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A Strange Standard for Success:

In announcing his reversal of the Bush Administration's Section 7 consultation rule under the Endangered Species Act, President Obama declared: "For more than three decades, the Endangered Species Act has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it, not weaken it." This is a strange thing to say, as the ESA has completely failed to recover threatened and endangered species. As I have noted here and elsewhere (see also here and here), the ESA has an abysmal record at recovering species.

Well over 1,800 species are listed as threatened and endangered under the ESA. As of this morning, when I checked on the FWS website, a total of 46 species have been "delisted" — that is have been removed from the list of threatened and endangered species. Of these, 26 were delisted because of an initial data error in the listing (FWS miscounted or misidentified a species) or due to extinction. (17 and 9 respectively.) Of the remaining species, many of these species' recovery have absolutely nothing to do with the Endangered Species Act. Several bird species, for example, were almost certainly helped by the de facto DDT ban, but this was done in 1972, a year before the ESA was enacted. Several other species, such as some species of Australian kangaroos and birds from Palau, are indeed doing better, but the ESA had no role with these species either. In the few instances in which the ESA might have helped, such as with the Aleutian Canada goose, the key actions had nothing to do with the Act's primary regulatory components. (The goose, for instance, was largely helped by predator control, not controls on private land.) In sum, it is not clear that there is a single species — not one of the 1,000-plus — that has been recovered due to the primary regulatory provisions of the Act. If this is President Obama's idea of "success," I don't want to know what constitutes a failure.

UPDATE: To be clear, as explained in some of the links above, I do not believe there is a single example — not one — of a species that was recovered due to the ESA's regulations of private land. But, some may wonder, is it at least helping species and preventing their extinction? Not likely. As I have blogged extensively (again at the links above) there is substantial evidence that, for many species, the ESA actually causes harm by discouraging habitat conservation and actually encouraging preemptive habitat destruction. It is impossible to prove what would, or would not, have occurred if we had a different species conservation law. But if, after 35 years, there are few-to-no examples of the ESA's regulations successfully recovering one of the 1600-plus listed species, and growing evidence that the law works against the sorts of measures — habitat conservation on private land — one can claim that there is no evidence of the law's "success," and ample reason to believe it is an utter failure.

SECOND UPDATE: Is it fair to use the number of recoveries as a measure of the ESA's success? Well, this is the standard the ESA itself establishes, and I think it is perfectly appropriate to measure the success or failure of a law based upon its own stated objectives. Section 2 of the Act explicitly states that the purpose of the Act is the "conservation" of endangered and threatened species. "Conservation," in turn, is explicitly defined in Section 3 to mean "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." So, conservation is recovery according to the express terms of the Act, and this is what the Act completely fails to do.

Related Posts (on one page):

  1. A Strange Standard for Success:
  2. Obama Suspends Bush ESA Rule:
Bob_R (mail):
You seem to be under the impression that the purpose of the ESA is to help endangered species rather than to gain regulatory political power for followers of the green religion. The ESA is a very successful Act.
3.4.2009 11:04am
therut (mail):
No one below age 30 will believe you. You will be outcast and shunned. Obama has drank the green kool-aid. Plus what are we going to tell the CHILDREN.
3.4.2009 11:06am
Randy R. (mail):
So if it isn't working as well as it should, then it should indeed be strengthened in order to save more species, right?
3.4.2009 11:14am
Suzy (mail):
Why is the only measure of success the "recovery" of species that were placed on the list, defined as moving them back off the list? I would venture that several other measures of success exist, so by restricting it to only one you get the outcome you were hoping for.
3.4.2009 11:19am
Matthew K:
You are aware of the giant hole in your logic, right? You've completely failed to consider whether more species that have been listed as threatened or endangered would have gone extinct absent the act. That strikes me as a very relevant criterion.
3.4.2009 11:19am
Bruce_M (mail) (www):
Like any liberal, or most americans for that matter, would question, let alone doubt, whether something called the "endangered species act" has helped to save endangered species.

Penn &Teller did a great show on the failure of the ESA. Not only does it not protect endangered species, it gives people an incentive to kill them (so their land is not constructively condemned to protect the 'endangered' animals found living there).
3.4.2009 11:22am
Joe T Guest:
So if it isn't working as well as it should, then it should indeed be strengthened in order to save more species, right?

Absolutely. Because lots more of what doesn't work, is always the solution to something that doesn't work.
3.4.2009 11:23am
Steve:
Seems to me that if an endangered species would be extinct but for the law, the fact that it's not extinct counts as a success in my book. I'm pretty sure there are many species that have dramatically increased in number (the gray wolf for one) even if they don't satisfy the technical definition of "recovered." The stated purposes of the ESA include protecting endangered species, not necessarily "recovering" them.
3.4.2009 11:25am
another anonVCfan:
You are aware of the giant hole in your logic, right? You've completely failed to consider whether more species that have been listed as threatened or endangered would have gone extinct absent the act.

Since that goal also has the bonus of being completely unmeasurable, it's almost certainly the one that Congress was aiming at (cf. "The stimulus will create or save 3 million jobs.").
3.4.2009 11:26am
Scape:
Okay, I almost don't want to defend the ESA, because as others have mentioned, yeah, it's not the best thing since sliced bread.

But really, Jonathan? You name one arbitrary criteria of success, and deem it a failure based on its inability to meet the one goal you define?

