June 9, 2015

There are many ways to protect endangered species

By Jonathan Wood Attorney

If species aren’t protected under the Endangered Species Act’s burdensome approach, they’ll receive no protection at all. This is an all too common refrain. But it’s a false choice. There are many ways to try to conserve and recover species. The ESA’s punitive approach is not the only one, nor even the best one.

Take the Utah prairie dog. The incredibly burdensome federal regulations forbidding anyone from doing anything that affects this abundant rodent in southwestern Utah — even on their private property — were recently struck down as unconstitutional. Contrary to most people’s knee jerk assumption, the result of this decision is likely to be good for the species as well as the long-suffering members of People for the Ethical Treatment of Property Owners (the organization on whose behalf PLF brought the challenge). This is because the decision has opened the door to state experimentation to find a better way to protect the species. In that case, Utah has devised a plan to permanently protect the species by moving Utah prairie dogs from residential and developed neighborhoods (areas that can’t be a long term solution for the animals) to conservation areas on state and federal lands (which can).

In this respect, the Utah prairie dog case is not unique. PLF recently filed an amicus brief supporting the Fish and Wildlife Service’s decision not to list the Dunes sagebrush lizard under the ESA. The basis for that decision was that Texas and New Mexico had come up with their own plans to protect the species, plans which would provide better outcomes for both the lizard and affected property owners.

Alternatives to the ESA can achieve better outcomes in part because the ESA’s heavy-handed approach isn’t particularly effective. From our brief:

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 protection of species can also take advantage of the competition and experimentation that our Constitution’s protections for federalism enshrine:

Federalism is a core underpinning of the structure of American government. It secures individual liberty, political accountability, and promotes smarter, more efficient government through variation and experimentation. … State conservation efforts can be more beneficial to both the regulated public and species than the Endangered Species Act’s punitive one-size-fits-all approach. … [I]t allows for state and private experimentation that can help us find better, smarter ways to conserve and recover the species.

In the lizard’s case, the state plan focuses on reducing burdens for private property owners while encouraging them to take affirmative steps to improve the species’ habitat. These affirmative steps include removing no longer necessary infrastructure (which fractures the critters’ habitat) and stopping the spread of mesquite bushes (which degrade the habitat). Thankfully, the Service recognized in this case that the lizard is better off under the state plan than the ESA, which, due to its focus on stopping human activity, wouldn’t encourage those conservation efforts.

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