Commentary: Improved ESA would work better for species, people

Issue Date: August 1, 2018
By Jack Rice and Erin Huston
The Endangered Species Act doesn't work well for protected species such as the northern spotted owl, and it hasn't worked well for resource managers such as farmers and ranchers. Now, there's an opportunity for meaningful improvements in the act.
Photo/U.S. Fish and Wildlife Service

Congress and the Trump administration are considering ways to improve the federal Endangered Species Act—and the greatest opportunity to improve it in a long time may come from legislation in the U.S. Senate. To explain why, we need to go back to 1973.

In 1973, Congress passed the ESA with only four votes against the bill. President Nixon quickly signed the bill into law, stating the ESA "provides the federal government with needed authority to protect an irreplaceable part of our national heritage—threatened wildlife."

Just a few years after this remarkable bipartisanship, the U.S. Supreme Court decided TVA v. Hill in 1978, with three justices dissenting from the majority. Holding that the "plain intent of Congress in enacting the Endangered Species Act of 1973 was to halt and reverse the trend towards species extinction, whatever the cost," the court clarified just how powerful the ESA would become. So began the ESA's legacy of litigation.

The split decision in TVA v. Hill showed clearly that the unanimity of 1973 had quickly evaporated by the time the Supreme Court decided just five years later that species protection was priceless. From that day to this, the ESA has gained in power—and lawsuits have gained in frequency.

In the 1990s, the spotted owl brought the timber industry to its knees. In the 2000s, salmon and delta smelt shut down major water projects in the Klamath Basin and the Central Valley. The conflicts continue to expand today, threatening Columbia River dams and impacting issues as distinct as the National Flood Insurance Program.

So, after 45 years, just how well is the ESA working?

It doesn't work very well for the species, at least if you use recovery as the standard. Of the more than 2,300 species listed under the ESA, only about 2 percent have been recovered.

It also doesn't work very well for resource managers such as farmers and water users. New listings and lawsuits continually threaten farmers with greater burdens and costs.

About the only group the ESA does work well for are the "combat conservationists" who depend on a steady stream of fights and lawsuits that fund and justify their existence. Unfortunately, this last group, which largely shapes ESA implementation, appears much more consumed with conflict than conservation.

So how does the omnipresent environmental conflict of today reconcile with the broad support for ESA of 1973? To help understand this, we must consider three observations about 21st century conservation.

First, just like in 1973, nearly everyone, including farmers and ranchers, wants to prevent species from going extinct. The essential objective of the ESA will not be changed, and this is not the problem. The issues aren't with the goal of the ESA but rather with the four decades of conflict that has shaped how it is implemented.

Second, the ESA is not working to protect species. Everyone, including agencies and conservation groups, must recognize there is a better way. Even with the many layers of species protections that have harmed the vitality of numerous rural communities, the spotted owl, delta smelt and salmon are not recovering.

Third, people are starting to think differently about conservation. In the 1970s, the prevailing conservation paradigm was that the way to "fix" the environment was to force people to undo whatever people did to mess it up. Now, it is becoming clear that trying to go back in time is not the answer. Instead, we should work collaboratively to manage working lands for better environmental conditions.

With these observations in mind, we turn back to the Senate legislation, the Endangered Species Act Amendments of 2018 introduced by Sen. John Barrasso, R-Wyo.

Based upon years of work by Wyoming Gov. Matt Mead, the Western Governors' Association and a broad group of stakeholders, including the California Farm Bureau Federation, this bill seeks to improve the efficiency and effectiveness of the ESA without impairing the law's essential protections.

Although these measured changes are not everything we might like to see, they represent significant improvements that would be generally acceptable to a broad range of interests, including several constructive conservation groups. For those groups primarily interested in conflict and litigation, nothing that makes the act work better will be acceptable—that might slow down the lawsuit ATM.

Other efforts have also been undertaken to modernize the ESA. The Trump administration is working on regulatory changes that would improve the act's functions. Though portions of the administration proposals have proven more contentious, others represent common-sense clarifications that could reduce uncertainty. Members of the House of Representatives Western Congressional Caucus have also introduced a package of eight bills proposing to make changes to the ESA.

There is an opportunity before us to make meaningful improvements to the Endangered Species Act. We must use this momentum for the benefit of species and people alike, by improving voluntary conservation opportunities, allowing agencies to allocate resources more efficiently, and emphasizing species recovery.

(Jack Rice is a senior counsel and Erin Huston is a federal policy consultant for the California Farm Bureau Federation.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.