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The ark in dry dock

  • G. Tracy Mehan III
  • Let us stipulate that the Endangered Species Act (ESA) of 1973 is right up there with the Superfund law and the Clean Water Act rules impacting wetlands, as one of the “most criticized and controversial of all environmental laws,” as described by Jonathan H. Adler, professor at Case Western Reserve University School of Law, PERC senior fellow, and editor of Rebuilding The Ark: New Perspectives on Endangered Species Act Reform.

    Private landowners, farmers, businesses and government officials have all been entangled with regulation and lawsuits to protect endangered or threatened species listed pursuant to this very powerful statute, once deemed the “pitbull” of environmental law. It’s “short, compact, and has a hell of a set of teeth,” according to one environmentalist. Bald eagles, wolves, grizzly bears, snail darters, and the Delhi Sands flower-loving fly, and 1,300 listed species, have generated much controversy and litigation, which may become more acrimonious as the issues of climate change and variability begin to manifest themselves in the decline or extinction of some species.

    As J. B. Ruhl, professor at Vanderbilt Law School and a contributor to this stimulating collection of essays has observed, a wave of “mitigation litigation” is coming. In 2009, the Center for Biological Diversity, one of the more litigious environmental organizations, which had previously sued to list the polar bear due to climate change, dedicated $17 million in the formation of the Climate Law Institute to “establish legal precedents requiring existing environmental laws…to be fully implemented to regulate greenhouse gas emissions.” The ESA was specifically mentioned.

    Professor Ruhl recommends a statutory exclusion of “covered greenhouse gas emissions,” i.e., those already regulated by some other law or regulatory regimes so as to avoid collapsing the ESA under the weight of regulating, well, everything which might, arguably, lead to negative effects on listed species. The structure of the ESA and the impossibility of establishing causal links between a specific emitter or actor and a particular species justify this exclusion. However, Ruhl also wants to recast the law to replace the goal of recovery with that of transition over the next fifty years for “climate-threatened species” and adaptation to climate change. This new category would be defined as “any endangered or threatened species the threats to which are attributable substantially to climate change and its impacts on the ecological conditions upon which the species depends for its survival.”

    Notwithstanding all the controversy and lawsuits, the law has always drawn upon deep wellsprings of support from many quarters of American society and its political class—like Newt Gingrich. In his 2007 book, A Contract with the Earth, co-authored with Terry L. Maple, former president and CEO of Zoo Atlanta, Gingrich, not for the first time, discussed his love for wildlife and reiterated his staunch defense of the ESA as “an excellent example of the value of civility, consultation, and collaboration.” He acknowledged that subsequent changes to the law “have produced good results, a function of shared values and democratic ideals.” Moreover, the Act may be “America’s best environmental success story.”

    The former Speaker was referring to various amendments to the law and regulations, which provide Safe Harbors and “No Surprises” for landowners who voluntarily protect habitat and incidental take permits. These amendments, while hard to measure for ecological effectiveness, have introduced flexibility into what would otherwise be unforgiving regulatory mandates.

    The debate still rages as to the benefits and costs of the ESA, not to mention constitutional issues relating to property rights and unlawful takings, be they categorical or regulatory. Even the metrics of success and failure are controversial. Critics cite the very small number of species that have recovered or been delisted. Professor Adler says 47 were delisted of which nine went extinct as of August 2009. Defenders cite the avoidance of outright extinctions. Again, Adler cites a 1999 study which estimated that the ESA prevented just 192 domestic extinctions during its first 26 years or, using the same methodology, 227 species in the first thirty years.

    Supporters, critics, and reformers of the law do agree that perverse incentives, a very real challenge to species health and protection on private lands, influence the behavior of property owners who readily anticipate the loss of significant economic value in their land if a listed species is found. Their resulting behavior has sometimes been described as “shoot, shovel and shut up.” Cut the trees or shoot the critters before the feds prohibit you from using the land for any financially viable activities. Adler calls this behavior “preemptive habitat destruction.”

    Law Professor David Dana of Northwestern University, in his contribution on “Reforming Section 10 and the Habitat Conservation Program,” notes the “central dilemma” of the ESA: “how to foster species conservation and recovery on private land.” Some estimates indicate that more than two thirds of listed endangered species can be found on private property. “Even in areas where there is substantial federal land that contains critical habitat, the federal land often is part of a patchwork of federal, state, local, and purely private holdings,” says Professor Dana.

    There is some evidence that ESA mandates and the expenditure of real money on public lands can accomplish statutory objectives. Such is not the case on private lands given the lopsided use of the former without the benefit of the latter. Adler quotes one study which finds that “the ratio of declining species to improving species is 1.5 to 1 on federal lands, and 9 to 1 on private lands.”

    Most of the contributors to Rebuilding The Ark focus on various aspects of the challenge of providing incentives for private stewardship for the benefit of endangered species and biodiversity, up to and including protection of ecosystems at scale, and overcoming the barrier of “information asymmetry between government regulators and private landowners.” There are more of the latter than there are of the former out there across the country.

    In truth, information, like lunch, is not free. Accurately assessing the impacts of Habitat Conservation Plans, for instance, is a daunting challenge requiring much data collection and evaluation. And any movement toward incentive- or market-based approaches such as conservation banking or recovery crediting will impose similar costs to achieve transparency and measure results. All of these efforts require “independent evaluation and public scrutiny,” according to R. Neal Wilkins, director of the Institute of Renewable Natural Resources at Texas A & M, who wrote a chapter on “Improving the ESA’s Performance on Private Lands.” Still, these innovative approaches “would be superior to the more cautious approach taken thus far.”

    “An ESA that provides a framework for innovative approaches to stimulating conservation on private lands will be much more effective than an ESA that approaches private lands as a regulatory problem,” argues Professor Wilkins.

    Professor James L. Huffman of Lewis & Clark Law School offers a spirited article on “Protecting Species through the Protection of Water Rights.” He characterizes the governmental preference for uncompensated regulation over the use of eminent domain, as well as agricultural water-users’ resistance to competing with environmental users on price, as the “species protection-takings dance.” He makes a strong case, based on his analysis of current litigation, that the courts will, ultimately, find that state water rights are property rights entitled to just compensation for use value as reflected in the market, if taken by reason of ESA restrictions deemed to be a taking. He cites the success of the Oregon Water Trust as a model of things to come in terms of water markets for environmental values not just consumptive use.

    Emory Law Professor Jonathan Nash makes a cogent case for recalibrating tax deductions for income, gift and estate tax deductions “to reflect the value of an [conservation] easement to a threatened ecosystem” rather than relying “upon the fair market value of the donated easement, that is, upon the reduction in value in the underlying piece of property resulting from the donation of the easement.” Notwithstanding the challenge of valuing ecosystems, this approach would certainly improve incentives for private conservation as would reform of the ESA and international treaties to allow for commercial trade in certain species to encourage local support for species conservation and habitat protection, worldwide, as recommended in a concluding chapter by Michael de Alessi of Stanford University. De Alessi quotes the late Jacques Cousteau, “If the green sea turtle is to survive, it must be farmed.”

    The contributors assembled by Professor Adler in Rebuilding the Ark are an innovative, informed, and insightful group of experts—a broad spectrum of policy and legal thinkers—who will stimulate a useful dialogue on endangered species legal reform and the protection of nature in America.

    A review of Rebuilding the Ark: New Perspectives on Endangered Species Act Reform, Jonathan Adler, Editor. AEI Press, 2011.

    This article originally appeared in The Environmental Forum. Reprinted with permission from the Environmental Law Institute. Visit: to learn more.


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