Posted on March 29, 2018 by Melinda E. Taylor
Depending on one’s political persuasion, the Endangered Species Act is either a glaring example of federal overreach or a critical safety net for scores of plants and animals that are at risk of extinction. Its impact is felt across the country in regulations that protect the spotted owl and salmon in the Pacific Northwest, the red-cockaded woodpecker in the Southeast, the Mojave Desert tortoise in the Southwest, and the whooping crane on the Gulf Coast.
Thanks to the act, over 220 species have avoided extinction and remain in the wild, including the bald eagle, brown pelican, American alligator, peregrine falcon, and northern right whale.
When Richard Nixon signed the law in 1973, few expected it to be as controversial as it eventually became. It was passed by Congress with little opposition, but by the 1990s, the Wise Use movement and extractive industries like forestry, mining, and oil and gas were bristling at the land use restrictions that accompanied federal decisions to list endangered species, while at the same time, environmental groups were filing lawsuits to force the federal government to use the law even more aggressively.
To varying degrees, the Clinton, Bush, and Obama administrations each adopted policies designed to reduce the conflicts between the warring sides and make it more appealing for private landowners to protect rare species. Those efforts were important, because 75% of endangered species occur on private land. Without the cooperation of landowners, their chances of rebounding were slim.
Because of incentive-based policies, over 130 conservation “banks” have been established on private lands to protect 70+ species, including the Florida panther, golden-cheeked warbler, American burying beetle, and gopher tortoise. Private investors, as well as ranchers, farmers, and forest owners, have invested millions of dollars in land management practices that help rare species in return for the right to sell “credits” to companies that destroy the species’ habitat elsewhere. Regulated industries benefit from a streamlined permitting process.
The Obama Administration crafted policies to clarify and improve the incentives. It also worked with states, ranchers, industries, and conservation groups to formulate ambitious, large-scale conservation plans intended to preclude the need for federal protection altogether and give more flexibility to state governments. Unfortunately, the Trump Administration appears determined to undermine these efforts.
On March 28, 2017 President Trump signed an Executive Order on Energy and Climate Change that reversed key parts of the Obama Administration’s agenda. The intent was to unleash fossil fuel development, especially on public lands, by relaxing environmental requirements applicable to oil, gas, and coal that were supposedly holding the industry back.
Among the several actions that the executive order rescinded was a relatively obscure Presidential Memorandum dated November 3, 2015 titled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” Unlike the other actions rescinded by the order (Power Sector Carbon Pollution Standards, Climate Change and National Security, and Preparing the United States for the Impacts of Climate Change), the 2015 Obama Memorandum did not address climate change or energy development.
Rather, it directed federal agencies to formulate policies that would encourage private investment in natural resource conservation, a goal that should be appealing to conservatives and liberals alike.
The 2015 Obama Presidential Memorandum had ordered agencies to refine their species mitigation programs, including conservation banking, to ensure they produced measurable outcomes. It required an increased level of transparency and consistency for the regulated industries and landowners. It was designed to level the playing field among conservation bankers and other providers of species mitigation. In short, it was intended to create conditions in which the free market could work efficiently for endangered species. It is hard to imagine a rational justification for abandoning this common sense policy; like a number of other environmental decisions by the Trump Administration, this one appears to be driven by the notion that, regardless of the merits, if the previous administration put the policy in place, it must be reversed.
The Endangered Species Act has become highly politicized, despite the fact that polls show a core of strong, unwavering public support for the law. Republicans in Congress have introduced dozens of bills in the last year that would undermine its protections. A far better approach, a win-win for private landowners and industry, would be to fine-tune the tools developed by previous administrations to harness the power of the marketplace and the willingness of private landowners to protect the nation’s natural heritage.