by Damien M. Schiff
Property rights and other groups that seek reform of the Endangered
Species Act oftentimes note that only a tiny fraction of the species
that have been listed under the Act have recovered. Environmentalists
typically respond that a recovery metric is not a good way to measure
the Act’s performance. A good example of this defense, in adumbrated
form, was recently made by Professor Eric Biber at LegalPlanet.
Many species, he explains, are listed when they are on the verge of
extinction. Yet the threats that have led to their imminent
disappearance usually will take some time to mitigate. Hence, the Act
may very well be “working” but we haven’t given it enough time to show
its stuff.
In my view, there are at least three significant problems with this defense.
First, the Act has been on the books in substantially the same form
for over four decades, and many species have been protected for twenty
years or more. I suspect, however, that the recovery rates are not much
higher for long-listed species than they are for recently listed ones.
If the Act needs more time to work, shouldn’t we see substantially
better recovery rates with long-listed species?
Second, a substantial number of species are listed as threatened, which status by definition means that a species is not in
imminent danger of extinction. Such species do not implicate Professor
Biber’s point about species being nearly extinct when listed and
therefore requiring especially time-consuming efforts at recovery. Why,
then, hasn’t the Act been more effective at recovery of threatened
species?
Third, the Act itself provides the appropriate measure of its
performance. Section 1(b) of the Act, entitled “Purposes,” says that the
Act is intended “to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved.”
Section 2(3) of the Act defines “conservation” as “the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this [Act] are no longer necessary.” Hence, the Act
clearly provides that its purpose is to improve the health of listed
species to the point that they can be delisted. Even Professor Biber
would acknowledge that the Act hasn’t achieved that goal.
Damien Schiff is a principal attorney for Pacific Legal Foundation. Mr. Schiff practices Environmental Law, with emphasis on cases involving the Endangered Species Act and the Clean Water Act.
Issues of concern to people who live in the west: property rights, water rights, endangered species, livestock grazing, energy production, wilderness and western agriculture. Plus a few items on western history, western literature and the sport of rodeo... Frank DuBois served as the NM Secretary of Agriculture from 1988 to 2003. DuBois is a former legislative assistant to a U.S. Senator, a Deputy Assistant Secretary of Interior, and is the founder of the DuBois Rodeo Scholarship.
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