Can Federalism’s Flexibility Recover Endangered Species?

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Friday, September 29, 2017


Utah prairie dog. Courtesy of James Marvin Phelps.

The federal Endangered Species Act has generated a lot of conflict over the last 44 years, but has little to show for it. The recovery rate for listed species is less than 2%. And there’s strong evidence that the burdens imposed on private property lead people to preemptively destroy habitat before they can be imposed. The ESA creates lots of work for lawyers and bureaucrats, but measured by the criteria it announces as the goal—recovering species—it hasn’t worked.

Unfortunately, change at the federal level is extremely difficult. Any proposed reform is opposed by special interest groups and tarred with overheated rhetoric that makes real dialogue impossible. That’s true, by the way, regardless of who proposes reform. You might expect left-leaning environmental groups to oppose Republican proposed reforms. But they were just as savage when President Obama’s agencies proposed modest reforms to the listing process, to improve scientific data and increase cooperation with states.

Federal gridlock is not a new or unexpected development, of course. The Founding Fathers limited the federal government’s power and made it difficult to enact federal legislation in a conscious attempt to restrain the growth of government. Most policy issues, they believed, should be developed at the state and local level, which have greater flexibility, more direct accountability to the people, and, as a consequence, are granted more power.

Perhaps the best way to reform how we recover wildlife is to return to the Constitution’s original design of federalism. That’s one aim of the petition that People for the Ethical Treatment of Property Owners recently filed with the Supreme Court, asking it to review the constitutionality of a federal regulations that forbids state biologists from taking steps to recover the Utah prairie dog. After a federal court agreed with them and struck down the regulation, the state developed a conservation plan that worked better for both people and prairie dogs. Their petition seeks to restore the state plan.

One benefit of a return to federalism is that different states can adopt different approaches to recovering species. Liberal Supreme Court Justice Louis Brandeis explained that states can serve as laboratories of democracy: a state “may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” If the federal government dictates policy, the consequences of it being wrong are felt nationwide.

And, because there’s nothing to compare the results of federal policy to, it can be difficult to say whether the policy works or not. In the Endangered Species Act context, for instance, who’s to say whether a 2% recovery rate is that bad without knowing what it would be under different approaches? But if each state sets its own policy, the results can be compared with those of other states. Over time, this will reveal which approaches work best.

States’ flexibility to experiment is also essential because the best approach to recover one species may not work for another. Allowing private property owners to grow herds of rare animals and sell hunting rights to them has been spectacularly successful for many game species, but probably won’t work for lichen. Some fish species may be so popular or valuable that private groups would voluntarily protect them, if the state established properly functioning water markets. Other species might require the state to create positive incentives for property owners to preserve or improve habitat. No one answer is likely to work for every species in every community across the country.

A return to federalism is more likely to produce these reforms because state and local officials are more directly accountable to the people. It should come as no surprise that, in the Utah prairie dog case, beltway bureaucrats allowed conflict to boil over for decades. Since they do not answer to the people affected by the regulation, they have fewer incentives to take the concerns seriously. But once the regulation was struck down, the state responded to those concerns. Rather than pitting people and prairie dogs against each other, state biologists worked with property owners to move prairie dogs from backyards, playgrounds, and other residential areas to public conservation lands.

The common objection to increasing the states’ role in protecting species is the fear that they won’t take the obligation seriously. There’s little evidence to support that narrative, most of it based on what states did before the environmental movement became the powerful political force that it is today. Given the popularity of recovering endangered species, it’s difficult to imagine any state or local politician would ignore the will of the voters.

Further undermining the claim of state indifference is that states have repeatedly taken great steps to protect species, often aided by private, voluntary conservation and market incentives. Utah’s efforts to protect the prairie dog are one example. Others include the efforts of states to protect sage grouse, prairie chickens, and many other species to avoid the costly and disruptive consequences of a federal listing.

These successful state experiments should become the norm, not the rare exception. But for that, federal regulations will first have to give way and allow us to return to the Constitution’s system of federalism. The Supreme Court could accomplish this in the Utah prairie dog case, or Congress could do so itself. Senators Mike Lee and Orrin Hatch of Utah have proposed a bill to return responsibility for most species back to the states. Either way, both people and species have a lot to gain from states’ increased flexibility and accountability.

This post originally appeared on FREEcology. All opinions are Wood's own and do not necessarily represent the views of the Pacific Legal Foundation

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