The Endangered Species Act: Standing in Harm’s Way

The Endangered Species Act of 1973, which was passed by overwhelming bipartisan majorities in both houses of Congress and signed into law by President Richard Nixon, is one of this nation’s most significant environmental laws. It sought to responsibly address more than a century of wanton disregard for wildlife and wildlife habitat.

In Nixon’s 1970 State of the Union address, he challenged America to do better, saying:

“The great question of the seventies is, shall we surrender to our surroundings, or shall we make our peace with nature and begin to make reparations for the damage we have done to our air, to our land, and to our water?”

Three years later, in announcing his signing of the Endangered Species Act, Nixon said:

“Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans.”

The Endangered Species Act, despite its noble purpose, is a law that has become a flashpoint of debate over property rights and a frequent target of criticism by some vociferous property rights advocates. Such criticism recently culminated with the hasty passage of H.R. 3824 (Threatened and Endangered Species Recovery Act of 2005) in the House of Representatives. Regardless of its benign-sounding title, this bill is designed specifically to weaken many key provisions of the ESA.

Claims that the Endangered Species Act presents a serious threat to private property own- ers and impedes economic growth are simply unfounded. Most are based on a few anecdotal cases where the truth has been greatly exag- gerated. Both government and independent studies of the ESA have shown it rarely stops development projects and has no measurable adverse impact on economic health.

Essential to any meaningful discussion of the Endangered Species Act is an understanding of the historical need for such legislation. Prior to 1973, many important species were being driven to extinction. Bison had been hunted to very low numbers. The wholesale extermination of wolves in the lower 48, which was often government sanctioned, had driven them to the brink. Grizzly bears in the lower 48 were hunted almost out of existence. The Passenger Pigeon, whose huge flocks numbered in the billions and darkened skies east of the Mississippi River during the early 19th century, was wiped out in toto.

The Bald Eagle, the very symbol of America’s freedom and strength, was almost driven to extinction due to habitat loss, widespread use of the pesticide DDT, collisions with power lines, shooting and intentional poisoning. Prior to passage of the Endangered Species Act, the number of Bald Eagle breeding pairs in the lower 48 States had dropped below 500. Today, habitat protection under the Act and a ban on DDT has resulted in a population of more than 6,000 breeding pairs in the lower 48 States.

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PROPERTY RIGHTS

Private property rights and land ownership have been an essential component of American democracy and capitalism since the nation’s founding. While critics of the ESA are almost exclusively focused on land ownership, it is worth noting that the Founding Fathers understood property rights as a broad and complex issue that extended beyond land and material possessions.

James Madison, the father of the Constitution, contended that the “larger and juster” meaning of property rights includes “every thing to which a man may attach a value and have a right,” including opinions, religious beliefs and conscience. Madison warned, however, against absolutes. Where there are either excesses of liberty or power, he wrote, “No man is safe in his opinions, his person, his faculties, or his possessions.”

Madison clearly believed in a balance between government authority and individual liberty. Conservative thought has long recognized that the imperfect nature of mankind requires such balance and makes laws necessary. If laws are needed to ensure that personal and property rights are respected, it stands to reason that the same are needed to ensure the protection of common assets from the excesses that Madison warned against.

Environmental protection provides one of the most compelling cases for the exercise of government authority in protecting the common good. Neither the water we drink nor the air we breathe recognizes property lines; air and water pollution caused by one property owner will likely harm the property and rights of others living downwind or downstream.

The argument is equally compelling with respect to wildlife and their habitat. The establishment of ownership boundaries does not change the habitat requirements needed for either flora or fauna to survive. History is, unfortunately, replete with examples of large-scale habitat and wildlife destruction that resulted from mankind being left unfettered to pursue economic self-interest, at the expense of wildlife, a vital common asset.

