Magazine | September 30, 2019, Issue

The New Endangered-Species Regulations Are Good for Species

A Monarch butterfly at the Rocky Flats National Wildlife Refuge (Tom Koerner/USFWS/Handout via Reuters)
The old rules created a perverse incentive not to preserve habitat

Before the ink dried on the Trump administration’s regulatory revisions to the Endangered Species Act last month, environmentalists and the media declared them a disaster. “These changes crash a bulldozer through the Endangered Species Act’s lifesaving protections,” said Noah Greenwald of the Center for Biological Diversity in a widely quoted statement. “For animals like wolverines and monarch butterflies, this could be the beginning of the end.”

Almost every past attempt to update the nearly 50-year-old law has been met with strong resistance, regardless of the administration in power — and understandably so. Public support for the act consistently ranks high, and the appeal of saving species from extinction transcends party affiliation.

But much of the commentary about the new rules — which make several changes to the way the government implements the act — has nonetheless been misleading and overblown. Far from “gutting” the act, as CNN reported, many of the revisions are procedural changes. And some of the more substantive changes have a good chance of improving the overall effectiveness of the act.

As a tool for protecting and recovering imperiled species, the Endangered Species Act has a mixed record. On one hand, 99 percent of species listed under the act have avoided extinction. On the other hand, only 2 percent have recovered and been delisted. 

It’s not hard to see why. The act’s punitive regulatory approach may be good for stopping destructive land-use activities that could push a species beyond the brink of extinction, but it does little or nothing to reward private landowners who recover species or restore critical habitat. In fact, it often does the opposite: The act imposes costly regulatory burdens on landowners, effectively turning endangered species into liabilities to be avoided rather than assets to be conserved. And because most endangered species rely, at least in part, on private lands for habitat, few species have recovered.

A clear-eyed assessment of the Trump administration’s changes would consider not simply whether the new rules are more or less stringent than before, but whether they are likely to improve what the act does poorly (recovering species) while preserving what the act does well (preventing extinctions). A strong case can be made that the new rules will succeed on both counts.

To see how, consider one of the more significant rule changes: the removal of a blanket policy issued by the Fish and Wildlife Service in 1975 that extends the act’s full protections to all listed species, regardless of whether they are considered endangered (those currently at risk of extinction) or threatened (those that could become endangered “in the foreseeable future”). Since then, the same strict regulations have applied to threatened species and endangered ones, unless the agency issues a special provision stating otherwise.

The new rules will restore Congress’s original distinction between threatened and endangered species by tailoring protections to match the needs of the species — a change that could provide better incentives to recover species. Going forward, the Fish and Wildlife Service will decide on a case-by-case basis which protections a threatened species should receive, allowing the agency to issue baseline protections without unduly restricting activities that pose little or no threat to the species — including management actions such as grazing or forest management that could improve habitat for certain species but might otherwise have been forbidden under the full endangered-species protections.

This could go a long way toward encouraging species recovery. Before the recent rule change, landowners who worked to improve species’ status from endangered to threatened often received nothing in return. And likewise, once a species was listed as threatened, landowners had little reason to prevent a further decline: The same burdensome restrictions applied in either case.

Now, under the new rule, the incentives of landowners will be better aligned with the interests of at-risk species. Landowners can be rewarded with regulatory relief if an endangered species’ status improves, and they will have ample incentives to recover threatened species to avoid a more-stringent endangered listing. And, importantly, the Fish and Wildlife Service will be able to craft more-flexible rules for threatened species that encourage states, landowners, and conservationists to collaborate on recovery efforts — such as projects that permit certain land-use activities in exchange for conserving and improving habitat elsewhere — while retaining the ability to impose stricter endangered protections if a threatened species continues to decline. 

As an example, consider the monarch butterfly. Populations of the iconic insect, which migrates throughout much of the United States each year, have fallen as much as 90 percent in recent decades. The decline is in large part due to a lack of milkweed, a plant that monarchs depend on but that is being increasingly eradicated by modern agriculture. (Milkweed is, after all, a weed.) The Fish and Wildlife Service has until next year to decide whether to list the monarch butterfly under the Endangered Species Act — a decision that could affect landowners across the country.

