The Endangered Species Act at 50: Should the Act Become Extinct?

This week is the fiftieth anniversary of President Richard Nixon signing the Endangered Species Act (ESA) into law. This law is hailed as the most comprehensive law in preserving endangered species, which makes sense given how comprehensive it is in terms of the history of environmental conservation. As lauded as ESA is by environmentalists, I have to wonder if the ESA has been worth the cost. 

Speaking of costs, let us start the conversation there. The think-tank Competitive Enterprise Institute released a thorough report in 2018 on the many costs that come with the ESA, including the bureaucratic process costs (see GAO report here) and recovery costs. In terms of annual government costs, CEI put the number at $1.5 billion [in 2018 dollars]. CEI also illustrated various economic impact report of the ESA regulations, with annual costs ranging from $0.8 million to $113 million per species.   

The Congressional Research Service (CRS) brings up a series of other considerations in its ESA research paper, including the ESA's effects on private property and landowners, litigation related to the ESA, the cost of listing species and the resulting economic impacts of the ESA, and the delays in listing, delisting, and reclassification of species under the ESA (CRS, p. 53).

Some could argue that the cost the ESA is worthwhile, even in spite of the high price tag. I have to wonder if the benefits of the ESA exceed the cost. I analyzed the ESA seven years ago. Much like I did then, I bring up what should be viewed as the primary metric of success. What if you go with extinction rate? As of October 2020, 11 species out of 2,400+ species listed under the ESA went extinct (CRS, 2021, p. 53). In 2023, this figure increased to 21 species. In either case, it would mean that over 99 percent of species under the ESA did not go extinct. One could argue that keeping species alive is a worth goal.

However, the ESA does not simply exist to prevent extinction of species. A major provision in Section III of the ESA defines conservation as "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." In other words, the Act itself states that preventing extinction is not enough. To be deemed successful by the Act's own terms, there needs to be recovery of the species under the ESA. 

As of October 2021, 54 species under the ESA were delisted due to recovery. By this metric, this would mean that the ESA's success rate is under 3 percent. That high failure rate does not consider the possibility that there are reasons outside of the ESA that species were successfully recovered. For example, the EPA's DDT ban prior to the passage of the ESA was more likely to positively contribute to the bald eagle population. Another example: plants do not receive the same level of protection as animals under the ESA, yet nearly two dozen of these species delisted were plants. Since a species can be re-listed, there are three instances of duplicates, thereby bringing the count down to 51 species.

As we see from the research conducted by environmentalist think tank Property and Environment Research Center (PERC), the Fish and Wildlife Service (FWS) struggles to meet its recovery objectives by FWS' own assessments. 

The ESA is not a true success since most species remain on life support, much like it is not an example of success if human beings are perpetually dependent on welfare benefits. It might take more than 50 years to recover certain species, but the FSW data show that recovery progress under the ESA remains slow. Excess regulation in protecting species does not surprise me because it is something mainstream microeconomic theory would predict. If the government penalizes a certain behavior, there will be less of it. Who is being punished? Private landowners. 

As a report from PERC entitled A Field Guide for Wildlife Recovery illustrates, the ESA creates perverse incentives to preemptively destroy habitats before it attracts endangered species (PERC, p. 24). The ESA's provisions are exclusively punitive. They do nothing to encourage or reward habit restoration or other recovery efforts (PERC, p. 44). What I really enjoyed about reading this report is that suggested a myriad of alternatives to recover species, whether it is to streamline voluntary conservation programs for landowners, not limiting the states' flexibility to manage experimental populations, or compensate land owners for restoring habitat. 

Alternatively, privatization would work for fish and other species that could be farmed (e.g., the black-footed ferret). There is also the option of converting federal lands into fiduciary trusts. If you are going to reform the ESA, it needs to be done in a way that aligns the incentives of landowners with the interest of rare species. Otherwise, the ESA's punitive approach will continue to fail at its ultimate objective of recovering species.