08.14.2019 0

Trump administration steps in to reform Endangered Species Act regs, but more work remains to be done to fix it


By Richard McCarty

Earlier this week, the Trump Administration announced some small changes to Endangered Species Act (ESA) regulations, which should limit the law’s negative impact on the economy. For example, the Administration is raising the standard for designating areas as critical habitat that are not currently inhabited by protected species. Additionally, the U.S. Fish and Wildlife Service (FWS) is rescinding a rule that generally treated threatened species as endangered species. The FWS is one of two agencies responsible for administering the ESA; the other agency, the National Marine Fisheries Service (NMFS), did not have such a rule so the FWS decision will bring the policies of the two agencies back into alignment. These regulatory actions are a good start, but Congress still needs to reform the failing law.

The Endangered Species Act of 1973 (ESA) was supposed to help keep species from going extinct and to help them recover; but left-wing environmental groups have used the law to sue the government demanding that species be listed as endangered or threatened so as to halt economic development. In the last Congress, Representative Tom McClintock (R-Calif.) introduced the Endangered Species Transparency and Reasonableness Act to reform the ESA. Among other things, the bill sought to improve the quality of data used by the government in its ESA decisions, to increase the government’s transparency, and to reduce the amount of tax dollars wasted on attorney’s fees. This commonsense bill should be reintroduced and passed.

To help the government make better decisions about whether to add or remove species from the List of Endangered and Threatened Wildlife, McClintock’s bill required the federal government to use data provided by state, local, and tribal governments. The ESA does not currently require this. Frequently, state, local, and tribal governments have access to data that the federal government does not.

There were two key transparency requirements in the reform bill. First of all, the FWS and the NMFS would have been required to publicly disclose the data they used to decide to list a species under the ESA or to delist it and remove ESA protections. While one might assume that the government would reveal this data, that did not always occur. Sometimes the government’s decision relied, at least in part, upon data from an unpublished manuscript that was not publicly available. Shockingly, on more than one occasion, the government refused to release the data until ordered to do so by a court; there is no excuse for this. Secondly, the bill required the government to disclose the amount of taxpayer funds it expended responding to ESA litigation, the number of full-time federal workers dealing with ESA lawsuits, and the amount of taxpayer funds spent paying the attorney’s fees of those who prevail in their ESA lawsuits or settle with the government.

Furthermore, McClintock’s bill would have saved taxpayer funds by capping the hourly rate of prevailing attorneys in ESA lawsuits. Currently, there is no cap which encourages left-wing groups to file ESA lawsuits against the government. This incentive should be reduced significantly.

On the issue of ESA lawsuits, Americans for Limited Government President Rick Manning had the following to say, “For too long, left-wing environmental groups have sued the government to try to get species listed under the Endangered Species Act to try to lock up vast areas of the country preventing any development. By so doing, they have killed countless jobs, destroyed property values, ruined whole towns, and shattered many dreams; but these left-wing groups could not care less.”

Manning went on to say, “Of course, these groups also file their lawsuits to get paid. If they win their cases or reach a favorable settlement with the government, they can claim attorney’s fees with which to fund their organizations – and more lawsuits against the government. It’s time to crack down on this outrageous abuse of taxpayer funds and stop enriching the leftists who are working so hard to wreck our good economy.”

In many ways, the ESA, which is nearly five decades old, is a failure. Over the decades, over 2,400 species have been listed under the ESA. Embarrassingly, fewer than 50 species have been delisted because their populations have recovered. In other words, less than two percent of listed species have recovered sufficiently to be delisted. The ESA was last updated by Congress three decades ago – before the internet was opened to the public –and needs major reform; the Endangered Species Transparency and Reasonableness Act would be a step in the right direction.

Richard McCarty is the Director of Research at Americans for Limited Government Foundation.

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