Well damn. Playing that game, I can't think of anything ever that succeeded.
3.4.2009 11:26am
Suzy (mail):
Matthew, even by his own standards, 18 species have been "recovered". How "many" of those were not helped by the ESA is anyone's guess, so let's assume that some of the 18 were helped. That means the ESA worked in those cases. How many other species did it protect, or improve the status of, even if they weren't moved off the list entirely? We don't know. Apparently that's not relevant. I don't find this a particular helpful way to measure the overall success or failure of the ESA. How would, say, scientists measure it?
3.4.2009 11:27am
Anderson (mail):
Okay, Adler's post was indeed stupid enough that its flaws were immediately apparent. I was afraid it would just be me.

Penn &Teller

Say, did they mention anything about what to do regarding Pakistan? Because they're my policy go-to team.

They *are* experts at making stuff vanish, however. No wonder the ESA annoys them.
3.4.2009 11:27am
J. Aldridge:
Theodore Roosevelt was much more successful at protecting species than ESA.
3.4.2009 11:31am
Angus:
We do in fact have a measure of success: how many endangered species have had their numbers stay stable or increase since being listed under the ESA. As it turns out, most have. You can find detailed reports at http://www.esasuccess.org/reports/

We know what was happening to these species before ESA -- they were on the path to extinction, which is why they got listed in the first place.

As for Adler's measure of success...the average recovery plan from a small population to one large enough to delist is estimated to take 42 years.

One extensive study looked at the results in 8 sample states in the relatively high density N.E. United States. It was 100% successful in preventing extinction, and 93% successful in keeping populations stable or growing.
3.4.2009 11:38am
Steve:
Prof. Adler usually has something interesting to say about environmental issues (this post may be an exception), but the comment threads are invariably the most valueless on the VC.

On the gun threads, the "shrillest" defenders of the Second Amendment often tend to be experts on guns and have many practical insights to contribute.

Even on the Israel threads, where there's definitely more heat than light, some of the people with strong feelings are also well-informed about the history of the region and have facts to offer to the less-informed.

But for some reason, the environmental threads are never like that. They're just a gathering place for people to come up with as many Al Gore insults as they can. The only way you'd learn something is if you failed to realize that Nixon signed the EPA "to gain regulatory political power for followers of the green religion."
3.4.2009 11:39am
Randy R. (mail):
"Absolutely. Because lots more of what doesn't work, is always the solution to something that doesn't work."

Then I invite you to come up with a scheme that will work, or at least work better than the current ESA.
3.4.2009 11:49am
Houston Lawyer:
If you paid landowners for preserving threatened species found on their land instead of effectively condemning their land if such an animal is found, they would have an incentive to preserve a species. As long as you want to defend a species by placing the cost of such preservation on just a few people, that policy will fail. But if your agenda is to maximize state power, stick with the current plan.
3.4.2009 11:59am
CDU (mail) (www):
Then I invite you to come up with a scheme that will work, or at least work better than the current ESA.


Have the government buy critical habitat outright.
3.4.2009 12:00pm
A. Zarkov (mail):
Randy R.

So if it isn't working as well as it should, then it should indeed be strengthened in order to save more species, right?

You're missing the point. Obama, according to Adler, is not being straight with the American people. He's telling us that ESA has been successful when it has not. Whether we should make ESA stronger or not is another issue. Now if you think Adler is wrong and Obama is right about the success of ESA then tell us why Adler is wrong instead of trying to deflect the thread in a vain attempt to bolster The Anointed One.
3.4.2009 12:05pm
AlanW (mail):
The preferred libertarian alternative is that the government should compensate land owners for the taking involved in species protection. For what it's worth, I think policy could work, with appropriate safeguards and resources.

For the government to actually pursue this sort of policy would require vast new sources of revenue that libertarians would oppose and, in exercising this financial power, the government would have just as intrusive an effect on people and property as the current set-up is.

And, yeah, I get that this is the point to libertarians: If the real costs of the ESA were clearly revealed, no one would support it. But if your best suggestion for fixing the problem is obviously unworkable, then you really have nothing to offer besides saying, "Let them go extinct." And if that's all you have to offer, it's no wonder no one is paying attention.
3.4.2009 12:19pm
Suzy (mail):
The "update" above is not helpful because it simply doesn't ring true. I am not going to pretend to any expertise in this area, I'm just telling you what I know from the area where I live. Animals like the bald eagle, puma, wolf, ferret, and whooping crane that were in danger now have stabilized or recovering populations. This is a good thing, right? I don't know how much the ESA did or did not help with these species, but it makes me rather suspicious of this claim of total failure.

I don't know of anyone whose farmland has been effectively "condemned" despite sightings of these animals--where are we getting that idea? I do know of highway projects that had to pay into a mitigation fund when they wanted to destroy wetlands used by the whooping crane. That funding hasn't stopped any highway development projects--they merely pay to build some additional wetlands on adjacent acres.

That said, I do agree completely with Houston lawyer that we ought to be open to other methods of encouraging people to preserve the species on their land. However, in the absence of such a plan, I don't know what's so bad about restoring the ESA.
3.4.2009 12:19pm
Angus:
In his updates, Adler is still missing the points.

1. There are numerous documented successes of the ESA, and I directed people to a website that details those successes.

2. The average proposed recovery program plan is for 42 years. Some are less, some are far longer. Given that the Act itself is only 36 years old, and most listings only occurred in the last 25 years, all we can judge by at this time is progress toward the goal.

