The Endangered Species Act at 50: Still Not Recovering Species After All These Years

Jonathan H. Adler. 

The federal government is celebrating the ESA's 50th anniversary with proclamation's of the Act's success. Yet the celebration is unwarranted. After fifty years, it has become painfully clear that the law does very little to recover species from the brink of extinction, particularly on private land. The law's failure on private land is particularly important because a majority of species rely upon privately owned habitat. Not only does the ESA do little to conserve species on such land, a wealth of empirical evidence has shown the law can do much the opposite. The Act's punitive regulations can actually discourage private land habitat conservation.I survey the Act's "success" in this forthcoming article, "Tarnished Gold: The Endangered Species Act at 50." Here is the abstract:

The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act's force and ambition, it is unclear how mu*ch the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA's success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the Act's ability to foster private land conservation is will affect the law's overall success.

In terms of the Act's failure to conserve species, here are a few salient points discussed in the paper.

• The ESA's stated purpose is to "conserve" those species listed as endangered or threatened, and expressly defines conservation of species as bringing populations to the point at which the Act's protections are no longer necessary. Thus, looking at the Act's success (or failure) to recover species is evaluating the Act on its own terms.
• Since Congress enacted the ESA, the number of species listed as threatened or endangered has steadily grown. As of October 2023, there were 2,388 listed animal and plant species, 1,690 of which are present in the United States.
• Since 1973, only 127 species—only 5 percent of listed species—have been delisted. According to the FIsh  Wildlie Service, 32 were delisted because they went extinct and 22 were erroneously listed in the first place. Thus only 73 of the delistings are classified by the FWS as recoveries.
• Of the 73 species listed as recovered, 12 are foreign species, which lie outside of the U.S. government's regulatory jurisdiction, some species were (de)listed more than once (e.g. three separate domestic populations of Humpback whales were listed and delisted separately), and 20 are plants, which are not subject to the same degree of regulatory protection as are endangered animals.
• Of the domestic animal species delisted, several are listed as ESA success stories that either should not have been listed in the first place, or that recovered for reasons other than the ESA' regulatory interventions (e.g. due to exogenous factors or direct acquisition of habitat). Indeed, it is not clear there is a single ESA recovery that can be credited to the ESA's regulation of habitat on private land.

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