Study Erases Misconceptions About Endangered Species Act, Raises Questions About Enforcement

bald-eagle.16december2015
A new study raises questions about how well the Endangered Species Act is enforced. The bald eagle is one of the act's notable successes; the animal was taken off the list in 2007. Bob Strong / REUTERS

Forty-three years after being enacted by Richard Nixon, the Endangered Species Act (ESA) is still widely considered to be the world's most powerful law for protecting endangered and threatened species. But it remains controversial, drawing praise and ire from separate quarters. Environmentalists sometimes question how well it’s enforced, while business interests often argue that it’s burdensome, getting in the way of development and economic progress.

One hotly debated part of the law is Section 7, which stipulates that contractors building or working on federal lands must consult with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service if their actions have the potential to disturb endangered or threatened species, or their habitats. During this process, there are consultations between the contractor and the federal agency with jurisdiction over the land (most commonly the U.S. Army Corps of Engineers) and the FWS.

After this consulting process, the FWS issues a biological opinion, the purpose of which is to ensure that the development or action doesn’t “jeopardize” or “destroy or adversely modify” a species’ critical habitat. If the agency thinks that action does present such “jeopardy,” it says so in its ruling, and the plan must be altered before continuing.

But a study published this week in Proceedings of the National Academy of Sciences analyzed reams of government data and found that out of the 88,290 consultations in which the FWS was involved in the last seven years, only one project was determined to present a jeopardy to threatened species.

And even that project went forward, after slight modifications. (And the second project was initially determined to present jeopardy, a decision that was reversed as the result of a court case.)

This result shocked study authors Ya-Wei Li, senior director of endangered species conservation at Defenders of Wildlife, and his colleague Jacob Malcom. Li says it raises serious questions about whether the law is being followed, and also should put to rest the arguments that the ESA “kills jobs” and unduly restricts development.

“As a practical matter, all these stories about regulatory burden of the Endangered Species Act are almost certainly wrong,” Li says. “In the last seven years the U.S. Fish and Wildlife Service has not had to stop a single project because of a finding that it would threaten a species’ survival.”

This is a big change from the past, says Li, who inputted much of the paper’s data into an online tool you can see for yourself. One previous study found that out of 10,762 consultations by the FWS from 1979 to 1981, 192 (or 1.8 percent) were found to present an unacceptable risk to endangered or threatened animals. And a white paper from the World Wildlife Fund found that 350 (0.47 percent) of the 73,560 consultations between 1987 and 1991 did the same.

So what has changed? Is the Fish and Wildlife Service still protecting the interests of endangered species?

Daniel Rohlf, a law professor at Lewis and Clark University who has closely followed (and sometimes been involved in) litigation involving the ESA for the last 25 years, says he thinks two things are happening. First, federal agencies and contractors are becoming more familiar with the law and what it takes to comply with it. “Especially agencies that routinely deal with [these] issues, such as the U.S. Forest Service—I think they have improved in at least recognizing that it must take into account needs of endangered species,” says Rohlf, who wasn’t involved in the present study.

Second, though, the law doesn’t seem to be being implemented quite as it should. “I think that clearly some, or perhaps the majority of the decline [in jeopardy findings] we’ve seen over the years stems from federal agencies and government taking more creative interpretations of the Endangered Species Act that diminish protections of endangered species,” Rohlf says. “And frankly in some instances,” political pressure has pushed the agency “to allow actions to go forward even though they have adverse consequences for threatened and endangered species.”

Rohlf says that one problem is that the agency makes small allowances that chip away at species’ critical habitats, which aren’t carefully kept track of and could lead to serious problems down the road. For example, as discussed in a 2010 case Butte Environmental Council v. United States Army Corps of Engineers, an environmental group sued the Corps, the FWS and the city of Redding, California, for allowing a business park to be built on protected wetlands home to endangered vernal pool shrimp and Orcutt grass. In a decision that was upheld by the Ninth Circuit Court of Appeals, the agency determined that although the development would indeed essentially destroy “critical habitat,” it was acceptable because it was only wrecking a small sliver of it.

Rohlf suggest these are “straws on the camel’s back” that aren’t being properly taken into account. Or, as the study states: “The cumulative effect of hundreds of these small projects is reduced populations or habitat, an outcome that some people refer to as ‘death by a thousand cuts.’”

Not everybody agrees that the study suggests implementation is slipping. Steve Quarles, an environmental lawyer based in Washington, D.C., says the study doesn’t take into account all the nuances of the negotiation process between the contractor and the various agencies involved. He says that in his own work representing contractors, significant changes have been made to development plans to protected endangered species as a result of negotiations with the FWS. But none of these changes were reflected in the final biological assessments of the service, and no jeopardy finding resulted—and thus, such changes are invisible to an analysis such as was done in this study.

In other words, contractors are just better at complying with the law these days, Quarles says. And all parties have gotten more sophisticated regarding the details of the ESA; they have access to better information and professionals consultants, and so more projects are probably being killed before formal consultations with the government even begin, he adds. "I’d say to a significant degree, the development community has learned to operate within the confines of the Endangered Species Act."

Gary Frazer, who oversees the endangered species program at the FWS, says that it’s a “good study” but agreed that it didn’t reflect all the changes that are often made during consultations. The low jeopardy numbers are a matter of “agency learning,” Frazer says. “Most federal agencies and now very experienced in the Endangered Species Act, comfortable and knowledgeable about how to design their projects up front to avoid conflicts, and we are getting much better projects from the outset.”

“We are also finding as a general rule that throughout the consultation process conflicts are identified, and agencies are very responsive to modify their plans.” Ultimately, he says, the ESA “does accomplish good protection for species but in a way that allows projects to go forward and does not as a rule cause undue delay.”

The agency also pointed to recent testimony by the Department of the Interior’s Michael Bean attesting to recent success of the act and its implementation. Bean told the House Natural Resources Committee that since 2009 “more species have been taken off the endangered list due to recovery than in any prior administration. Though still endangered, many other species—among them the California condor, black-footed ferret, whooping crane, Florida manatee, Kirtland’s warbler, Kemp’s ridley sea turtle and Florida panther—have had their populations increase to or near their highest levels in decades.”

Despite these success, the ESA is still under legislative assault, Li says. There are around 90 riders or amendments in the works or making their way through congress to weaken various aspects of the law. “We’ve never seen so many attacks in the history of the act,” he says.

Li and Rohlf concede that agencies have gotten better at complying with the law, but think the fact that only one project was altered as a result of a final FWS biological opinions is unfathomably low. It just “isn’t reasonable, even given that federal agencies are better attuned to the needs of endangered species,” Rohlf says.