2 years ago

Has the pit bull of environmental law been spayed?

By Jonathan Wood Attorney

The Endangered Species Act has often been called the “pit bull of environmental law” because “[i]t’s short, compact and has a hell of a set of teeth. Because of its teeth, the act can force people to make the kind of tough political decisions they wouldn’t normally make.” As we’ve regularly reported, it can impose burdensome (and unconstitutional) restrictions on private property owners, costly regulation of public projects (especially water projects), and threaten people with significant jail time for mere accidents.

Several recent articles tout a new study “dispelling” the “myth” that the Endangered Species Act is burdensome. The study was done by several employees of Defenders of Wildlife and it concludes that none of the 88,290 projects that have gone through formal consultation since 2008 have been kiboshed as a result of the Act. One of the authors asserts that this finding disproves:

[t]he claim … that this consultation process is essentially killing jobs, it’s ruining the economy, it’s stopping projects left and right … that the Section 7 process is very onerous to comply with.

Unfortunately, this statistic doesn’t prove that the Endangered Species Act isn’t burdensome. In fact, it doesn’t even disprove that Section 7 is a costly tax on the economy.

First, it’s important to point out what the authors of the study readily acknowledge: the study doesn’t purport to address the burdens of other Endangered Species Act requirements. In particular, it doesn’t say anything about the burdens that the take prohibition and critical habitat designations place on private property owners and other individuals. These are the most significant restrictions imposed under the statute. No evaluation of the statute’s burdens could be complete without addressing them.

Second, Section 7 itself can impose substantial costs on projects and society even if it doesn’t result in projects being stopped in their tracks. It adds costs and delays to every project subject to it by requiring them to undergo an additional bureaucratic process. It can lead to projects being preemptively modified so as to avoid being shut down through consultation. These modifications can make the projects more expensive or less effective. Though these costs are often unseen, they are nonetheless costs of Section 7.

For instance, one of the projects covered by the study is the operation of the water pumps that ship water from the bay delta to California’s central valley. Protections for the delta smelt substantially reduced the water flowing through these pumps. The water cutbacks have exacerbated the effects of the current drought, leading to fields being fallowed and poor, migrant farm workers being laid off. In some areas of the valley, unemployment hit as high as 50%!

Under the study, this isn’t treated as a significant impact of the Endangered Species Act because the pumps haven’t been completely and permanently shut off. That doesn’t seem like a very reasonable way to assess whether the statute kills jobs and hurts the economy, does it?

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