If Adler wants to argue that some alternative scheme would work better, fine. But claiming that the ESA has had zero successes is just plain crazy.
3.4.2009 12:21pm
Suzy (mail):
The second update is also unhelpful because it simply reiterates the argument: the success of an ongoing process can be measured only by the outcome at a particular point at the end of the process. However, the process may well take longer to get to that endpoint than we have allowed for, in the measurement. In addition, and most importantly, why would we refuse to look at other markers along the way? Is there improvement anywhere in the process? Or nothing across the board?

I doubt that scientists would measure success in this area only by looking at whether a complete restoration of the species had taken place. Is there any evidence whatsoever that they do, or that they should? This quote in the second update is not evidence of that sort.
3.4.2009 12:24pm
Jonathan H. Adler (mail) (www):
Angus -

The Center for Biological Diversity study upon which you rely is not particularly credible. Among other things, it attributes species population improvements that are due to other factors to the ESA. So, for example, bald eagle and peregrine falcon populations are definitely doing better. This is a very good thing. Why are they doing better? Because DDT was banned in 1972, one year before the ESA was enacted. It also relies very heavily on the improvement of whale populations, which may well be attributable to the Marine Mammal Protection Act and international limitations on whaling, but not to the ESA. And so on.

The ESA can, and does sometimes, induce changes in federal land management that is helpful to listed species. It also sometimes encourages predator control or other measures that can help (as it did with the goose). But most species need private land for some or all of their habitat, and we don't have examples of those successes, and yet we do (as cited in the papers I linked above) have increasing evidence that the ESA actually leads to habitat loss on private land.

JHA
3.4.2009 12:30pm
Michelle Dulak Thomson (mail):
Houston Lawyer's point is a good one. If the discovery of an endangered or threatened species living on a property causes the value of the property to plummet, some people will do their best to make sure the discovery doesn't happen, either by killing the species wherever they find it, or else by preemptively altering the habitat so as to make it inhospitable before anyone checks.

If land that supported rare species thereby became more valuable, it would be a different story, yes? Heck, it would work even in urban areas. You could offer a tax credit to the owner of any skyscraper that had a successfully nesting pair of peregrines attached to it.

Incidentally, it's amazing what can count as rare-species habitat. I know a woman whose tiny (12 square feet of surface, maybe) backyard fish pond has become habitat for the California red-legged frog, a threatened species. On the minus side, she's not allowed to remove the frogs or alter the pond, though the local herons have been doing the former assiduously. On the plus side, when her lawyer-neighbor complains about the frogs' loud evening songs, she can truthfully say that her pond is protected threatened-species habitat, and must not be disturbed.
3.4.2009 12:38pm
mf24:
when her lawyer-neighbor complains about the frogs' loud evening songs, she can truthfully say that her pond is protected threatened-species habitat, and must not be disturbed.


Well, I'm sold. If it disturbs even one lawyer's rest, it's a good law in my book.
3.4.2009 12:45pm
David M. Nieporent (www):
But if your best suggestion for fixing the problem is obviously unworkable, then you really have nothing to offer besides saying, "Let them go extinct." And if that's all you have to offer, it's no wonder no one is paying attention.
Remember, kids: religious conservatives who oppose teaching evolution = evil. Liberals who oppose actual evolution = noble.
3.4.2009 12:47pm
Sunshine is good:
The tax credit to save or protect a species would be weighed against the potential revenue available from destroying the habitat. So, you have the magic frog pond right where you'd like to put up a gas station. You ask the govt - how much to protect the frogs? Govt says "We'll give you a tax credit of 1000 if the frogs are protected." The owner says to himself "I'd make that 1000 in one week if I could add some more pumps where that pond is now." Isn't the tax credit idea just as bad as subsidizing farmers to NOT grow a crop? How is that a better idea than punitive measures if you harm the protected habitats?
3.4.2009 12:50pm
Bill Twist:

Then I invite you to come up with a scheme that will work, or at least work better than the current ESA.


OK. Hunt them.

That might at first glance seem paradoxical, but it really isn't.

Managed and closely monitored sport hunting can actually be quite beneficial to a species. It provides an economic incentive to assure the continuing survival of the species: After all, sport hunters don't want to shoot themselves out of their hobby.

Notice I used the phrase "sport hunters", though: This is different from market hunting and subsistence hunting, which has been responsible for extinctions or near extinctions in the past and in the present time.

Granted, this won't work for a lot of species, and there is a lower bound for a population below which there shouldn't be any hunting at all, but managed sport hunting has helped to bring back deer, moose, wild turkeys, and bear populations from all-time lows 100 years ago to new highs. I shouldn't need to mention that sport hunting organizations like Ducks Unlimited spends millions of dollars to preserve and reclaim habitat every year.

It's not a tool that is useful in every situation, but it has proved it's worth and could be a valuable part of conservation efforts if used intelligently.
3.4.2009 12:55pm
Dan7:
Prof. Adler,

It's totally misleading to focus, as you do, on the ESA's regulation of private land. As far as I can see, neither Obama's statement nor the Section 7 consultation requirement are directed specifically at regulation of private land.

You yourself concede that "The ESA can, and does sometimes, induce changes in federal land management that is helpful to listed species." The consultation requirement, since it places requirements on other federal agencies (not on private individuals) probably has more impact on federal land management than private land management.

