How Environmentalists Abuse the Endangered Species Act

T he Endangered Species Act (ESA) doesn’t do a very good job at conserving endangered species. It does do a good job at providing environmental activists with a powerful tool to block construction projects they don’t like.

The economic incentives the ESA creates are exactly backward to what you’d want if the goal was to conserve endangered species. The ESA says that if an endangered species is discovered on your land, you forfeit many of your property rights to the government. Because most landowners don’t want to forfeit their property rights to the government, the law in effect encourages them to destroy potential habitats for endangered species and maybe even kill endangered animals to prevent the government from discovering their presence.

The track record of the ESA is very poor. The federal government only takes credit for 71 listed species having actually recovered, which is less than 3 percent of the total number of species listed over the law’s 50+ years. But even that is probably an overestimate because other non-ESA factors can also contribute to species’ recovery.

On the other hand, if you understand the ESA to be a tool, not for conservation, but for environmental activists, then it has been very successful. The perverse incentive it creates for landowners is paired with a perverse incentive for environmental scientists: If you can invent an endangered species, you can stop just about any major project you want.

What constitutes an endangered species is inherently a judgment call, and it’s one that courts are likely to defer to scientists on, since judges don’t usually know much about biology, zoology, or ecology. So if you’re an environmentalist who wants to stop a project, send some scientists out to the area the project is taking place and try to find some species that could be considered endangered. If they can find one, the project has to stop under the ESA.

Five decades later, the New York Times has reported on one of these efforts. Soon after the ESA was passed, environmentalists used it to block construction of the Tellico Dam in Tennessee. They claimed to have found an endangered species of minnow, the snail darter, in the Little Tennessee River, and the Supreme Court ruled that the dam could not go forward.

One problem: “There is, technically, no snail darter.” That’s according to Thomas Near, a Yale fish biology professor quoted by the Times. We now know this to be the case because in 2015, fish that looked like snail darters were found in a river hundreds of miles away from the Little Tennessee River. DNA analysis confirmed that the “snail darter” was in fact the eastern population of this other type of fish, the stargazing darter, which is not endangered.

“I feel it was the first and probably the most famous example of what I would call the ‘conservation species concept,’ where people are going to decide a species should be distinct because it will have a downstream conservation implication,” Near told the Times.

If this pattern sounds familiar, it’s similar to the strategy often used by public-health activists and climate activists. They twist scientific findings and present a false story to the public, convincing themselves it is a noble lie in pursuit of their desired policy outcome, which they believe to be more important than the actual science.

That mindset is evident in Zygmunt Plater, an emeritus law professor who wrote a book siding with the environmentalists in the snail darter controversy. He called Near a “lumper,” a pejorative term used to describe biologists who believe there are fewer species rather than more, and told the Times, “Whether he intends it or not, lumping is a great way to cut back on the Endangered Species Act.” His concern is with preserving the power the ESA provides.

Congress specifically exempted the Tellico Dam project from the ESA to allow the project to be completed. Despite the dam’s completion, the “snail darter” has done so well that it was removed from the endangered species list in 2020.

In 2022, Secretary of the Interior Deb Haaland said, “The recovery of the snail darter is a remarkable conservation milestone that tells a story about how controversy and polarization can evolve into cooperation and a big conservation success. By protecting even the smallest creatures, we show who we are as a country; that we care about our environment and recognize the interconnectedness of our lands, wildlife and people.” In this case, the federal government is patting itself on the back for the recovery of a species that, at least according to Near, doesn’t “technically” exist.

I’m not particularly interested in defending the Tellico Dam, which was a pork-barrel project by the Tennessee Valley Authority aside from any environmental concerns. But the debate over whether the project was worthwhile was sidelined by the ESA. As Jonathan Adler wrote for Reason, under the ESA, “What should be policy fights over whether the benefits of a project justify harms or risks to particular species instead become fights over whether something is a species or is at risk of extinction.”

Because these same incentives apply to non-pork projects too, it’s safe to say the Tellico Dam was not the only project over the past 52 years of the ESA’s existence that was halted or delayed by activists’ invention of endangered species. And the ESA is but one of many laws passed in the early 1970s that have contributed to the proliferation of growth-stifling federal regulations that today cost the U.S. economy over $2 trillion per year.