Originally published by The Hill, October 8, 2018.
The Endangered Species Act (ESA) is the nation’s most popular environmental law. In a time when Americans seemingly are divided on everything, there is nearly unanimous support for the goal of recovering rare species.
Unfortunately, that popularity has not translated into the political will to fund timely reviews of petitions to add or remove species from the endangered species list. Regardless of which party controls Congress or the White House, the federal agencies tasked with reviewing petitions have not had the resources to meet the law’s strict response deadlines.
The predictable result has been a significant backlog in petitions. Right now, more than 500 species petitions are pending before the U.S. Fish and Wildlife Service, which the agency estimates will take a decade to work through.
Facing a similar backlog, the Obama administration developed a process to prioritize petitions based on the degree of threats that species face, the quality of the science, and whether state and private conservation efforts are ongoing. That was an eminently reasonable response to this persistent problem.
This summer, Rep. Bruce Westerman (R-Ark.) introduced the PETITION Act to codify the Obama administration’s prioritization process. If enacted, the bill would ensure that federal agencies continue to follow this bipartisan approach and remove the threat that litigation will upend it.
It would be easy to claim that the backlog could be solved by simply throwing more money at the problem. But that is not politically feasible. Even the ESA’s most ardent supporters prioritize funding other conservation goals above more money for the bureaucracy.
Nor is it clear that more money alone would solve the problem. Reviewing petitions is expensive, with median costs approaching $140,000. And, unfortunately, the weakest petitions often are the most expensive to review, because substantial staff time is required to decipher petitions that may lack any clear logic. So more money may simply encourage more and weaker petitions.
This backlog problem is not unique to the ESA. And solutions from other contexts provide a way forward.
For decades, the Food and Drug Administration (FDA) struggled to keep up with new drug applications. These delays not only harmed pharmaceutical companies’ profits but also kept sick patients from accessing life-saving medications. So the FDA struck a deal with drug companies to cover the costs of reviewing applications in exchange for faster decisions.
Similarly, delays in reviewing endangered species petitions create real harms. For environmentalists, a delay may be the difference between protecting a species in time or losing it forever. And when a species has recovered, delaying its delisting may impose significant costs on industry or discourage other conservation efforts.
Within five years of the FDA’s reform, the agency increased its staff reviewing new drug applications by 77 percent and cut the median approval time in half. Initially skeptical of the idea, pharmaceutical companies now are its biggest champions. FDA still applies the same standards when approving or rejecting new drugs, but now it has the resources to do so in a reasonable time.
Borrowing from this example, Westerman recently amended the PETITION Act to give petitioners the option to fund reviews in exchange for an expedited decision. Earlier this year, I wrote a piece for the Property and Environment Research Center (PERC) explaining why environmentalists should seriously consider the benefits of this idea.
That the program is voluntary ensures that ordinary citizens will continue to enjoy a free right to participate in the petition process. But the reform recognizes that most petitions are submitted by well-funded organizations and industry.
If a species is facing a significant, immediate threat of extinction, this reform would allow environmentalists to avoid the backlog and get the agency’s immediate attention. Voluntarily bearing these costs would be a strong signal, not only that the species’ needs are urgent, but also that the petition is especially strong and backed by the best science.
If Exxon is willing to pay for a quick decision whether to delist a species that significantly affects its bottom line, isn’t it better that corporations bear these costs and not the public? Allowing Exxon to foot the bill leaves more public funding for the review of petitions submitted by ordinary Americans.
If petitions are decided based solely on the best science, as they would continue to be under the PETITION Act, this is a win-win. The voluntary funding proposal is an example of the creative thinking we need to modernize the 45-year-old Endangered Species Act so that it works better for people and species.