To argue, as your post does, that Obama was wrong because the ESA includes *harmful* restrictions on *private* land, is somewhat disingenuous as a response to Obama's support of a regulation that primarily results in what you admit are *helpful* regulations on *federal* land.
3.4.2009 12:59pm
Robin (mail):
I thought evolution was a good thing? The notion that we should have species stasis is contrary to the principles of evolution. No?

Helping threatened species would best be done by encouraging landowners to enhance habitat, not threatening to disallow the use of their land. Species management through game laws is enough to accomplish what has been done by ESA for species such as bald eagle, wild turkey, wolves, elk, etc.

ESA does have a significant effect on the number of wildlife biologists needed by the government. This may skew the opinion of government biologists when asked about its effectiveness.
3.4.2009 1:00pm
thirdeblue (mail):
AlanW distilled the argument down the simplest. The best, fairest, most productive option is not revenue neutral and will cost the U.S. Government more money to implement although it would probably yield better results. The same people who would criticize the ESA for being unproductive would generally be opposed to a growth in the government's budget. So, you are let wondering if people who criticize the ESA are arguing in good faith. "I'm against the best option because it costs too much. I'm against the next best option because it doesn't work as well." The only option left, it would seem, is to say "Let'em go extinct." Unless you're willing to massively increase the size of the budget for enforcing the ESA or have some good revenue neutral changes to policy, I'm just going to assume you're a crank. A stupid, selfish, near-sighted crank.
3.4.2009 1:03pm
Scape:
Bill Twist -- for certain species, the ones that have enough where shooting a handful won't endanger survival and are actually attractive to hunters as game, that's sounds to me like a good way of doing it. Unfortunately, most endangered species just aren't the type you can mount on your wall.

I remember a fairly recent article (maybe NYT?) with a similar idea: save endangered species by encouraging people to eat them. That might cover a few more species than hunting alone.

Adler's lawyer-disturbing frogs might still be in trouble, though.
3.4.2009 1:04pm
Anderson (mail):
Liberals who oppose actual evolution = noble.

Wow, making Adler's post look smart.

Evolution is not a *value system*. Whether a species evolves, maintains, or goes under is not a *value judgment*.

Humans are the ones who create value, and if we find a species valuable, then we needn't blush at trying to preserve it.

Whether we can do so effectively, without bad ecological side-effects, is an interesting and fact-dependent question. (Cf. "human evolution," for that matter.)

"Opposing actual evolution," OTOH, is just a dumb thing to say. Or perhaps Nieporent was just trying to be cute - I have that weakness myself.
3.4.2009 1:31pm
Jonathan H. Adler (mail) (www):
Dan7 --

The reason I wrote two separate posts is because I think the question of whether Obama's decision on the Section 7 regs is a good or bad idea is separate from the accuracy his statement alleging the ESA, as a whole, has been successful.

That said, it is false to say that Section 7 "primarily results in what you admit are *helpful* regulations on *federal* land." Section 7 applies to all actions undertaken, permitted or funded by federal agencies, so it applies to many things that do not occur on federal land.

JHA
3.4.2009 1:34pm
David M. Nieporent (www):
Humans are the ones who create value, and if we find a species valuable, then we needn't blush at trying to preserve it.
Perhaps not, but the ESA isn't based on the notion that we've found a species valuable and want to preserve it to exploit that value. The ESA is based on the notion that we want to preserve all species, regardless of the cost, regardless of the value, for no other reason than the notion that extinction is inherently bad.
3.4.2009 1:45pm
David M. Nieporent (www):
AlanW distilled the argument down the simplest. The best, fairest, most productive option is not revenue neutral and will cost the U.S. Government more money to implement although it would probably yield better results. The same people who would criticize the ESA for being unproductive would generally be opposed to a growth in the government's budget. So, you are let wondering if people who criticize the ESA are arguing in good faith. "I'm against the best option because it costs too much. I'm against the next best option because it doesn't work as well." The only option left, it would seem, is to say "Let'em go extinct."
As opposed to, "I'm against the best option, because it would allow everyone to see how much this costs and then they wouldn't support it. I'm for this second best option even though it costs the same amount because it imposes the costs directly on only a few people, hiding those costs from the public."
Unless you're willing to massively increase the size of the budget for enforcing the ESA or have some good revenue neutral changes to policy, I'm just going to assume you're a crank. A stupid, selfish, near-sighted crank.
Wanting to keep your own money is not "selfish." Wanting to take other people's money from them by force to spend on one's own hobbies is.

There's nothing either "stupid" or "selfish" about extinction. I'm pretty glad that millions of species have gone extinct over the history of the planet, thus enabling people to evolve. Even if some of those people are socialists.
3.4.2009 1:48pm
Steve:
If hunting a species to extinction is part of the evolutionary process, then a societal choice not to hunt it to extinction is also part of the evolutionary process. Personally I wouldn't include either, but it seems like the sort of mindset that helps some people sleep better at night.
3.4.2009 1:51pm
Michelle Dulak Thomson (mail):
Sunshine is good,

The tax credit to save or protect a species would be weighed against the potential revenue available from destroying the habitat. So, you have the magic frog pond right where you'd like to put up a gas station. You ask the govt - how much to protect the frogs? Govt says "We'll give you a tax credit of 1000 if the frogs are protected." The owner says to himself "I'd make that 1000 in one week if I could add some more pumps where that pond is now."

