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United States Senate Committee on Environment and Public Works Subcommittee on Drinking Water, Fisheries, and Wildlife

Hearings on the Reauthorization of the Endangered Species Act Original Article

United States SenateCommittee on Environment and Public Works
Subcommittee on Drinking Water, Fisheries, and Wildlife
Hearings on the Reauthorization of the Endangered Species Act

July 13, 1995

Comments of
Mark L. Plummer, Ph.D.
Senior Fellow, Discovery Institute

In 1973, when Congress passed the Endangered Species Act, its members believed the goal of banishing extinction was imperative and within quick reach. “When we threaten endangered species, we tinker with our own future . . .,” said Representative Leonor Sullivan, Democrat of Missouri, chairman of the House Merchant Marine and Fisheries committee. “And we do so, for the most part, for reasons that can be described most charitably as trivial.” The implicit assumption, echoed by many conservationists today, was that endangered species can be saved without significant sacrifice. If development affects a species here, we can just move the development or the species somewhere else — an easy thing to do. Thus saving everything is not an unreasonable burden.

Over the past twenty-one years, it has become increasingly clear that the opposite is the case. From loggers in the Pacific Northwest to orange growers in Florida, from backyard barbecuers in upper-state New York to real estate developers in southern California, it is ordinary men and women doing ordinary things that threaten species, not trivialities. Still, the good reasons for endangering biodiversity might still not be enough if losing even one species would indeed “tinker with our future.” Yet that belief also stands in ruins. Losing a species may be tragic, but the result is rarely, if ever, catastrophic.

The problem of endangered species, then, presents us with few automatic solutions. As uncomfortable as facing the prospect may be, we must make choices that will have profound consequences for the future of our natural heritage. Ignoring this necessity, as the Endangered Species Act does, will not make the difficult choices go away. Instead, we will make them poorly, with little regard for either the good reasons for protecting species or the good reasons for sometimes not protecting them. Our efforts are unlikely to give us much satisfaction — as the record of the act amply demonstrates.

The goal of the Endangered Species Act is to bring species to “recovery,” which the act defines as the point “at which the measures provided pursuant to this Act are no longer necessary.” If a species attains recovery, Fish and Wildlife is supposed to remove it from the official list. At the end of 1973, the list consisted of 122 species that Fish and Wildlife had placed on the list under the 1966 and 1969 endangered species acts. By the end of 1994, 21 years later, the agency had added another 833 domestic species, an average of almost 40 species a year. In that time, the agency delisted 21 species, an average of 1 species a year.

In fact, the 40-to-1 ratio of listings to delistings overstates the progress rate, because few of the latter were due to recovery. Seven species left the list when Fish and Wildlife declared them extinct. Of these, only one species with a good chance of survival — the dusky seaside sparrow — disappeared on the agency’s watch. The others were either on the verge of extinction at the time of listing because of their extreme rarity, or long thought to be extinct, but placed on the endangered list in the hope that the action would spur biologists to discover new populations.

Another 8 of the 21 delisted species were removed because they should not have been on it to begin with — the data on which the agency decided to list them turned out to be mistaken. An example is the Rydberg milkvetch, a member of the pea family originally known only through samples taken from southwestern Utah in 1905. Unable to find more Rydberg milkvetches, botanists believed it to be extinct. When a few populations turned up in 1975, Fish and Wildlife added the plant to the endangered list. In the 1980s, though, taxonomists decided that almost a dozen populations of the plateau milkvetch, a close relative, should instead be counted as Rydberg milkvetches, automatically increasing the numbers of the latter. Concluding that its original action was in error, Fish and Wildlife delisted the plant.

Finally, even the remaining balance of 6 domestic species delisted by Fish and Wildlife because their status had improved did not always owe that improvement to the Endangered Species Act. Consider the arctic peregrine falcon, which Fish and Wildlife struck from the list in October of 1995. Although the Endangered Species Act banned hunting the falcon or harming its habitat, these actions, according to the official notice of delisting, were not “pivotal” to its recovery. Instead, the bird owes its improvement largely to the ban on pesticides like DDT — an action that predated the Endangered Species Act. (On June 30, 1995, the Fish and Wildlife Service proposed removing the American peregrine falcon from the list, for virtually the same reasons.)

By other measures of success, the act shows similarly poor results. Reclassifying species from endangered to threatened has occurred less often than delisting: Between 1973 and 1994, Fish and Wildlife reclassified 13 species. And according to the 1992 biennial report from Fish and Wildlife on the recovery of listed species, the latest available, only 69 of the 711 species then listed — not quite 10% of the total — could be described as “improving,” indicating active progress toward full recovery. Twenty-eight percent had “stable” populations, a sign that their declines had been halted. But a full 33% were “declining;” another 27% were “unknown.” (The remaining 2% were believed to be extinct.) And species with stable populations were being held in a precarious position: almost three-fifths had achieved fewer than 25% of their recovery objectives.

