The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
E&E Daily reports ($) that several environmental organizations are calling for greater spending on listing species under the Endangered Species Act. In a letter to the Biden Administration these groups complain that endangered species conservation efforts are chronically underfunded and urges a dramatic increase in funding for listing species. The former concern is understandable, but the latter is questionable.
The sad reality is that the Endangered Species Act has a poor record at recovering threatened and endangered species, particularly on private land (upon which a majority of listed species depend). Further, there is empirical evidence that listing alone does little to help species, and that listing a species without providing funding for association recovery efforts may actually do more harm than good.
Here is how I summarized some of the relevant empirical evidence in "The Leaky Ark," my introductory chapter to Rebuilding the Ark: New Perspectives on Endangered Species Act Reform.
Several recent studies suggest that listing species and funding recovery efforts are beneficial to species, and increasingly so over time. For instance, one study concluded that the longer a species is listed under the ESA, the more likely it is to be stable or improving.45 It also found that the completion of a recovery plan has a similar effect.46 There also appears to be a positive relationship between species recovery and the percentage of recovery goals set out in a species's recovery plan achieved for that species.47 Yet another recent study found evidence that species-related spending correlates with preventing continued deterioration of a listed species status.48 Yet insofar as these studies rely upon FWS assessments of species "status trends," they may be questioned. The data upon which status trends are based is "inconsistent and of questionable accuracy" and "trends for some species are simply the best guesses of USFWS personnel."49 FWS assessments of species status are somewhat subjective, lack transparent criteria, and "may be manipulated to achieve agency objectives."50
With that caveat in mind, there is evidence that ESA-related spending helps at least some species. A 2007 study in Ecological Economics found, consistent with prior research, that "spending is correlated with improved status."51 This study also found that "ESA-related spending is more effective in preventing deterioration than in promoting improvements in recovery status"52 As the authors explained, "increased spending reduces the probability that FWS will classify a species as extinct or declining," but "evidence does not support the hypothesis that increased spending leads to increases in the probability that a species is stable or improving."53 That is, insofar as the ESA helps, it is more effective at preventing extinction than fueling recovery. Yet this result could be explained by the fact that those species identified as having "high recovery potential" are less likely to be declining or extinct, and slightly more likely to be classified as improving.54 This same study found no effect from designation of critical habitat.55
Other recent research casts doubt on the claim that listing species, in itself, is helpful. Indeed, a 2007 study found that listing a species can actually be detrimental if the listing is not followed with significant funding on species recovery.56 Consistent with some prior studies, it found that the ESA can be effective at improving species status with substantial resource commitments, at least in some cases. Specifically, this study found that listing a species alone has no positive effect, but listing combined with funding has a positive effect and listing with little or no funding has a significant negative effect.57 On this basis, the authors concluded that "the ESA works when it is backed up with money, and not otherwise."58 As the authors explained: "Our analysis suggests that it is not the act of listing itself that matters, but rather high levels of expenditures for recovery combined with listing. Simply listing a species in the absence of such expenditures appears to lead to a decline."59 The authors could not conclude that the ESA is ineffective, as there is no counterfactual group of unlisted species that receive substantial funding.60 The authors of this study hypothesize that the negative effect of listing without funding is due to perverse incentives on private landowners, and that species-specific funding is a likely proxy for increased monitoring and enforcement of the ESA's strictures. "Seen in this light, it is only the credible potential of enforcement that renders the ESA effective."61
Yet a closer look at the data, and especially attention to the fact that different government agencies achieved varying degrees of success in protecting species, may suggest a different conclusion than that only the credible threat of enforcement makes the ESA effective. The study looked at species-related expenditures aggregated by agency, and the results are interesting: "Forest Service spending has the strongest positive effect, followed by the Bureau of Land Management and the Fish and Wildlife Service."62 In other words, spending by land management agencies appears to be more effective than spending by the primary regulatory agency (which also has some land management responsibilities of its own). This would suggest that spending on species conservation on federal lands is more effective than spending to protect species on private land, or that spending on direct conservation measures is more effective than spending on regulatory programs aimed at controlling private behavior.
While only suggestive, this interpretation is consistent with other research showing that the ESA is more effective on federal land than on nonfederal land. Prior research has found that "species found exclusively on federal lands are more likely to be improving than those with mixed or private ownership."63 One study in particular found that "the ratio of declining species to improving species is 1.5 to 1 on federal lands, and 9 to 1 on private lands."64 As Robert Bonnie of the Environmental Defense Fund summarized, "species that occur exclusively on non-federal lands (the majority of which are in private ownership) appear to be faring considerably worse than species reliant upon the federal land base."65 These findings should not be a surprise, as the ESA can induce affirmative conservation measures on federal lands but can do little more than prevent harm to species on nonfederal land, often at the cost of discouraging voluntary conservation. Insofar as many listed species are conservation dependent, this can make a real difference.
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Insofar as species conservation is a public good, there is an argument for government funding of conservation efforts, but the focus should be on conservation, not merely on listing species and triggering the ESA's often-punitive land-use regulations. Indeed, as discussed in the chapter linked above, and in this more extensive article, the ESA's regulation of private land-use often undermines species conservation efforts on private land.
Focusing on listing additional species will definitely increase ESA regulation, but if such listings are not accompanied with resources to fund conservation, and compensate for the consequences of ESA regulation on private land, species listings are unlikely to produce species recoveries.