I mustn't have been clear about the actual story. The "magic frog pond" is a koi pond that didn't exist before the land was developed and the house built on it. The lady in question put it in herself, and since the house is built on a rather steep slope, I feel confident in asserting that there wasn't any standing water there before.

But, more generally — why shouldn't the government recompense the owner, if the government values the species more than the owner does?

Isn't the tax credit idea just as bad as subsidizing farmers to NOT grow a crop? How is that a better idea than punitive measures if you harm the protected habitats?

It's a "better idea" because your "punitive measures" allow the government to think it is protecting threatened wildlife at no cost, whereas actually it is (a) imposing a cost, to be borne by those whose land happens to harbor rare species; and (b) making damned sure that anyone in future who finds a rare species on his/her land will follow the already popular policy of "shoot, shovel, shut up." As someone who wants rare species protected, I think it would make a hell of a lot more sense to make harboring rare species valuable.
3.4.2009 1:53pm
Anderson (mail):
Speaking of endangered species, you think businesses in the U.S. have it bad?

Alcoa, the biggest aluminum company in the country, encountered two problems peculiar to Iceland when, in 2004, it set about erecting its giant smelting plant. The first was the so-called "hidden people" -- or, to put it more plainly, elves -- in whom some large number of Icelanders, steeped long and thoroughly in their rich folkloric culture, sincerely believe. Before Alcoa could build its smelter it had to defer to a government expert to scour the enclosed plant site and certify that no elves were on or under it. It was a delicate corporate situation, an Alcoa spokesman told me, because they had to pay hard cash to declare the site elf-free but, as he put it, "we couldn't as a company be in a position of acknowledging the existence of hidden people."

Given that the elven population hasn't recovered, I think we can declare Iceland's efforts a miserable failure.

Of course, I also wonder about the identity of that "government agent" and whether Alcoa was able to track him down later, or paid him in cash.
3.4.2009 2:05pm
Fury:
Jonathan Adler:

As I have blogged extensively (again at the links above) there is substantial evidence that, for many species, the ESA actually causes harm by discouraging habitat conservation and actually encouraging preemptive habitat destruction. It is impossible to prove what would, or would not, have occurred if we had a different species conservation law.

Sadly, I agree with this. I completed a research project on the history of a unique but not endangered population of a particular species. In gathering information, I was advised by a state wildlife biologist that it was his judgment that this population was indeed a Distinct Population Segment which may qualify for inclusion under the ESA.

Setting aside issues on whether the ESA petition is sound, when discussing this information with my professor, I decided to not even make mention of the ESA possibility. Why? Because based on who currently owns and accesses the public land where this unique population exists, there's a high probability (in my opinion and also the state wildlife biologist I interviewed) that the unique population of this species would be eradicated if an ESA petition was submitted.

If and when an ESA petition is submitted, it will be done with as much media fanfare as possible to prevent the shoot/shovel/shut up approach to endangered species. And like it or not, the ESA itself is one of the prime motivators of the S/S/S approach, as many conclude that the ESA is a series of punitive administrative actions which reduces the value of a landowner's land. It may not be right, but that is the perception.
3.4.2009 2:18pm
byomtov (mail):
Jonathan,

I think the fnal sentence of your post:

"So, conservation is recovery according to the express terms of the Act, and this is what the Act completely fails to do."

completely ignores Angus' comment that:

The average proposed recovery program plan is for 42 years. Some are less, some are far longer. Given that the Act itself is only 36 years old, and most listings only occurred in the last 25 years, all we can judge by at this time is progress toward the goal.

It sometimes takes an unavoidable length of time to achieve an objective. Not reaching the goal earlier is not failure.
3.4.2009 2:25pm
Suzy (mail):

So, for example, bald eagle and peregrine falcon populations are definitely doing better. This is a very good thing. Why are they doing better? Because DDT was banned in 1972, one year before the ESA was enacted.


Eagle populations did not just decline because of DDT, and they did not return quickly after DDT was banned. Part of this was probably that the parents couldn't produce viable eggs after DDT, but it was also because their traditional habitats were being lost. Restoration had to involve habitat preservation. This is also true for the whooping cranes. In short, if bird species are helped by banning DDT, that doesn't mean that habitat preservation is unimportant in their restoration.

Should the approach to preserving habitats on private land be different? Maybe it should, but the point above was that the ESA is a failure in general. The evidence for that is extremely insufficient.

The better argument here is that some land-owners engage in pre-emptive habitat destruction, because they perceive that it's a financial negative rather than positive. However, we've tried to mitigate against this problem by allowing development that could impact species to occur only if permission is received. All sorts of conservation plans have been implemented that allow development to occur. This is probably less well-publicized than the outcry against the ESA, so then what actions are really responsible for the pre-emptive destruction?

If this is the complaint against the ESA, though, why not just say "let's make the ESA less punitive and more about rewarding good behavior". Well, to some extent it already does that, and there comes a point when a landowner isn't going to be easily persuaded not to shoot the wolves or cranes even if other incentive are provided. Do you just let the wolves and cranes die, then?
3.4.2009 2:55pm
aces:

Before Alcoa could build its smelter it had to defer to a government expert to scour the enclosed plant site and certify that no elves were on or under it.


I guess that puts the kibosh on Keebler's expansion plans.
3.4.2009 2:58pm
Anderson (mail):
I guess that puts the kibosh on Keebler's expansion plans.

