New Endangered Species Act regulations will improve the statute's implementation

September 29, 2016 | By JONATHAN WOOD

This week, the Fish and Wildlife Service finalized its proposed regulations to reform the Endangered Species Act petition process. The regulation incorporates several important reforms and is a welcome sign for all of us who care about protecting species and avoiding unnecessary litigation and regulation. PLF filed comments on the proposed rule supporting the reforms that made it into the final rule.

First, the regulation provides that petitioners must submit independent petitions for each species. This reform was necessary to end the practice by special interest groups of filing huge, unclear petitions calling for the listing of hundreds of species at a time based on generic claims. These severely tax the Service, because it has to try to piece together whether the petition justifies the listing of each species mentioned. This practice literally overwhelmed the Service several years ago, forcing it to agree to a settlement that let environmental groups dictate priorities as it tried to catch up. Now that the Service has finally got its head above water again, the groups have resumed the practice by filing several massive petitions. The final regulation will finally put an end to this abusive practice.

Second, the regulation requires petitioners to give states notice before filing their petition. This is key because states have primary responsibility for protecting wildlife within their borders. Increasingly, the Service has been relying on innovative state conservation programs as an alternative to list politically controversial listings. This reform will make it much easier for states to take advantage of this opportunity by giving them the time they need to develop their own conservation strategies.

Fixing the petition process is essential for several reasons. First, species that are improperly listed deplete resources that would otherwise go to recovering species actually in need. Consider, for instance, that nearly as many species have been delisted because they never should have been listed in the first place as have recovered. Second, reducing the number of taxing, poorly thought out petitions will allow the Service to focus on those which concern species actually deserving to be listed.

Although this regulation is a positive step, it’s a relatively small one. Many of the most significant problems with the endangered species act–including its unconstitutionality, its effect on overcriminalization, and its low success rate relative to its impacts on property owners–will continue.