Background:  In 1973, Congress passed the Endangered Species Act. After more than 30 years of the government “taking” private property deemed “critical habitats” without providing just compensation, only 10 of the nearly 1,300 species that have been listed have been recovered —a success rate of less than one percent.

Status:    Recently, the House of Representatives passed an overhaul of ESA, entitled the Threatened and Endangered Species Recovery Act of 2005 (H.R. 3824), introduced by House Resources Committee Chairman Richard Pombo (R-CA), that creates incentives for landowners to participate in conservation and clears up the vague classifications that put private property at risk. The act would strengthen the scientific standards used to make species’ status distinctions and would make public information that was previously unavailable.

Discussion:  It should not be surprising that ESA has failed to recover species. For the last 30 years, unintended consequences of the act have pitted landowners against the very species ESA was designed to protect. TESRA is an attempt to remedy this. By eliminating ESA’s “critical habitat” provision, environmental stewardship would be rewarded and species conservation promoted.

TESRA also takes steps to reduce the costly litigation that has ensued under ESA and will ease the regulatory barriers that block state and local approaches to conservation. Within 180 days, property owners would be able to receive notification of whether or not particular land use would violate ESA. An administrative appeals process would be introduced to promote mediation of issues before allowing for the court suits to be filed, reducing litigation. In addition to this, landowners would be compensated for the fair market value of any lost uses of their properties.

Action item:  The Senate should move quickly to adopt reform of ESA. Because of the critical relationship between endangered species – nearly 80 percent of which are found on private property – and landowners, a regulatory approach should be abandoned and more effort must be directed towards creating conservation incentives for landowners. The House bill is a step in the right direction, although there are some improvements that the Senate could make. Among these, it should consider redefining “harm” which currently – and ambiguously - includes any modification to land which results in the damage of a species regardless of intention. Any language that Congress adopts in any measures intended to protect endangered species should be respective not only of endangered wildlife but of property rights. 

This brief was prepared by Heritage Research Assistant Nancy Marano.

The "Regulation In Brief" is produced regularly by The Heritage Foundation, providing concise summaries of key regulatory issues, along with links to key background material on each issue.

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