Jan. 16, 2014 7:15 p.m. ET
The Endangered Species Act was signed in
1973 by a Republican president—
Richard Nixon
—and passed with the support of 99% of Congress. The goal was to
protect America's special animals and plants no matter the cost, but the
measure of the law's effectiveness depends on whether you're a glass
half-full or half-empty person. Between 40%-50% of endangered species in
the U.S. are improving or stable, but the others are moving toward
extinction. While the law has driven the rebirth of 36 species, a
similar number have disappeared. This mixed record on wildlife
restoration—and the real and perceived impact it has on business—has
turned the ESA into a partisan playing field.
Despite
numerous attempts, no major revisions to the law have passed Congress
in more than 25 years. Republican leaders in the House have said they
would try to revise it again next year, but all indications are that
this effort will be as doomed as earlier hyperpartisan proposals that
suggested limiting wildlife protections if there is any economic cost.
This is unfortunate. If politicians
and advocates on both sides are willing to compromise, there are many
ways to make this law even more successful at restoring American
wildlife, while minimizing costs to business and the economy. For
example, in testimony to the House critics have heaped scorn on the ways
the ESA empowers private citizens to use lawsuits to compel the
government to protect species. Setting deadlines for agency
decision-making—and allowing citizens to sue if the agency fails to meet
a deadline—is necessary to make sure that potentially endangered
species receive due consideration, especially because past
administrations have flaunted those deadlines without judicial
enforcement.
Still, critics are right
that lawsuits are not the best way to prioritize species for protection.
A better alternative is to rely on science to tell us which species are
more distinctive, imperiled, critical to ecosystem health, or likely to
benefit from the ESA. Listing decisions could be scheduled based on
those criteria, but the ESA currently lacks a meaningful tool other than
the courts to set up such a schedule.
Other
tweaks could help with whether and how species are listed. While the
ESA hasn't changed, other organizations have developed more
sophisticated ways to categorize extinction risk. The International
Union for the Conservation of Nature, the state of Florida, New Zealand
and the nonprofit NatureServe have developed far more transparent and
quantitative methods that use science to understand the differences
between more and less threatened species. Meanwhile, the federal
government still lacks clear and consistently applied definitions of the
terms "threatened," "endangered" and "recovered" for the 1,500 listed
species.
This is more than semantics.
The lack of clarity creates a huge degree of frustration for state
agencies and businesses affected by the ESA because they cannot predict
how federal agencies will behave. It often appears that requirements
change with agency personnel and on a case-by-case basis.
Establishing
clearer definitions would greatly speed up decisions on whether and how
to protect species. We need that faster process because scientists have
already identified thousands that face some degree of extinction risk
and aren't currently protected. Clear definitions would also create
benchmarks for lowering protection levels from endangered to threatened
to delisted. Such benchmarks would give more businesses and states an
incentive to invest in conservation.
Efforts
to restore or "recover" endangered species also need to be revamped.
The federal government owns almost 30% of all U.S. land, and it is fair
to expect that this should be managed for endangered species
preservation and restoration. Unfortunately, when placing restrictions
on projects, agencies often ask less of federal lands than private or
state lands. That unequal treatment makes little sense. Most Americans
would probably agree that the onus should be put on federal property
whenever, all else being equal, there is a choice in where to pursue
species restoration.
Congressional
action or a directive from Interior Secretary
Sally Jewell
could raise the standard on federal projects to a "net benefit"
level requiring that federal projects leave species better off. While
not a panacea, such a standard would incentivize agencies and businesses
to invest in restoring habitat and species populations. Then they could
"bank" those achievements in advance of future development projects
that will harm species.
Such
initiatives have already paid dividends in California and Hawaii, where
state laws have led to better conservation of listed species and the
protection of more than one million acres—while creating a growing
market in restoration credits for businesses. Recently announced efforts
by the
Obama
administration to improve and expand similar policies across the
country are a step in the right direction.
These
and many other ideas offer a blueprint to produce a new law that would
yield more recovering species, while providing American businesses with
greater regulatory predictability and smart ways to lower costs.
