Yesterday, the Biden-Harris administration proposed three rule changes to the Endangered Species Act. The changes affect the regulation of threatened species, consultation between federal agencies, and the criteria used for designating critical habitat. U.S. Fish and Wildlife Service Director Martha Williams said the goal of the proposed rules was to “prevent the extinction of species and support their recovery,” ensuring the Endangered Species Act “works for both species and people.”
But at least one of the proposed rules will have the opposite effect. While many of the proposed changes are minor or technical, the biggest substantive change would undermine incentives for states and private landowners to recover species and, ultimately, harm the species it’s intended to protect. The Endangered Species Act provides stringent regulations for endangered species, as a last line of defense to protect them from extinction. But Congress chose not to impose these regulations for threatened species, which face more remote risks. Instead, it expected the Fish and Wildlife Service to craft creative, less burdensome rules that would encourage states and private landowners to recover these species.
For most of the Endangered Species Act’s history, however, the Service has applied a regulation, known as the “blanket” 4(d) rule, that automatically regulated both threatened and endangered species the same. Species did not fare well under that approach, with a mere 3% recovering over a half-century. In 2019, the Service rescinded this regulation and announced that it would craft tailored, less restrictive regulations for threatened species going forward. Doing so, the Service explained, would “incentivize conservation for both endangered species and threatened species.”
The Service now proposes to reverse this reform and go back to its prior policy of regulating endangered and threatened species the same. This would sacrifice conservation incentives for, at best, a little administrative convenience for the Service.
PERC Vice President of Law and Policy Jonathan Wood noted that “restoring the blanket rule would be a setback for species recovery. With two-thirds of endangered species located on private lands, the most effective way to increase the recovery rate for listed species is to improve the incentives for private landowners to restore habitat and perform proactive recovery efforts. This does the opposite.”
Ironically, the Biden administration itself has demonstrated that this proposed change would be a step backward for species. It has listed more than a dozen animals as threatened and considered whether endangered-level regulation or a more tailored approach would be best for each of those species. In every case, it has found a tailored approach better.
In the end, PERC believes that Endangered Species Act decisions should be guided by what’s best for species, including how decisions affect the incentives for states and private landowners to recover them. That means that regulations should relax as species recover, to reward states and landowners for their role in recovery, and become more stringent if a species declines.
To learn more about what can be done to improve the endangered species act so that it not only prevents extinctions but also succeeds in recovering imperiled species, explore the links below.