The failure of the law to achieve full recovery means that once a species joins the list, it is almost certain to remain there for an indefinite period of time. Any private or public action that threatens the species, no matter how praiseworthy in other circumstances, becomes tainted. Private landowners and federal agency managers live under the perpetual shadow of the Endangered Species Act. In this way, an endangered species becomes a permanent liability for anyone unlucky enough to be host to one.

Understandably, landowners have responded by trying to free themselves from these restraints, sometimes in ways that work against the goal of protecting biodiversity. In the Austin area, for example, some landowners keep their property clear of the vegetation that could provide homes for the black-capped vireo or the golden-cheeked warbler, two endangered birds. In the Pacific northwest, some timber owners have adopted forest practices that ensure conditions inimical to the northern spotted owl. An alternative strategy is to challenge the scientific basis for having a species on the list at all. In Orange County, lawyers debate whether the coastal California gnatcatcher is really a subspecies or merely a variant of another gnatcatcher subspecies with huge populations further south. In Alabama, the same controversy rages, in this case over the Alabama sturgeon.

Most perverse of all is the fight over the attempts by the Department of Interior to launch a nationwide biological survey. What possible objection could landowners have to this survey? The answer is simple. The knowledge that a parcel of land houses a listed or potentially listable species puts that land under a cloud. The better course of action is to keep the government in the dark, and quietly scrape the land bare of vegetation.

These responses point to a central defect in the current law. In principle, the Endangered Species Act creates a two-step mechanism. Biologists first determine that a species is sufficiently endangered to be added to the official list — a decision that is supposed to be made on purely scientific criteria. Once a species is listed, the U.S. Fish and Wildlife Service then is charged with developing a program for returning the species to health.

Science in the first step, policy in the second — except that the second step admits only one goal, full recovery. The scientific determination that a species is endangered effectively locks in the duty to save it, almost no matter what. Because full recovery has turned out to be an impossibly difficult task, the political conflicts that should naturally be resolved in the second step find their expression instead in the first, where they cannot be debated on any but scientific grounds. Biologists, not government or elected officials, are the ones who set policy, assuming the role of ecological mandarins with the power to bless or condemn a wide variety of land uses. In this way, science becomes embroiled in what are essentially policy questions, and the actions of scientists, just like those of landowners, are greeted with suspicion, fostered by a belief that their values, not their data, hold sway.

Reforming the Endangered Species Act must begin with restoring the separate domains of science and policy. No matter how carefully scientists perform their analyses of what actions can be taken to protect and restore endangered species, they cannot tell us what actions we should take. Twenty-one years ago, Congress attempted to circumvent those choices by setting full recovery as the only acceptable goal. That strategy has failed, and so reform must begin by allowing true flexibility in the second, policy stage. The endangered list should remain as a scientific tally of this nation’s threatened wildlife. But it should no longer be tied to the single goal of full recovery for each of its entries. Instead, we must acknowledge that the choices of how much and what forms of protection an endangered species receives profoundly affect people’s lives, and are therefore inherently political. Species are menaced to improve roads to hospitals, build university campuses, create affordable housing, make the raw material for newspapers and magazines, and create a host of other social goods. When we alter or cancel these projects to benefit nature, we make life harder for human beings. In many cases the sacrifice will be worthwhile; but we must change the Endangered Species Act to create a meaningful opportunity to say “no” when it is not.

Creating such an opportunity does not mean tossing aside all duties to nature. The law should retain basic duties for both private and public parties. More importantly, those duties need not be cast in the simplistic terms of saving a species or consigning it to extinction. The choices we face involve actions with uncertain outcomes. Setting aside one part of a species’s habitat, for example, will increase its chances of survival, not provide a guarantee; similarly, allowing a housing development to fragment its habitat will decrease its chances, not ensure its doom. Determining what those changes will be is a matter for biologists, just as estimating the costs or benefits of either action is a matter for economists. Although scientists may disagree with one another over the answers, these questions lie squarely in the domain of science. But once the dust has settled, the choice of what action to take is in the domain of politics, not science.

Although the present system does not recognize any goal short of recovery, it is forced by reality to choose among actions. It is tempting to believe, then, that the current law can be fixed merely by improving its unofficial system for making those choices. This hope is unfounded, however. The more flexible the administration of the current law becomes, the further its results will recede from its statutory goal. And as long as species fail to achieve that goal, they will remain on the list. The government will retain its power to say “no” to landowners, who in turn will still face the incentive to work against efforts to save species. This dissonance would only be exacerbated by triggering the law earlier in a species’s slide toward extinction, or expanding it to cover entire ecosystems.

The time has come to question the goal that underlies the Endangered Species Act: Save every species, no matter what the cost. That duty denies that limited resources and competing values force difficult choices. Crying “no more extinctions” produces a noble sound, but it does nothing to ensure that extinction will stop. And it has the potential for worsening the status of biodiversity, because aspiring to the perfect may prevent us from obtaining the merely good. The absolute duty of the federal government to stop any action that threatens a listed species must be relinquished. Otherwise, attempts to resolve conflicts between species and humans will wither under the eternal shadow of the Endangered Species Act.

[Some of the material in these comments is derived from Noah’s Choice: The Future of Endangered Species (Knopf, 1995) and other work co-authored with Charles C. Mann.]