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Executive Summary #1234es on Energy and Environment

November 13, 1998

BG1234ES:  Reforming the Endangered Species Act to ProtectSpecies and Property Rights

By

In October, Congress considered attaching the Endangered Species Recovery Act of 1997 (S. 1180) to the fiscal year 1999 omnibus appropriations bill. To the relief of private landowners and the future benefit of America's endangered species, Congress ultimately abandoned that proposal.

Although supporters of S. 1180, including the Clinton Administration, touted it as offering solutions for the problems with the Endangered
Species Act (ESA) originally enacted in 1973, it fell far short of that goal by not addressing its most serious flaws. For example, its non-specific definition of "harm" to a species allows the Department of the Interior to include any "habitat modification," even when there is no proof that such modifications would harm a particular species. The costly results of this interpretation were seen in California, when the government stopped the construction of a hospital because it found eight endangered desert sand flies on the property. The estimated cost to set aside the "habitat" for the fly? About $400,000 per fly.

The original intent of the ESA was to conserve and protect American species of plant and wildlife that are threatened with extinction. Species would be taken off the list when their numbers recovered. According to the Department of the Interior's Fish and Wildlife Service (FWS), during ESA's 25 years, over 1,154 animals and plants were listed as endangered or threatened; yet only 27 species have been removed from the list. Moreover, an analysis by the National Wilderness Institute shows that not one of those 27 species was removed because its improved numbers could be attributed to specific ESA activity. In fact, 7 of the 27 species were delisted because they were found to be extinct, and 16 because erroneous data had been used to justify their original listing.

On May 5, 1998, Secretary of the Interior Bruce Babbitt announced that another 33 endangered and threatened species were ready for delisting. He touted these delistings as proof that the ESA was working. The director of the FWS, Jamie Clark, later disputed that claim in a letter to Representative Richard Pombo (R-CA), who chairs the Endangered Species Task Force. Clark noted that she was embarrassed personally by his claim, which was an "unfortunate error." Clark also pointed out that Secretary Babbitt's list includes species the agency believes to be extinct.

Unfortunately, not only does the evidence fail to show that the current ESA recovers species; it also shows that the ESA negatively affects the species it hopes to protect as well as the people who could best assist in their preservation. How?

  • The ESA allows the federal government to prohibit landowners from modifying their property simply because the land could provide suitable habitat for an endangered species without supplying proof that such modifications indeed would "harm" the species;

  • The ESA allows the federal government to confiscate or regulate private property that has a listed species on it or that offers suitable habitat for endangered species without compensating the owners for the "taking" of their property as required by the Fifth Amendment of the U.S. Constitution.

  • The ESA fails to require agencies to use sound science in their decisions and to examine the economic consequences of their actions.

  • The ESA's negative incentives encourage private landowners to clear their land of endangered species and suitable habitat.

Numerous stories of financial loss have come to light that highlight the ESA's perverse incentives and costly effects. For example, in Oregon, a district judge issued a logging moratorium on privately held land when two spotted owls were found nesting about one mile from the 94-acre plot. It was not known if, in fact, the owls used the land. Such reported interpretations of the ESA persuade landowners to keep endangered species off their property and heighten the calls for Congress to reform the act.

To reform the ESA so that it fulfills the public's desire to protect endangered species and honors property rights as well, Congress should consider implementing changes that ensure:

  1. Its definition of "harm" means specific actions of a landowner that cause the death of or physical injury to a threatened species.

  2. Landowners are compensated for federal "takings" of property to protect species.

  3. Department of Interior agencies use sound, objective, and unbiased science and a rational examination of the economic consequences of federal action in their decision-making
    process.

  4. Incentives are designed to make landowners partners in the government's effort to save wildlife and plant species from extinction.

The government estimates that the cost of successfully recovering all of the species on the endangered species list could run more than $4.6 billion. Even this estimate is misleading, however, because it covers only recovery costs; that is, it does not include the money that would be spent on consulting with scientists and stakeholders, lost jobs, foregone wages, and the social costs connected with the recovery effort.

As Richard L. Stroup of the Political Economy Research Center observes,

[I]t is ironic that the Constitution explicitly forbids the U.S. Army, even in the name of national defense, from requiring that a citizen quarter a soldier (that is, provide food and shelter for a soldier). Yet the government can require the same citizens to quarter a grizzly bear, a spotted owl, or any other member of a threatened or endangered species, at the landowners expense.

Congress should reform the ESA so that private landowners and endangered species both benefit.

Alexander F. Annett is a Research Assistant in The Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

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