Is the Endangered Species Act Itself Endangered?

Attacks on the ESA began in January when the Trump administration argued that tight regulations impede development and prevent the “energy domination” of America’s fossil fuels. Executive orders issued this year by Trump instruct federal agencies to rewrite ESA rules, including revisions that could accelerate fossil fuel projects by exempting them from standard environmental reviews.

Lawmakers such as Burgum and other conservatives argue the law is a failure, saying its rules are too rigid to incentivize recovery. Scientists and legal scholars say the real problem isn’t the ESA but that it is routinely underfunded and the application of the law has been erratic from one administration to the next.

“We continue to wait until species are in dire straits before we protect them,” David Wilcove, a professor of ecology and evolutionary biology at Princeton University, told Glacier Outpost. “That makes recovery far more difficult and expensive.”

A Record of Prevention, Not Just Recovery

At the same time, scientists and legal experts emphasize that the ESA has effectively prevented mass extinctions from taking place. Since 1973, just 26 species listed under the ESA have become extinct under federal protection. By comparison, at least 47 species are thought to have gone extinct while awaiting listing.

“The ESA works more like a critical care unit than a hotel,” Wilcove said. “It’s as though we built a great hospital but never funded enough doctors or equipment.”

The bald eagle is one of the most notable successes of the ESA. As DDT pesticide use and development decimated habitat in the 1960s, the once-common symbol of the United States had only a few hundred nesting pairs in the lower 48 states. Once DDT was banned and the bird given ESA protections in 1978, their numbers began to climb. By 2007 the bird was delisted with nearly 10,000 pairs.

Species such as the American alligator and Steller sea lion have also made significant recoveries from targeted protections.

The ESA’s reach on both public and private property has long made the law a point of contention. More than two-thirds of all listed species are found on private property, and 10 percent live only there.

“If you have an endangered species on your land, your ability to use that land is going to be limited and you can be prosecuted,” Jonathan Adler, a professor of environmental law at William & Mary, said. “That discourages landowners from cooperating.”

Research has shown that regulations can create what some call “perverse incentives.” One study on red-cockaded woodpeckers, a species dependent on mature pine trees, found logging occurred earlier in tracts where the woodpecker was known to live. Likely the reason, researchers concluded, was to avoid the federal regulations that would come with the bird’s critical habitat designation.

Over the decades, Congress has attempted to change the incentives for landowners by offering tax breaks and conservation easements that compensate landowners for protecting species habitats. But conservationists say these programs have dwindled in recent years.

For most of its history the Endangered Species Act enjoyed strong support from both parties. It has also been the subject of one of the most litigated environmental laws in American history. In recent years, multiple administrations have introduced provisions to scale back the ESA, only to have their successors reverse course when political power shifted.

Today many legal scholars are concerned that the Trump administration’s radical rollbacks, in combination with a conservative Supreme Court, may lead to permanent erosion of the ESA’s power. And a rapidly changing climate and ongoing habitat loss are only adding to the number of species on the brink of collapse.

Andrew Mergen, a former Fish and Wildlife Service lawyer who worked on ESA cases for three decades and now teaches at Harvard Law School, said Congress and conservationists should be focused on resources, not deregulation.

“The law has prevented extinctions, which is the stated goal of the law,” he said. “The real challenge is committing the funding and the political will to do the hard work of getting species back on the road to recovery, not dismantling the safety net that keeps them alive.”

Political fights over the ESA have overshadowed some hopeful news from recent months. In July, the U.S. Fish and Wildlife Service announced that the Roanoke logperch, a freshwater fish native to North Carolina, Virginia, and West Virginia, had recovered enough to be delisted as endangered. Burgum pointed to the fish as “proof” the ESA is no longer “Hotel California.”

Conservationists, however, note the recovery took more than three decades of dam removals, wetland restoration, and costly reintroduction efforts, most of which started long before Trump took office.

“The optimistic part,” Wilcove said, “is that we know how to save species when we invest in them. The question is whether we’ll make that commitment.”