Actually, I think about 10% of Iceland's government contracts are set aside for elves.
3.4.2009 3:21pm
Michelle Dulak Thomson (mail):
Suzy,

If this is the complaint against the ESA, though, why not just say "let's make the ESA less punitive and more about rewarding good behavior". Well, to some extent it already does that, and there comes a point when a landowner isn't going to be easily persuaded not to shoot the wolves or cranes even if other incentive are provided. Do you just let the wolves and cranes die, then?

Well, no; you buy the land outright. Seriously, isn't that what we should be doing anyway, if in practice we're dedicating the land to a public purpose? We aren't generally talking about huge amounts of money — at least, not by the standards set in the last month.

And this is a case in which eminent domain might make sense — I mean, as the land was to be used for an avowedly public purpose (rather than handed to the developer of the local government's choice), and no other land would be suitable to the same purpose ... I would rather see negotiated and voluntary buyouts, obviously, but transferring the property to the government for something more than what it cost you is a better deal than having to hold onto it with criminal sanctions against any uses that might make you money.
3.4.2009 3:23pm
AlanfromOntario:
Just so we can evaluate Mr. Adler's credibility, I wonder if he'd be kind enough to mention what corporations and industries fund him directly or indirectly?

I am going to guess that he isn't receiving much financial support from any particular endangered species.
3.4.2009 3:35pm
Jonathan H. Adler (mail) (www):
Just so we can evaluate Mr. Adler's credibility, I wonder if he'd be kind enough to mention what corporations and industries fund him directly or indirectly?

Directly: None (but I'm happy to take it).

Indirectly: Beats me. I have no idea what corporations are responsible for general contributions to my universit, contribute to think tanks with which I've done recent work, or purchase advertising on this blog, nor do I care. Such concerns do not affect what I write about or work on (let alone the conclusions I reach or positions I advocate).

All that said, if Alan or other readers know of corporations who would like to fund my work, I'd be happy to accept such funding, and while I have never done any consulting on endangered species issues, I'd be happy to, if you (or others) have some companies in mind.

JHA
3.4.2009 3:48pm
Michelle Dulak Thomson (mail):
AlanfromOntario,

I am going to guess that [Adler] isn't receiving much financial support from any particular endangered species.

I am going to guess that neither are you, or indeed anyone else commenting here.
3.4.2009 3:48pm
Suzy (mail):
We do already purchase land for habitat under the ESA, right? We're also not "dedicating the land to a public purpose" unless the presence of an endangered species or its habitat destroys the property owner's purposes for the land (I realize issues arise about how to judge this). It doesn't often get to that point, though, because alternative conservation plans or permits for takings are more often pursued.

I'm just speculating about what happens when we try to move to a rewards-based approach for property owners, and the rewards aren't compelling for whatever reason. If we reject the ESA as a whole, we're rejecting a whole group of techniques including land purchase. Why not simply reform it to maximize flexible options for the private owners, on the assumption that this also helps achieve the ESA's goal of preserving species by discouraging unlawful destruction? Still, there comes a point where the interests of the species are harmed, and if we value them, we have to be willing to act. At bottom, there's great disagreement about how much to value them.
3.4.2009 3:56pm
Lib (mail):
The ESA is based on the notion that we want to preserve all species, regardless of the cost, regardless of the value, for no other reason than the notion that extinction is inherently bad.

Well, except for species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man.

This exemption seems rather arrogant (to say nothing of unprincipled) to me. If a species is so powerful as to pose an overwhelming and overriding risk to man even when its population and/or range is so limited as to meet other criteria for threatened or endangered, shouldn't we just declare it the evolutionary winner in the man vs. Insecta contest?
3.4.2009 3:59pm
EIDE_Interface (mail):
Wow. One crime after another. When will BushCo be frog marched en masse while Emperor Obama looks on?
3.4.2009 4:03pm
Michelle Dulak Thomson (mail):
Suzy,

As I understand it, whatever you planned to do with your land, it is going to be much more cumbersome, expensive, and time-consuming if the land is adjudged to be the habitat of an endangered species. Yes, it might turn out that you can do what you intended to do, without harming the habitat; but proving it is itself going to cost you, in time and money both.

Still, there comes a point where the interests of the species are harmed, and if we value them, we have to be willing to act.

No, if we value them, we have to be willing to pay. Seriously, why shouldn't we? If someone has to maintain a koi pond because a rare frog has taken up residence there, isn't she maintaining it as a kind of public service?
3.4.2009 4:20pm
AlanfromOntario:

I have no idea what corporations are responsible for general contributions to my universit, contribute to think tanks with which I've done recent work, or purchase advertising on this blog, nor do I care.

I guess that would make you a remarkably incurious fellow. I mean, I like to have a general idea of who is putting money in my pocket.

If you still have any involvement at the Competitive Enterprise Institute, where you worked for several years, you might want to know that they are funded by folks like Exxon Mobile.

I guess you are just the beneficiary of a lucky coincidence their views on "protecting" the environment square so neatly with theirs.
3.4.2009 4:40pm
ChrisTS (mail):
Suzy: the success of an ongoing process can be measured only by the outcome at a particular point at the end of the process.

