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

Claims of the Act's success at recovering imperiled species are vastly overstated, especially on private land.

On December 28, 1973, President Richard Nixon signed the Endangered Species Act (ESA) into law. In celebrating the law's enactment, Nixon proclaimed that the law would "provide[] the Federal Government with needed authority to protect an irreplaceable part of our national heritage--threatened wildlife." Few opposed the law's enactment. Few also anticipated how controversial the law's regulatory provisions would become, or how little the law would actually do to recover endangered and threatened species.

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 much 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.

The paper goes through this evidence and also surveys the empirical research on what sorts of measures appear to be more or less helpful in recovering species. In short, the direct acquisition and management of habitat, where adequately funded, does appear to help many species. So do direct interventions, such as predator control, where applicable. Subjecting private landowners to regulatory restrictions on the use or modification of potential habitat, on the other hand, appears to do very little and (as noted above) in some cases does more harm than good.

Conserving endangered species in the wild is a worthwhile goal, and one I actively support. Unfortunately, the primary law used for this purpose is not up to the job.

[Note: My data departs from that of the FWS because the agency removed a species--the Tumamoc Globeberry--from the species database earlier this year, even though the species had been listed, and was then delisted in 1993. I'm still investigating why this occurred. Time permitting, this will be the subject of a separate post.]

Comments

[Martinned]

I'm going to assume that the author understands the concept of a difference-in-difference methodology, and conclude that much tougher regulation of private land use is warranted. Or is that not the policy recommendation of the article?

[Jonathan H. Adler]

There are both practical and legal constraints on the use of regulation of private land as a means of species conservation. On the practical side, regulatory strictures cannot fully substittue for the degree of managerial control land ownership provides, which is one of the reasons we should not be surprised that the federal government has been more successful at helping species through changes in federal land management than in private land regulation. Attempting to manage private land as federal land would not only present agency problems, it would also raise constitutional concerns under the Fifth Amendment. Direct acquisition of essential habitat and the provision of incentives for conservation on private land would both be more successful. This is all discussed in the full article.

[Stephen Lathrop]

This is all discussed in the full article.

In the full article, is it called, "gloating?"

[Abdul Abulbul Amir]

"Since Congress enacted the ESA, the number of species listed as threatened or endangered has steadily grown."

This means more work, more authority, more budget, and more opportunity for promotion for the regulators. What a surprise!

[Bruce Hayden]

A lot of money spent for little benefit. And now they are trying to breach dams in Idaho to recover a sub sub species of a fish that has no remaining instinctual memories of those upriver spawning grounds. This will increase brownouts and blackouts, esp in CA, for a fish that almost no one has ever heard of, or cares about. And what about the people who die as a result? Why are fish lives more important than human lives?

[Stephen Lathrop]

Hayden, you think people have never heard of salmon? I am old enough to remember seeing king salmon spawning at the headwaters of the Salmon River, more than 7,000 feet above sea level.

Dams on the Snake river put an end to that. Get those dams out of there. They aren't even useful for irrigation. They are in canyons too deep to pump the water out.

The canyon dams are used only for power generation. With some more re-engineering on Columbia River dams, hatchery salmon released into the old Salmon River spawning grounds can re-establish those salmon runs. The natural ecosystem of Hell's Canyon and the Salmon River were worth far more than the increment of clean power the Snake River dams provide.

The Salmon River would otherwise remain a gigantic and nearly pristine ecosystem, from its source to its mouth. It drains an actual wilderness almost twice the size of Connecticut. On what planet is a little bit of hydropower worth more than that?

[Bruce Hayden]

What is the life cycle of those salmon? As I understand it, they come back up to where they were born, spawn, and, and die. That means that when you go beyond that lifecycle, there is no instinctual memory left of those spawning grounds. It has surely been at least that long, since the river was dammed - women in the office next to me in NW NV grew ul on the OR side of the border, and remembered when it happened.

What about putting in fish ladders next to those dams? We have one by the dam by our house in NW MT. Works just fine.

As for the power that would be lost, where would it be replaced from? Ultimately what it means is more brownouts and blackouts in CA, and esp S CA. They have a rising need for electric power at the same time that they are needlessly shutting down nuclear plants. CA imports electricity from the entire region, from WA all the way down, as well as MT, ID, and even UT. Come back with an honest, affordable, proposal for replacing the electric power power that would be destroyed with the dams with stable (meaning not inconsistent power sources like wind and solar) power sources. Build some new nuclear plants to replace the lost hydro, and come back and we can talk about your sacred sub sub species of salmon. Time is not of the essence, since the instinctual memory of the up river spawning grounds has long been lost. Until then, you are just talking about deindistrializing and depopulating CA as quickly as you can.

[Nige]

‘Why are fish lives more important than human lives?’

Well indeed. Why is a functioning living eco-sytem more important than human lives? Oh no, wait. You can’t have human lives without functioning living eco-systems.

[Bruce Hayden]

Sub species come and go. Always have. Always will. You aren’t talking the current status quo, but the status quo of decades ago that would maybe be somewhat restored. Never fully, or probably even that close. The salmon that used to spawn above where the dams are, are effectively extinct. We have a fish ladder by the dam by us in NW MT, and the fish that have returned did so with human help. Nothing natural about it. You would be reintroducing a related sub species.

