An Alternative Perspective on the Endangered Species Act

As a registered Republican in the District of Columbia, I have some experience and a special concern for endangered species. My brief remarks tonight are best summarized as follows:

As you may know, the first general federal measure to protect endangered species was approved in 1966. That act authorized the Secretary of Interior to identify species of native fish and wildlife threatened with extinction and to purchase habitat for their protection and preservation, and directed all federal agencies to protect these species and preserve their habitats “insofar as is practicable and consistent with [the agencies] primary purposes.”

The 1969 act maintained the general structure of the 1966 act but expanded the authority to purchase land, broadened the potentially protected species to include invertebrates, and authorized the Secretary of Interior to list foreign species threatened with worldwide extinction and banned the importation of these species except for narrow scientific purposes. So far, so good. That was a law that we could live with.

The general structure of the law, however, was changed substantially by the Endangered Species Act of 1973, with minor amendments in later years. Two provisions of the 1973 act were probably desirable by themselves. The scope of protected organisms was broadened to include threatened species, endangered subspecies, and regional populations. And the limit on spending from the Land and Water Conservation Fund that could be used to purchase habitat was removed. These changes acknowledged that the choice of which organisms to protect and how much to spend to maintain their habitat are basically political decisions that should not be subject to arbitrary scientific or fiscal restraints.

Section 4 requires that species be listed “without reference to possible economic or other impacts.” In a 1978 case, the Supreme Court interpreted this language to conclude that “the value of endangered species is incalculable”, a listed species must be protected “whatever the cost”, and that the language of the act “admits no exception.” Such language, in effect, prevents a political decision about whether it is worthwhile to protect a specific organism.

Section 7 prohibits any action by a federal agency that would jeopardize a listed species or substantially modify its habitat. The most important of other federal activities, apparently, is subordinate to the interests of the least significant rat, roach, or weed on the endangered species list.

Section 9 states that no person may “take” a listed organism, where “to take” has been defined to include “acts to annoy it to such an extent as to significantly disrupt essential behavior patterns.” This section is outrageous in at least four dimensions:

• This section turns our constitutional protections against government taking of private property upside down. In effect, this section expropriates any listed organism and its habitat without any of the three constitutional tests of due process, public use, or just compensation. Any private action that interferes with this newly asserted government right, then, is considered a taking and the basis for a penalty.
• This section is grossly unjust, by imposing the cost of a national or global public good on the owners of specific properties, rather than some national tax base.
• The power to take private property without compensation leads to inflated demands by those most concerned about biodiversity, because the demand for increasing the list of endangered organisms is not limited by the value of alternative uses of federal revenues.
• This power leads to counterproductive behavior by the owners of private property, who have a strong motiive to destroy the habitat of organisms before they are listed or determined to be on their property.

Given these major sections of the Endangered Species Act of 1973, one should not be surprised that by its history of rapidly increasing costs and few apparent benefits. As with most regulations the costs to government, estimated at $290 million in 1992, are only the tip of the iceberg. The total cost of the recovery plan for a single species can run into billions. The accumulation of reports of the effects on individual property owners should be sufficient witness to the injustice of the distribution of the private costs.

Most of the political pressure to date has been to increase the protected list, and the Fish and Wildlife Service has responded at an accelerating rate–adding 26 species a year through 1989, 68 species a year from 1990 through 1993, and 72 in the first half of 1994. The Service is now considering 400 additional listings by October 1996.

By several measures, however, the benefits of this act are small. A total of 21 species have been removed from the protected list–7 were declared extinct, 12 due to incorrect listing, one due to the ban on DDT prior to the act, and one unexplained recovery. The status of those species on the protected list is no more encouraging. Of the 711 species on the protected list in September 1992, the status of 10 percent were improving, 28 percent were stable, 33 percent were declining, the status of 27 percent were unknown, and 2 percent were thought to be extinct. Less than 60 percent of the listed species had a recovery plan and of these, more than 80 percent had not achieved half of the objectives in their plan. One wonders what purpose is served by further additions to the protected list when the success rate has been so low to date. Faced by this same record, however, supporters of this act seem to conclude that “When at first you don’t succeed, redouble your effort.”

Federal endangered species legislation must be substantially restructured. Current law would lead to a progressive restriction on other federal activities and private land use, a spreading revolt of small property owners and local governments, and slower economic growth–without any reason to expect an improved record of protecting endangered species. The basic features of an Endangered Species Act that would be effective, efficient, just, and constitutional, I suggest, are the following:

• Return to the basic structure of the 1969 act or, at a minimum, deleting sections 4, 7, and 9 from the 1973 act.
• Broaden the Land and Water Conservation Fund to include any federal subsidies or purchase of easements to preserve wetlands and historic properties as well as the habitat for endangered species. The allocation of funds among these several objectives would be based on a periodic political decision. This would put several environmental constituencies in competition with each other to make the case to Congress and the administration to spend more for their specific objective.
• Endow this fund with the net federal revenues from offshore oil and gas leases, the Alaska Natural Wildlife Reserve, and the sale of federal land. This would give the environmental constituencies a stake in the economic value of these properties and encourage a reallocation of land from uses with low relative environmental values to uses with higher relative environmental values.

One effect of an Endangered Species Act with these basic features would be to restore the role of politics on the decisions about how much to spend on various environmental activities and on the balance between the protection of endangered species and other federal activities. These political decisions would be informed by scientific, economic, and moral considerations but would not be subordinate to any one of these dimensions. I am prepared to acknowledge that the value of protecting any one endangered species is incalculable but it is not infinite, so the institutional challenge is to structure and inform the political choice–not to replace it.

One other effect is to limit the demands per biodiversity by how much of other environmental values one is prepared to forego to protect a specific species. At present, the demands for additional listing are nominally limited only by five dubious scientific criteria but are effectively driven by the political pressure from environmental groups.

A most important third effect is to reward property owners for maintaining or creating habitat for endangered species rather than penalizing them for a failure to do so. This would transform the incentives of property owners from counterproductive behavior to cooperative behavior and eliminate the gross injustice of forcing them to pay most of the cost of a national public good.

In conclusion, as my remarks should have made clear, I value biodiversity but it is not my only value. The endangered species that I most value are men and women who have the freedom to choose among the several conditions they value. And our challenge is to design institutions and decision processes in which these choices are most compatible with the value of others.

Again, long live the endangered species act of 1969.

And I wish that I had a comparable solution to protect the threatened taxpayers and endangered Republicans in the District of Columbia.

Thank you for your attention.