November 27, 2017

Endangered Species Act Bureaucrats Are Playing Word Games That Cost Billions Of Dollars

By Damien M. Schiff Senior Attorney

In the 44 years since the Endangered Species Act became law, federal officials have applied it to cover more than 2,000 plants and animals, spent billions of dollars in administering it and imposed tens of billions in economic costs by forcing vast areas of land out of productive use in the name of habitat protection.

Given these monumental impacts, one might think decision-making would be careful and scientifically rigorous. But it’s not. Quite the contrary: Endangered Species Act regulators have never even bothered to provide official definitions for their key criteria in adding plants and animals to the protected list.

Under the statute, the only populations that are eligible for listing are “species,” “subspecies,” or “distinct population segment[s].” But none of those is defined by the law, and the bureaucracy has never issued rules or even policy guidelines to clarify the first two.

In other words, they have scandalously failed in one of their fundamental responsibilities as scientists. The scientific method is about asking questions and offering answers in a measurable, testable way. This requires the very element that is too often lacking in federal Endangered Species Act regulations: the use of terms and concepts that are transparent and clearly defined, to allow for informed and objective review by the larger scientific community, the courts, Congress, and the public.

Is this failure really a product of negligence—or design?

A lack of clear standards certainly can be convenient for regulators who seek to expand their reach. Questionable listing decisions are common, seemingly based on arbitrary hunches, individual biases, or ideological agendas. To the casual observer, it can all look a lot like bureaucratic empire-building.

For instance, too often we see “regulating by zip code,” where regulators label a plant or animal as imperiled by singling out a narrow geographical area, instead of looking at its entire population.

Likewise, officials have concocted hairsplitting biological distinctions to put an animal or plant on the Endangered Species Act list even though, for all intents and purposes, it is indistinguishable from other populations that are perfectly healthy.

One example in the news right now: A four-inch bird called the California gnatcatcher. Because of the gnatcatcher’s listing as “threatened,” hundreds of thousands of acres in Southern California have been designated as “critical habitat,” triggering onerous land-use regulations that substantially impede homebuilding and other development.

This is no small factor in the region’s severe shortage of affordable housing.

Officials insist on keeping the California gnatcatcher on the Endangered Species Act list, even though new biological studies show it is part of a larger, thriving species that has a population of millions in Mexico.

Seeking to deter sham listings, Pacific Legal Foundation and a number of organizations devoted to property rights and sound science have formally petitioned Endangered Species Act officials to give their regulatory terms, at long last, some objective, agreed-upon meanings.

For “species,” the petition calls for adoption of the longstanding “biological species” concept, meaning, in essence, a naturally interbreeding population. For “subspecies,” the petition asks for adoption of a variant of the equally well-established “75% rule,” meaning that three-quarters of the individuals within the species as a whole can be assigned to a particular population by using two or more biological criteria.

In essence, the petition echoes the French philosopher Voltaire’s famous admonition: “Define your terms.”

“The changes we seek would lead to more effective environmental protection, with less regulatory overreach or economic harm,” said Bruce Colbert, executive director of the Property Owners Association of Riverside County, California, one of the petitioning organizations. “These new definitions would replace vagueness and arbitrariness with clarity and consistency, so listing decisions would be based on solid science. Resources would be used more efficiently, and land use restrictions would not be imposed where they are unneeded and unjustified.”

The government’s environmental scientists must start behaving more like real scientists and less like politicized bureaucrats. We all need to know—we all deserve to know—what they mean by the words they use.

Published by The Daily Caller

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Center for Environmental Science, Accuracy & Reliability, et al. v. U.S. Department of Interior, et al.

The federal government has expanded its reach using the Endangered Species Act to cover spurious “subspecies.” The ESA does not define “subspecies” and the Fish and Wildlife Service has offered no definition of its own. Instead, it simply announces when it has determined a “subspecies” to exist and, relying on the subspecies’ smaller numbers relative to the entire species, imposes onerous regulations. The California gnatcatcher was listed as a threatened subspecies, but a 2013 study shows that, at a DNA level, the songbird is not meaningfully distinct from millions of gnatcatchers dwelling in Baja California. PLF represents a coalition of property owners, developers, and scientists in a challenge to the continued listing of this thriving species.

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