And this is a terrible standard, as you note. It makes me think of the earliest Stoics, who claimed that 'a many drowning 1 foot from shore is drowning as much as a man 100 feet from shore.' Although the Stocis had a specific - and self-defeating - moral view in mind, my view has always been. 'Ok; let's come back in 20 minutes and see how they're doing.'
3.4.2009 4:43pm
micdeniro (mail):
I came to the law late, after a career as a science professor. During law school, I was amazed at how innumerate my classmates were.

Did anyone else here notice this, from the original post?


Of these, 28 were delisted because of an initial data error in the listing (FWS miscounted or misidentified a species) or due to extinction. (17 and 9 respectively.)
3.4.2009 5:03pm
Jonathan H. Adler (mail) (www):
Angus, byomtov --

The data on recovery times (like the other data Angus has cited) is not for all listed species under the Act. Rather, this data is from a CBD study on the northeastern United States. This is hardly representative of the ESA and listed species as a whole (as the CBD well knows, which I suspect is the reason they based their study on that region). Moreover, as I've already noted, a disproportionate number of species from the study were DDT birds and whales, making it an even less reliable guide to ESA implementation generally.

All that said, even if the average recovery plan time necessary was 42 years for all listed species (which, again is not what the CBD study purports to show), and we ignore the fact that many species don't even have recovery plans, unless we assume a very narrow distribution of necessary recovery times, we'd expect more than a handful of over 1,600 listed species to have recovered -- yet that is the best case one can make based upon the FWS' own data.

Suzy --

Your posts seem to assume that obtaining incidental take permits under the ESA is a cheap and quick process. This is not the case at all. When private land becomes subject to such requirements, it loses vale, which is why several empirical studies have found that private landowners engage in preemptive habitat destruction in response to the threat of species listings.

JHA
3.4.2009 5:20pm
Jonathan H. Adler (mail) (www):
micdeniro --

Thanks for catching the typo. The correct number is 26.

JHA
3.4.2009 5:24pm
Suzy (mail):

As I understand it, whatever you planned to do with your land, it is going to be much more cumbersome, expensive, and time-consuming if the land is adjudged to be the habitat of an endangered species.


That's only in the cases where the interests of preserving the species conflict with your plans. Luckily, it doesn't always work that way. But if we decide to start handing out payments every time a whooping crane lands on someone's farm, we'll quickly find that an impractical option because everyone will want to get paid, regardless of their plans for the land.


No, if we value them, we have to be willing to pay.


My point is that we already do sometimes pay to purchase habitat, as one of the tools used, but this isn't enough. Sometimes the owner really would just rather shoot the puma. Sometimes it's more effective (and cheaper) to simply allow a fence to be built, or provide mitigation for adding fill to the land.

In response to Professor Adler's comment, I realize it's not a cheap and easy process to get permits. But what's the alternative? Trying to make the options for owners flexible and well-known, and offering incentives where effective, seems better to me than dismissing the whole plan as a failure. Again, why are we only measuring the endpoint of total recovery as the marker of success?
3.4.2009 5:34pm
R Gould-Saltman (mail):
I've got to agree with Steve as to the tone of comments in response to Jonathan Adler's posts having gone all wahoonie-shaped recently.
I've also resolved, over in the comments on another leaning-conservative blog, to respond to any references to Obama by snarky nickname, with a reference to either George W., or another Republican, by a snarky nickname. I'll do so twice if the comment including the reference is in response to an original post. Since Adler's original post did in fact have something to do with an Obama pronouncement, the current thread only rates one "Chimpy McFlightsuit".
3.4.2009 5:43pm
Jonathan H. Adler (mail) (www):
AlanfromOntario --

I left CEI in 2000. I've written one thing for them since (a book chapter, for a book project funded by private foundations). I also disagree with my former colleagues on various issues. Among other things, I support a revenue-eutral carbon tax. The folks at CEI do not.

But who cares if they (used to) get money from Exxon Mobil? In my experience, CEI received money from corporations and others that liked CEI's positions, but CEI did not alter its positions to suit corporate (or other) contributors.

Of course, it's always easier to try and delegitimize a group or individual with ad hominems about who does or does not pay their salary than to address their arguments, so I don't expect stuff like this to go away.

JHA
3.4.2009 5:55pm
Michelle Dulak Thomson (mail):
Suzy,

[complying with the ESA is "cumbersome, expensive, time-consuming"] only in the cases where the interests of preserving the species conflict with your plans. Luckily, it doesn't always work that way.

No? You mean that you can show that your plans don't present any risk to a species found on the land without expending any time, effort, or money? That would be so only if the law had no teeth at all.

But if we decide to start handing out payments every time a whooping crane lands on someone's farm, we'll quickly find that an impractical option because everyone will want to get paid, regardless of their plans for the land.

Whereas if "every time a whooping crane lands on someone's farm," we merely enjoin the farmer from making the land less hospitable to cranes, no one has to pay anything. Got it.

Look, I can see that if we start compensating people for preserving the habitat of endangered species, some people will be compensated merely for doing what they intended to do anyway. But isn't that better than making the presence of an endangered species on your land a massive liability?
3.4.2009 6:48pm
R Gould-Saltman (mail):
Whoops; too fast with the "enter" key; shoulda been:

I've also resolved, over in the comments on another leaning-conservative blog, to respond to any references to Obama by snarky nickname, with a reference to either George W., or another Republican, by a snarky nickname. I'll do so twice if the comment including the reference is in response to an original post having nothing in particular to do with Obama. Since Adler's original post did in fact have something to do with an Obama pronouncement, the current thread only rates one "Chimpy McFlightsuit".
3.4.2009 6:58pm
Duracomm:
AlanfromOntario,

I see you agree with Jonathan Adler the the ESA has been an utter failure when it comes to recovering endangered species.

