
and I'll get you fired so somebody who understands the ESA can come in
here and do the job right."
Another common argument against the
ESA has been: “What good is it?” Very few species have been recovered and delisted, this reasoning goes, therefore it is a failure
and should be abolished (note: they never suggest this is a good reason to
strengthen it!).
Aside from resembling an argument
for abolishing murder laws because murders happen anyway, this is a bogus
argument on several grounds:
(1) While few species have been
recovered enough to delist, many (such as red wolves
and the California condor) have been saved from sure extinction and thus have the
potential to recover someday. Almost half of listed species have improved or
stabilized their population levels.
(2) The main reason so few have been
recovered is because we have been to cheap to spend the necessary money to list
all the needy species, much less do the actual recovery work on the ground. (In
the mid-90s it was reported that the federal budget for recovery of endangered
species was $35 million, versus $1.5 BILLION spent by Americans that year for
hot buttered popcorn in theaters!)