Under the old rules, in which all listed species receive full protection by default, listing the butterfly under the Endangered Species Act would be the surest and fastest way to deter many landowners from helping recover the species. Landowners would have no incentive to plant milkweed, which the species relies on exclusively to lay eggs and as a food source for its caterpillars. Planting milkweed would create monarch habitat, which could then make landowners subject to burdensome regulations. Harming a butterfly or its habitat — even inadvertently, as part of everyday land-use activities — could trigger the act’s full civil and criminal penalties.

Some landowners might even be encouraged to preemptively destroy existing monarch habitat, a phenomenon that has been well documented for other endangered species. For example several studies have found that timber owners in North Carolina began cutting trees earlier, or clear-cutting forests entirely, to avoid land-use restrictions that would have arisen if their forests became old-growth habitat for endangered red-cockaded woodpeckers.

The new rules aim to change that. In the case of the monarch, a less-stringent threatened listing could allow the Fish and Wildlife Service to encourage participation in voluntary conservation measures without creating perverse incentives that would undermine the butterfly’s recovery. The Environmental Defense Fund, for example, has been developing a habitat-exchange program that offers incentives for farmers to plant milkweed. Similar programs could be encouraged or developed under the new threatened-species listing rules, which could be crafted to support — not undermine — ongoing voluntary conservation efforts. For instance, rules could be issued that allow landowners enrolled in a voluntary conservation program to be exempt from certain land-use regulations.

Another rule change reverses a policy that allowed the government to designate “critical habitat” on lands that are currently unoccupied or uninhabitable by a species. Such designations impose costly regulations and permitting requirements on landowners and generate plenty of conflict, but they do little to promote conservation.

In 2011, the government designated 1,500 acres of private land in Louisiana as critical habitat for the endangered dusky gopher frog — even though the species had not been seen in the state for 50 years and could not survive on the land unless significant modifications were made to it, including replacing the current commercial pine plantation with the historic, fire-dependent longleaf pine forest found there centuries ago. The landowner’s reward for receiving such a designation: a potential $34 million loss in development value, according to the Fish and Wildlife Service’s own estimates. Not surprisingly, the landowner had little interest in recovering the frog.

The conflict resulted in a unanimous Supreme Court opinion last year that held that only habitable land could be designated as critical habitat. The Trump administration’s new rules conform to the Court’s ruling by requiring that unoccupied critical-habitat areas “contain one or more of the physical or biological features essential to the species’ conservation” and that there be “reasonable certainty” that such a designation will contribute to the conservation of the species.

Media reports about several other regulatory changes have simply been inaccurate. Many outlets have asserted that the new rules will allow economic factors to be taken into consideration when deciding whether to list a new species. The reality is that the new rules explicitly acknowledge that the Endangered Species Act forbids economic considerations from influencing listing decisions. The new rules simply remove a gag order that forbade the Fish and Wildlife Service to report economic costs.

Moreover, the government cannot suddenly ignore climate change in listing decisions, as some have claimed. The new rules clarify the definition of “foreseeable future” as extending only as far into the future as agency officials “can reasonably determine.” This language simply codifies a policy that the Fish and Wildlife Service has followed since 2009, during which period many species have been listed based in part on threats arising from a changing climate.

Overall, many of the changes finalized last month are far more modest than environmentalists and the media have portrayed. And some of the more substantive changes, such as restoring the regulatory distinction between threatened and endangered species, will likely reduce conflicts with landowners and encourage more collaboration in species-recovery efforts — all without reducing the act’s effectiveness at preventing extinction.

If the goal of endangered-species policy is simply to control land use and stop development, then the status quo is fine. But if the goal is truly to recover species, then changes are long overdue. The new regulations, if implemented effectively, could help promote the recovery of many species by getting the incentives right — putting species not just on a federal list, but on a path to recovery.

This article appears as “The Danger of Being ‘Endangered’” in the September 30, 2019, print edition of National Review.

Shawn Regan is a research fellow at the Property and Environment Research Center, a nonprofit institute in Bozeman, Mont.

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