Given that you have no arguments against what he said.
3.4.2009 9:58pm
MatthewM (mail):
This is of a piece with Obama's statement that 20 years ago we had good relationships with all the countries in the Middle East. His views are a mixture of liberal cant and ignorance.
3.5.2009 2:00am
Brian Mac:

If you still have any involvement at the Competitive Enterprise Institute, where you worked for several years, you might want to know that they are funded by folks like Exxon Mobile.

Also, there's the small matter of the Omaha Steaks banner to the side of this thread, which perhaps explains Adler's silence on bovine welfare issues.
3.5.2009 8:07am
Ryan Waxx (mail):

Jonathan H. Adler (mail) (www):
Angus, byomtov --

The data on recovery times (like the other data Angus has cited) is not for all listed species under the Act. Rather, this data is from a CBD study on the northeastern United States. This is hardly representative of the ESA and listed species as a whole...



My god, you mean that insanely high 1,800 species figure was for merely a fraction of the country?
3.5.2009 12:04pm
Harry Eagar (mail):
'If you paid landowners for preserving threatened species found on their land instead of effectively condemning their land if such an animal is found, they would have an incentive to preserve a species.'

Actually, we already do that. (Example, the Blackburn's sphinx moth)

It's often easier and cheaper to kill them, and market forces then dictate killing them.

If ESA marks a failure, I would say it is a failure of market economics.

The case of the northern elephant seal is instructive. It was thought to be extinct around 1900, but by 1912 8 seals were discovered. They had high scarcity value, so they were killed and sold.

Turns out, those weren't the last 8 northern elephant seals, but if they had been, market economics would have ensured their destruction.

Another fine example of libertarianism at work. (How am I doin', steve?)
3.5.2009 12:31pm
Suzy (mail):

No? You mean that you can show that your plans don't present any risk to a species found on the land without expending any time, effort, or money? That would be so only if the law had no teeth at all.


I mean that most of the time, it does not even become an issue. However, if the govt. was simply in the business of handing out payments as the policy, pretty soon amazing numbers of people would have plans requiring them to get paid to preserve an endangered species. That koi pond gal would have to lock up her frogs at night.

This doesn't mean that compensation can't be part of the solution, but it can't be the only tool. Sometimes, maybe you need to prevent people from destroying habitat, if you value preserving the species highly enough as a public good. It's rare that the conflict creates a "massive liability", isn't it? In the case of whooping cranes, for example, we don't want people shooting them or harassing them. Not a terrible burden. We also don't want people filling in wetlands, but that's for several reasons not least of which is flood control, a problem the landowner already has to accept in virtue of having land in that location. Maybe the landowner is going to have to pay to put up a fence, rather than shooting the intruding animal. Well, that's the price of doing business there.

On principle, the fact that we choose to preserve species as a public benefit does not mean that any particular individual needs to be completely shielded from bearing extra costs for that preservation. There's a difficulty in determining a libertarian approach here, if you will. Is it the landowner's tough luck for choosing to farm on a wetland, or is it all the responsibility of the govt. that chooses preservation as a public good? Species preservation may not always be worth it--I'm certainly open to that idea.
3.5.2009 12:58pm
Bill Twist:
Harry Eagar:


The case of the northern elephant seal is instructive. It was thought to be extinct around 1900, but by 1912 8 seals were discovered. They had high scarcity value, so they were killed and sold.

Turns out, those weren't the last 8 northern elephant seals, but if they had been, market economics would have ensured their destruction.


Market hunting at work, yet again.

Oh, and Scape: People hunt frogs, too.
3.5.2009 3:48pm
Michelle Dulak Thomson (mail):
Suzy,

[I]f the govt. was simply in the business of handing out payments as the policy, pretty soon amazing numbers of people would have plans requiring them to get paid to preserve an endangered species. That koi pond gal would have to lock up her frogs at night.

Hell, you say that like it's a bad thing. Right now, people falling all over one another trying to find ways of preserving endangered species isn't high on our list of problems.

Might it get expensive? Sure; but —

(a) As you say yourself, it's a public good; and

(b) The nice thing about monetary incentives is that you can adjust the price.
3.5.2009 4:44pm
markm (mail):
Let me make the moral position of those opposing compensation for the loss in property value due to such regulations as the ESA perfectly clear:

Even though the federal government is already taxing away a third of the national income, nothing is left after all the earmarks to buy votes so supposedly the government can't afford to pay compensation. Therefore, because you think this is terribly important, and yet it's not important enough to actually divert money to accomplish, you want to find someone unlucky enough to have an endangered species resident on his land, and load the costs that society as a whole is unwilling to pay onto him alone.

The other appalling thing, of course, is that court precedents still support this. I do understand how that happened - before the 16th Amendment, the government could not even manage to collect excise taxes and import duties amounting to even 10% of the GDP. The federal and the original 13 state governments started out bankrupt from Revolutionary War debts (few RW soldiers ever collected all their back pay), and lacked the tax base to catch up. So the early Supreme Court wasn't going to interpret the compensation clause too strictly. But that was then. Now, the feds have money to waste - and they do...
3.5.2009 6:41pm

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