September 3, 2015

Feds give short shrift to state and private conservation in lesser prairie chicken listing

By Jonathan Wood Attorney

This week, a federal court in Texas ruled that the lesser prairie chicken was improperly listed as a threatened species after the Fish & Wildlife Service gave short shrift to state and private conservation efforts. The chicken threatened to wreak havoc on southwestern economies, particularly in the Permian Basin (a key area for natural gas and renewable energy development). In an attempt to avoid that result, five states jointly developed a range wide plan to conserve the species by incentivizing private, voluntary conservation efforts. In the first year of the plan alone, the species’ population has grown by about 20%, 40,000 acres of habitat have been conserved, and more than $45 million has been raised for recovery efforts.

In voiding the listing, the court explained that the Service heavily discounted these efforts by “assum[ing] that if a listing of the lesser prairie-chicken is precluded, much of the incentive for industry to enroll in the rangewide plan would be removed.” This assumption was contrary to the Service’s own regulations, which were setup to encourage this kind of conservation effort. Plus, the Service made this assumption without offering any sort of explanation for it.

The court’s decision is a welcome sign. State and private conservation efforts like this are a win-win. Not only are landowners far better off under them than under the Endangered Species Act’s incredibly burdensome approach. But species do better as well. As we explained in our amicus brief in the dunes sagebrush lizard case:

The Endangered Species Act’s approach imposes severe costs on landowners who leave their property in suitable condition to provide habitat for imperiled species. These severe costs discourage landowners from accommodating species and may undermine conservation and recovery. In addition to its perverse incentives, the statute fails to provide much encouragement for property owners to take affirmative steps to improve degraded habitat or recover species. These shortcomings are particularly problematic because most species rely on private property for the vast majority of their habitat.

State and private conservation efforts, on the other hand, can better balance the costs and benefits of species conservation and better promote the conservation and recovery of species.Extremely productive economic activity, that might otherwise be blocked by the Endangered Species Act’s onerous prohibitions, can go forward while marginal economic activity with severe environmental impacts is discouraged.

Since flexible state and private conservation effects can benefit species more than the Endangered Species Act’s command-and-control approach, landowners will not be the only ones feeling the pinch if [such efforts are discouraged]. Endangered and threatened species will suffer as well. They will, for instance, lose out on affirmative conservation and restoration efforts.

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