It is that history of environmental destruction that necessitated most of the nation’s environmental laws, including the Endangered Species Act. Just as the federal government is the obvious entity to provide for the com- mon defense and to ensure the protection of interstate commerce, it is also the obvious entity to ensure the responsible stewardship of natural systems and resources that exist irrespective of boundaries and that sustain all of the nation’s citizens.

Critics of the Endangered Species Act contend that private landowners should be financially compensated for any requirements under the Act that limit the use or development of their land. Under that same logic, the government would have to reimburse industrial polluters for the financial impacts of pollution limits.

Adopting such a broad and liberal interpretation of the Fifth Amendment “takings” clause would create a massive entitlement program that pays people to act responsibly and obey the law, weakening the civil compact that lies at the heart of constitutional government.

Private property rights have never existed in a vacuum, and this is particularly true of land ownership. Property values are constantly affected by decisions beyond the control of the landowner. Road building, zoning ordinances, public purchase of open space, the proximity of businesses, the location of utilities, and neighbors’ decisions all change property values either positively or negatively.

Any policy that would compensate private landowners for potential lost value or delayed profits would face the daunting question of how to honestly assess “just compensation.” Taxpayer fairness would dictate that the compensation not include that portion of the property’s value that has resulted from tax- payer funded infrastructure or other assets.

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MEASURING SUCCESS

Opponents of the Endangered Species Act, including those purporting to “reform” it through passage of H.R. 3824, charge that the Act has been ineffective. The criterion used to justify this claim is the number of listed species that have recovered to the point of being either delisted or downlisted from endangered to threatened.

Such recovery numbers overlook the Act’s success at preventing the extinction of species. While complete recovery is the ultimate goal, stabilizing or improving population numbers is a vital first step on the road to recovery. Studies suggest that without the Endangered Species Act, at least 192 additional species would have likely become extinct.

It is truly ironic that the daunting challenge of achieving the complete recovery of listed species is being used to make a case for weakening several key provisions of the Act. Such data presents a far more compelling case to further strengthen the Act. Anyone who has worked extensively to protect endangered species habitat from development projects or pollution impacts has witnessed the Act’s clear intent being subordinated to short-term economic interests.

Regardless of where one chooses to strike a balance between species preservation and economic activity, any discussion of improving the Endangered Species Act must look at where that balance is. This means evaluating the amount of listed species’ habitat lost to development. This should include a review of the Fish and Wildlife Service’s determinations under Section 7, where the presence of a listed species is noted, but the reviewed projects are almost always allowed to proceed.

Failures to properly administer the Act do not necessarily equate to problems with the Act itself. Because there is little dispute that the Act has been chronically under-funded, any evaluation of the Act’s success must also determine the impact of funding shortfalls on the U.S. Fish and Wildlife Service’s ability to properly carry out the Act.

Despite these problems, there are a number of real success stories. The Gray Wolf, for example has recovered from a lower 48 State population of 750 in 1970 to more than 4,800 today. This includes healthy populations in Idaho and the Greater Yellowstone area where wolves had been extirpated.

Other success stories include the Bald Eagle, Peregrine Falcon, Grizzly Bear, Bison and American Alligator.

One common criticism of the Endangered Species Act is that its critical habitat provisions provoke private landowners to avoid development restrictions by destroying listed species found on their property. This phenomenon, referred to as “shoot, shovel and shut up,” is often cited as the reason for eliminating the critical habitat provisions and providing landowners with financial compensation for habitat protection.

There is nothing conservative about a logic suggesting that any time someone breaks the law or shirks personal responsibility that taxpayers should pay them to comply. Such a policy not only rewards lawless behavior, it stands to disproportionately benefit those who are primarily motivated by greed and self-interest.

There are legitimate tools to help private landowners obey the law and act responsibly. A wide array of federal, state and private programs offers financial and technical assistance to landowners who voluntarily conserve habitat. Other tools, such as the Safe Harbor agreement concept promoted by Environmental Defense, can provide assurances against incidental take penalties and regulatory creep.