7 months ago

How should one measure the Endangered Species Act's performance?

By Damien M. Schiff Senior Attorney

Property rights and other groups that seek reform of the Endangered Species Act oftentimes note that only a tiny fraction of the species that have been listed under the Act have recovered. Environmentalists typically respond that a recovery metric is not a good way to measure the Act’s performance. A good example of this defense, in adumbrated form, was recently made by Professor Eric Biber at LegalPlanet. Many species, he explains, are listed when they are on the verge of extinction. Yet the threats that have led to their imminent disappearance usually will take some time to mitigate. Hence, the Act may very well be “working” but we haven’t given it enough time to show its stuff.

In my view, there are at least three significant problems with this defense.

First, the Act has been on the books in substantially the same form for over four decades, and many species have been protected for twenty years or more. I suspect, however, that the recovery rates are not much higher for long-listed species than they are for recently listed ones. If the Act needs more time to work, shouldn’t we see substantially better recovery rates with long-listed species?

Second, a substantial number of species are listed as threatened, which status by definition means that a species is not in imminent danger of extinction. Such species do not implicate Professor Biber’s point about species being nearly extinct when listed and therefore requiring especially time-consuming efforts at recovery. Why, then, hasn’t the Act been more effective at recovery of threatened species?

Third, the Act itself provides the appropriate measure of its performance. Section 1(b) of the Act, entitled “Purposes,” says that the Act is intended “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Section 2(3) of the Act defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this [Act] are no longer necessary.” Hence, the Act clearly provides that its purpose is to improve the health of listed species to the point that they can be delisted. Even Professor Biber would acknowledge that the Act hasn’t achieved that goal.

I suspect that Professor Biber, and most environmentalists, would acknowledge, at least privately, that the Endangered Species Act needs improvement. Indeed, many otherwise vociferous defenders of the Act have conceded, for example, that the Act is not well-suited to addressing threats posed by climate change, and that its reliance on old-fashioned taxonomy (species, subspecies) as its principal conservation unit is passe. See Damien M. Schiff, The Endangered Species Act at 40: A Tale of Radicalization, Politicization, Bureaucratization, and Senescence, 37 Environs 104, 120-24 (2014). But “reform” efforts are assiduously opposed because they are perceived as insincere. In other words, critiques about the Act’s effectiveness, when pronounced by non-environmentalists, are dismissed as mere pretexts for seeking a substantial weakening of the Act’s regulatory burdens. Even if that were true, green groups should still remain open to suggestions from others. It may well be that there are ways to make the Act more “green-effective” while also making it more sensitive to property rights.

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