September 24, 2013

Bogus myths about the Endangered Species Act

By M. Reed Hopper Senior Attorney

Scientific American is slipping.  Last week the magazine published a post entitled The 5 Biggest Myths about the Endangered Species Act which relies on faulty logic and misinformation.

“Myth” #1: It doesn’t work
The first “myth” cited is that the ESA doesn’t work.  The author of the post quotes U.S. Rep. Cynthia Lummis (R–Wyo.) as saying, “We have a law where only 1 percent of the species that have been listed have actually been delisted. To me, that indicates a law that is failing in its ultimate goal, which is to list species, recover them and then delist them.”  In rebuttal the author acknowledges that only 26 species have recovered in the 40 year history of the act, but claims this is a success because “the vast majority of the plants and animals currently on the endangered species list are now stable and their populations are no longer in decline.”  Besides the fact that no authority is cited for this proposition, the problem with this logic is that a species’ population need not be in decline to be listed.  That’s one of the reasons why we are challenging the listing of the polar bear as a threatened species.  The U.S. Fish and Wildlife service listed the polar bear without showing any decline in the population which is the highest in recorded history.  The author’s logic is also faulty in assuming that any species that has stabilized after being listed has done so because of the listing instead of changing conditions on the ground from volunteer conservation efforts, changes in human population growth, or declines in predation or disease, which have nothing to do with the listing.

 

“Myth” #2: It will take away your land
The second so-called myth cited in the post is that the ESA will take away your land.  The author’s rebuttal of this “myth” is revealing because it relies entirely on the self-serving claims of the Fish and Wildlife Service that the “presence of a listed species on your land does not preclude projects or activities from happening on your land and does not grant access to your land by Federal employees.” This is so misleading it is hard to know where to begin.  We get calls all the time from landowners reporting that federal employees have “accessed” private land to observe activities that may affect listed species.  These landowners often receive a follow-up letter from the Fish and Wildlife Service “suggesting” that ongoing land use activities, like ordinary farming, building, or timber activity, “may” harm protected species and that continuing such activities “may” subject the landowner to severe civil penalties or even criminal prosecution.  The practical effect of such a “warning letter” is to preclude such activities on the land.  If the landowner seeks a permit for the activity, the application usually runs in the tens of thousands of dollars or the mitigation is so expensive that the landowner can’t afford to implement it and must abandon the activity.  In addition, when an area is designated “critical habitat” for a listed species the federal government effectively gains a veto power over any use of the land.  We currently represent a landowner in Louisiana whose property (over 1500 acres) was designated critical habitat which the service itself reports could cost the landowner $30 million in lost revenue.  But that’s not all.  The ESA has a citizen suit provision which allows anyone to sue a landowner over any activity which may harm a listed species.  The truth is that the ESA does something far worse than “take away your land.”  It often converts your land into a defacto federal preserve while sticking you with the bill.

“Myth” #3: It kills jobs
Once again, the author relies entirely on claims by the Fish and Wildlife Service.  No contrary source is cited.  According to the assistant director for endangered species, the ESA allows for both species protection and economic development.  This is nonsense.  When a species is listed it becomes illegal for anyone to harm that species without federal approval, which is often withheld or conditioned on exorbitant mitigation.  The ESA expressly prohibits the government from considering economic impacts when it lists a species as threatened or endangered.  The ESA is a favorite tool of environmentalists who employ it to stop development projects (and kill jobs) nationwide based on claims that the challenged development will harm listed species.

The agency is supposed to consider economic impacts when it designates critical habitat, but the Fish and Wildlife Service has interpreted that requirement so as to minimize the economic effects of its designation.  Some courts have held that this interpretation of the ESA has rendered the agency’s consideration of economic effects totally meaningless.  The whole purpose of designating critical habitat is to preserve the habitat, not to put it to productive economic use.  Even when the agency claims it is balancing species protections with economic interests, the agency tilts the scales toward species protections.  A federal judge made this point recently when he overturned the critical habitat designation for the polar bear in Alaska: “There is no question that the purpose behind the Service’s designation is admirable, for it is important to protect the polar bear, but such protection must be done correctly. In its current form, the critical habitat designation presents a disconnect between the twin goals of protecting a cherished resource and allowing for growth and much needed economic development. The current designation went too far and was too extensive.”

The author of the post seems unaware of this disconnect.  Instead he claims that “the ESA may require people or businesses to modify their behaviors in areas where threatened species live, but that ‘doesn’t mean that the wheels are going to come off of that economic engine,’ Frazer says. ‘We have almost 1,500 species listed in this country and we have a very healthy economy.’”

This flippant comment misses the point.  You don’t have to knock the wheels off the economy to kill jobs.  Anyone who is aware will recall the devastating loss of jobs due to the listing of the spotted owl in the pacific northwest.  Other listings and critical habitat designations have had similar effects, even if less severe.  Also, we don’t have “a very healthy economy.”  Just the opposite.  And polls show that when the economy is bad, or people see the direct effect of the ESA on their lives, support for the ESA dwindles. We saw this first hand when ESA protections for the silvery minnow threatened municipal water supplies in Albuquerque, NM.

“Myth” # 4: Conservation groups and biologists just want money
This is an interesting choice as this accusation is often leveled at us because PLF fights for property rights and free enterprise.  According to the post, wildlife biologists and nonprofit lawyers are not in it for the money because they get paid much less than their corporate counterparts.  The post even cites a Texas study that shows nonprofit lawyers earn only about half of what for profit attorneys earn.  Therefore, the author of the post concludes that environmental groups that sue under the ESA are clearly not on “a path to riches.”  It is heartwarming to get the author’s endorsement for our altruism at PLF.  As nonprofit attorneys we are hardly on the path to riches either.  I figure my own earnings are about a third of what a  for profit attorney would earn with similar experience.

But even though environmental attorneys may not be laughing all the way to the bank individually, it cannot be denied that there is Big Money in Big Green.  Just plug in your favorite environmental group at CharityNavigator.org and get a look at those incomes.  In 2011, NRDC had contributions of more than $90 million.  The Sierra Club Foundation had contributions of over $45 million while the Environmental Defense Fund came in at $110 million.  In contrast, PLF had contributions around $13 million.  So much for PLF being funded by Big Business.  Another myth busted!

“Myth” #5: It’s an international plot
This is not a myth about the ESA at all but a diatribe about Tea Party activists and Agenda 21.  It does not deserve a response but it does show the author’s bias in selecting what he considers the most outlandish criticisms about the ESA instead of addressing the real weaknesses in the Act which I address in my 2005 congressional testimony here.

What to read next