And related sub species are rarely the same. Take, for example, our wolves. The wolves indigenous to the Continental US have been effectively extinct for our lifetimes. That wasn’t what was reintroduced into Yellowstone, and soon CO. Instead, it was a Canadian relative, that is bigger, and runs in bigger packs. Evolved for larger prey, and reintroduced a century after their biggest prey source (bison) had been mostly eliminated. What’s left big enough to feed a pack of Canadian Gray Wolves? Elk and cattle. Throw in sheep as appetizers. Do you have to deal with these reintroduced species? We do - with brown bear on our northern ridge, and wolves on the souther one, and yes, bison and cattle between them, on the valley floor, all in our small county.

[jimc5499]

Ever think that the ESA was designed that way? Like the EPA. It has nothing to do with the environment. It is meant to cripple manufacturing. The ESA is being used the same way.

[Martinned]

Of course. Nixon famously hated manufacturing, and sought to kill jobs whenever possible.

[Longtobefree]

Turns out the environment doesn't read US laws or court rulings.

[Life of Brian]

Hubristic humans play God poorly. News at 11.

[Nige]

If that's your idea of playing God, poorly or otherwise, you must not think much of God.

[Stephen Lathrop]

LoB hears folks advocate to leave natural ecosystems undisturbed, and concludes they are playing God. Peculiar. Backward and peculiar, actually.

[Bruce Hayden]

But you advocate returning them to some vision of what those ecosystems supposedly were in the past. Not to the status quo ante, because that is impossible, but something that you think looks like it. Why?

[Frank Drackman]

Rush Limbo used to joke about how Sea Turtle embryos were protected more than Human ones, seeing the current generation, it's not such a bad thing.

[ReaderY]

This may well be a classic “the perfect is the enemy of the good” argument. Most federal government efforts of the era have been far from perfect in achieving their goals. The war on poverty didn’t eliminate poverty. Civil rights laws didn’t catapult the average black family into economic equality with the average white family, or even eliminate discrimination. The war on cancer didn’t eliminate cancer. The EPA didn’t eliminate pollution. And the Endangered Species Act didn’t eliminate extinctions.

Yes, the federal government has constitutional constraints in its ability to regulate private activity on private land. Yes, some regulations turned out to be misguided.

But Professor Adler’s basic argument could be applied to ANY government action. Laws against rape, robbery, and murder have eliminated none of these crimes. Not only has massive spending on police forces not eliminated crime, but mistakes and rogue officers have sometimes created danger.

If Professor Adler’s basic argument is right, we ought to declare police forces and criminal laws a failure and end them.

People are imperfect, and government can only be limited in its respomse to anything. No government solution to any problem can be expected to be perfect. Even successful actions can turn out to have unexpected negative consequences.

Of course, private activity is hardly perfect either. Frankly, nothing people do is perfect. It’s part of being human.

[Life of Brian]

.

This may well be a classic “the perfect is the enemy of the good” argument.

This seems like more than a bit of a red herring. As I read it, the article is not demanding anything close to perfection at all, but is questioning, via extensive data, how much "good" (particularly from a cost/benefit standpoint) has actually come of the Act.

A far more apt comparison thus seems like the ill-fated War on Drugs you omitted from your list: horrendously costly, not much if any measurable positive impact, and extensive negative unintended consequences.

[Stephen Lathrop]

The principal deficiency of the Endangered Species Act is that it quickly got turned into a legally inefficient proxy to preserve ecosystems. That is what the act would have been designed to do had it come along a couple of decades later, when species issues were better understood.

So Adler, will you back replacement of the endangered species act with better science, and endorse an ecosystems protection act, applicable alike to public and private land? Of course you won't. Development interests wouldn't like that at all.

[Darwinnie]

I don’t think people value plants and wildlife enough to do nearly what’s needed to prevent species from going extinct. Maybe bald eagles or game animals. But even that’s questionable. All I can hope for is that the ESA is better than nothing. But that’s not saying much.

[Ezra MacVie]

Editing too crummy to read.

[John F. Carr]

I distinguish two types of protected species.

Some are protected to throw sand in the gears of development. No effort is made to save them.

A very few, with the California Condor being my favorite example, receive sufficient help to make a difference.

One of the first kind was taken off Massachusetts' list because anti-development groups were so successful in finding populations near proposed development. It was not rare after all, only under-sampled in old surveys.

[Aspiring Statesman]

With regards to private land, the ESA is all stick and no carrot, and that's a problem. A handful of unfortunate owners bear the full cost of conservation, hence the admonition to "shoot, shovel and shutup".

Now imagine the opposite (assuming for the sake of argument that there's a common good to be bought here): What if the government offered rewards for private land owners who report and conserve endangered species on their property? Then the cost would be distributed broadly among all those supposedly benefiting from maintaining bio-diversity, and property owners would be (at least partially) compensated for their conservation efforts.

As a bonus, researchers would gain thousands of extra observer-eyes and data-entry hands to gain better knowledge about these rare plants and animals.

Sadly, my idea will never be accepted by the progressive left. They never did give a damn about actually preserving bio-diversity -- Their only goal all along has been to extinguish property rights and impoverish the rural conservatives whom they hate. The endangered species were never more than tools of demagoguery.