The Endangered Species Act in need of reform?

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Calls to reform the Endangered Species Act, the keystone legislation in species protection, have been gaining traction lately. One of these recent calls was from the House of Representatives Committee on Natural Resources Endangered Species Act (ESA) Working Group which came out with a report in early February. I use this report as an example because it details the most oft cited issues with the ESA as it currently stands. While I do not personally think that the report’s recommendations are viable and that they conflict with the scientific process, that is not to say that the problems in the report are not tenable. In essence, the report details ESA’s major issues as (1) not being transparent, (2) being too open to litigation, (3) and not including states and local governments along with private landowners in ESA decisions that affect them.

On the issue on transparency, I think that it is important that the decision to list or de-list a species is defensible. The only way to make such decisions defensible is to make the studies, expert opinions, or other data used to make the decision available to the public, especially in the case that the data or study is federally funded. It should be noted, however, that oftentimes the services rely on studies in which the researchers or organizations do not publish or release their proprietary raw data. In this case, the service does not have the data to release and is relying on the best available information as mandated in the act (i.e. the published study). Whether studies that are funded with federal dollars should be required to release their raw data is an entirely different question, especially since this is not the norm in science.

I often read how certain aspect of the ESA should be more plainly defined, such as clear objectives for recovery or de-listing of a species at the time of its being listed as threatened or endangered. Unfortunately, this requirement does not leave flexibility for National Marine Fisheries Service (NMFS) and The Fish and Wildlife Service (FWS) to list species that clearly need protection, but for which we do not have enough data to set hard goals. It is not always obvious whether a species is recovered and stabilized and we may require several years of consecutive data to determine any real long-term trend as opposed to natural population flux. Also, trying to expressly define terms such as “significant portion of the range”, “jeopardy”, and “foreseeable future” could restrict the flexibility of the agencies to respond to each situation given unique species’ needs and regional differences.

On the issue of litigation, I think that few would say this is not a problem for NMFS or FWS (the agencies which implement ESA). Massive amounts of litigation have put a greater burden on our over-taxed federal courts. In the ESA Working Group’s report, there are several recommendations on how to decrease the susceptibility of the ESA to such litigation. They suggest that there should be transparency of settlement agreements with litigious groups, increased flexibility in habitat designation deadlines, and placing a limit on hourly fees paid to attorneys for ESA litigation. While increased flexibility in habitat designation deadlines would help to curtail litigation, it is also important that decisions cannot be delayed for an indefinite amount of time. It is of note that such deadlines are the basis for large number of settlements, including “mega-settlements” in which hundreds of species are included on a petition for listing and agencies are held to a 90-day finding. Forcing such decisions is not only a burden on the FWS or NMFS, but also not scientifically or economically sound. Being forced to list species that have not had time to be properly evaluated may place protection on habitats and species that don’t require it and take resources away from species in need. Additionally, there is currently no limit of the hourly attorney’s fees that groups can request for reimbursement through ESA litigation. Putting a limit on the hourly fees that could be reimbursed would be prudent and be in line with other legislation.

Finally, on the issue of involving local authorities on ESA decisions that affect them is a laudable goal in my view.  It seems reasonable state and local authorities to have a voice in settlements that impact their land and not be treated as just any other citizen with a comment. I believe that keeping state and local governments and landowners out of the decision making process breeds government distrust. The ESA could be a platform in which we can make decisions that protect our species and their environment while taking sustainability, the economy, and public interest into consideration. By doing that, we can both protect what needs our protection and make more innovative and holistic solutions within th ESA.

There are several items of note that I have read in relation to ESA that I believe require clarification. Firstly, the ecological benefits that we receive from intact habitat, such as water and air filtration, are not considered when economic impacts of environmental protection are discussed. These ecological services and their economic impact should always be included when discussing the economics of undeveloped land. It is both short sighted and naive to only speak of economics in terms of job numbers or business’ profit margins.  Secondly, the size of an animal is not indicative of its relative ‘worth’ or biological importance. Talking about a ‘dime-sized spider’ as if this clearly indicates the triviality of its existence is simply wrong. An animal’s ecological role or danger of extinction should not be defined by its size. Indeed, many small animals have led to the discovery and development of various important drugs. Thirdly, DNA technology is not the end-all and be-all for species identification. While on the surface DNA sequencing seems like a straightforward and easy way to differentiate species, it is not that simple. First, it is essential to note that DNA is a tool that biologists and taxonomists can use to help define a species and not a definitive test unto itself. While there is genetic diversity between species, there can (and should be) a large amount of genetic variability within a species as well. Simply put, this means that other factors such as distribution and mating habits/methods must be taken into consideration when trying to define a species, especially if they are in the same Family or Genus. There are several examples of species that while they may be genetically compatible with overlapping distributions, their mating practices prevent them from intermingling.

The ESA is arguably the most important conservation legislation of modern times, and we need to make sure that it is working effectively and efficiently so that it can be used to protect species in peril and their critical habitat. While reform may be needed, I also think that it is crucial that we make sure that the act is not ‘gutted’ as many of the proposals out there would do. I urge the individuals and groups out there that defend ESA to take a hard look at how it may be improved, and not just try to maintain the status quo. Maybe, in the end, we can end up with the best ESA yet.

 

The Committee on Natural Resources report can be found here: http://esaworkinggroup.hastings.house.gov/uploadedfiles/finalreportandrecommendations-113.pdf

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