Volume 37, No.1, Summer 2018

PERC Reports: Summer 2018

The dusky gopher frog has been listed as endangered since 2001. © Scott Threlkeld / The Times-Picayune.

When the Endangered Species Act passed in 1973, few understood its ramifications. No one voted against the bill in the Senate, and only 12 representatives opposed it in the House. The bill encountered no organized opposition of any kind. It was barely covered in the national media.

But now, 45 years later, it’s hard to find a more controversial or more powerful environmental law. Depending on who you ask, the Endangered Species Act is either one of America’s greatest conservation successes or one of its most dismal failures. Its supporters point out that only 1 percent of the species listed under the act have gone extinct, while critics counter that less than 2 percent of listed species have recovered and been delisted. Regardless, no one would dispute the law’s potential to impose significant economic consequences and bring about costly litigation and political conflict.

Looking back, it seems that few anticipated the act’s powerful effects. Berkeley law professor Holly Doremus has written that “the birth of the law may have been too easy” given its broad impact today. “If legislators had thought more carefully about what they were doing,” she wrote in 2010, “they might not have passed a law with the same strength and scope.”

More importantly, while the law has certainly helped some species avoid extinction, it has not succeeded at the more difficult challenge of recovering those species once they become endangered. Instead, many species remain at the edge of extinction.

Reforming the act is the subject of much political debate today. Although reform in Congress has been elusive, later this year the Supreme Court will hear an endangered species case that could have far-reaching ramifications. As Tate Watkins describes, the nation’s highest court will soon weigh in on whether the federal government can designate areas that are unoccupied and unsuitable for a species as critical habitat for that species. It’s a question that could affect land-use decisions across the country and undermine efforts to recover species.

Likewise, the Department of the Interior has proposed modifying a blanket rule—adopted by the U.S. Fish and Wildlife Service several years after the Endangered Species Act was enacted—that effectively treats threatened and endangered species as one and the same. If implemented, the government would determine on a case-by-case basis the specific protections for species listed as threatened in the future.

As Jonathan Wood explains, restoring the Endangered Species Act’s original two-step listing process for threatened and endangered species could provide strong incentives to recover species. By relaxing regulatory burdens as species recover, the law would encourage private conservation efforts. It would also allow states to pursue innovative, market-based conservation programs that align the interests of private landowners and imperiled species.

This special issue of PERC Reports explores the challenges of species recovery—and how to provide incentives that can overcome those challenges. Doing so would enable us to achieve both of the law’s important goals: to prevent extinction and recover species. And that should be something we can all agree on.

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