Why Environmentalists and Hunters are United in Saying the Endangered Species Act Is Failing and Needs to Be Fixed

Wolverines //Endangered Species Act
The Endangered Species Act denied protection to the wolverine (seen here), whose habitat is threatened because it requires mountaintop snow year round. FREDERICK FLORIN/AFP/Getty Images

The Guam broadbill, a small, iridescent black flycatcher with a brown chest and a fluffy head, once flourished in the secluded limestone ravines on the Pacific island of Guam, a territory that belongs to the United States. By 1973, development had destroyed two-thirds of its habitat and introduced a snake that preyed on the bird's young.

That same year, President Richard Nixon signed the Endangered Species Act (ESA) into law. The act, which sets restrictions on the destruction of specific animal species and their habitat, seemed purpose-­built for Guam's broadbill. But conservation rarely moves at the speed of destruction. It took Guam's governor six years to petition to have the bird protected. Studies took another five. By the time the broadbill made the endangered species list, in the summer of 1984, it was nearly gone—the last sighting occurred a few weeks later, on a golf course.

The ESA is widely credited with preventing the extinction of 99 percent of the species placed on its protected list. But as the plight of the poor broadbill suggests, this number doesn't tell the whole story. More than half of the species the act purportedly protects are now in trouble. Between 1990 and 2010, just 8 percent of species improved their well-being, while 52 percent declined. A massive backlog of animals—many of them, like the broadbill, facing loss of habitat or assaults from invasive species—are also waiting to get on the list, but their cases are mired in the courts or red tape.

It's become increasingly clear that the act's one-species-at-a-time method of conservation is too slow and cumbersome to deal with relatively recent threats like climate change and invasive species, which can throw entire ecosystems into turmoil. And even though the act is hugely popular—its favorable rating hovers around 80 percent in polls—it has an uncanny way of making enemies of ranchers, farmers and developers, whose support is essential for protecting species from harm.

For these reasons, many environmentalists argue, the ESA needs a fundamental overhaul. They've quietly floated proposals to make it more effective, such as paying farmers to help conservation efforts and establishing objective and independent ways of deciding which species are listed that would help insulate them from politics.

Polar bears got lucky: They got on the endangered species list. Walruses? Pikas? Nope. Tim Flach/Getty

But such nuances have gotten lost in high-stakes partisan politics. Political attacks on the ESA were on the rise long before Donald Trump took the White House. Last summer, the Trump administration proposed changes to the act that would remove protections for threatened species and insert economic considerations into decisions on which species to list. Senator John Barrasso of Wyoming suggested giving more power to the states to decide which species to protect, which would effectively neutralize the act in crucial rural Western states. With the Democrats taking control of the House in 2019, lawmakers could try to push for changes during the lame-duck session.

The hostile political climate has put environmentalists in an awkward spot: Many are loath to publicly criticize the ESA for fear of lending support to enemies of conservation. At the same time, they feel strongly that if the act doesn't change with the times, it will become a less and less ­effective tool. "We should be able to talk about what a better law looks like and dream that we can get that better law," says Timothy Male, a former Obama staffer and the founder of the Environmental Policy Innovation Center, a new think tank that ­focuses on innovative ways to fix wildlife policy. "We've been stuck in the same place, from a legal perspective, for two decades."

Government vs. Landowners

Tim Male is one of a handful of ­environmentalists who believe that talking about the ESA's shortcomings is essential to saving it. Its biggest problem, he says, is political: It alienates rural landowners. Lack of communication and outreach in the places where many endangered ­animals live have led to a perception that listing is arbitrary. This gives people who pay an economic price for protected species—mainly the ranchers, farmers and developers—reason to distrust the system and resist the designations. A common sentiment during the armed standoff at Oregon's Malheur National Wildlife Refuge in 2016 was that liberals use the act to punish rural conservatives (though, in fact, most endangered species live in blue states, like Hawaii and California).

Poor communication between the government and local stakeholders has made many species deeply unpop­ular—especially the small, ­obscure ones that need protection most. Landowners have been known to try to eradicate a listed or ­soon-to-be listed species from their land. Take the red wolf, which went ­extinct in the wild and, in 1986, was reintroduced in North Carolina; it found new hunting grounds and flourished. But nearby landowners eventually turned against the wolves. They denied rangers access to their land and in some cases reportedly set out to eradicate the creatures. Earlier this year, U.S. Fish and Wildlife Service (FWS) officials threw up their hands and proposed limiting protection to only a few dozen wolves on the original preserve and abandoning the rest. "We just lost all the access to where these animals were," says Leopoldo Miranda, assistant regional director for ecological services at the FWS. "We cannot force anybody to let us in."

The language of the act is ill-­suited to dealing with broad threats. For instance, the ESA says that animals should be protected if they face ­extinction in the "foreseeable future." Does that cover the loss of habitat due to ice sheets at the North Pole that are expected to disappear by 2050? The FWS apparently thought so when it listed the polar bear in 2008. (The FWS, along with the National Oceanic and Atmospheric Administration Fisheries, maintains the list.) But the agency subsequently rejected the northern walrus, even though it is threatened by the same loss of polar habitat. It also denied protection to the wolverine, which requires mountaintop snow all year round, and the pika, a high alpine mammal threatened by warming temperatures.

Wolverine -- not protected by Endangered Species Act
Left unprotected: The Endangered Species Act doesn't protect animals like the wolverine, although climate change threatens its habitat. FREDERICK FLORIN/AFP/Getty Images

This apparent arbitrariness has under­mined confidence in the ESA. To make designations more consistent in fact and appearance, regulators should establish clear, specific and objective criteria for determining whether a species warrants protection, says Ya-Wei Li, a computer engineer and lawyer who is Male's partner at the think tank. That would make it easier to convince farmers, ranchers and developers, whose pocketbooks often get hit when a species is listed, to trust that conservationists aren't putting their fingers on the scales. "There are no if/then statements in the act," Li says. "It's always a case-by-case determination. And the fact that it's case-by-case is, in many cases, the heart of the problem."

To further win over landowners, Li proposes putting them on the ­payroll as stewards of listed animals and plants. The federal government currently pays farmers to preserve topsoil; why not pay them to preserve animals? The more endangered frogs on the farm thrive, the more money the farmer gets in subsidies. ­Rather than hunting down endangered animals on their land, farmers and ranchers might even start lobbying to have new animals listed.

More than half of the roughly1,600 species on the endangered species list are plants, and extending payment schemes to protect them would help plug a big conservation gap. But scant money is available, and rules are often flouted. For instance, it is legal to kill listed plants "by accident." Just a few million dollars could save scores of endangered Hawaiian plants, or the whitebark pine, a western tree that was denied a listing due solely to lack of funds, says Li.

The final step is to do a better job of enforcing compliance with the ESA by bringing monitoring into the information age. Regulators ­currently rely too much on visual inspections and other low-tech methods that are easily circumvented or blocked. When Li worked at Defenders of Wildlife, an environmental watchdog group, he used images from Landsat and Google Earth to catch oil drillers in west ­Texas working illegally on the protected habitat of the dunes sagebrush lizard.

Farmers are paid to preserve topsoil, so why not animals? Farm machines harvesting corn in Midwest, September, aerial view. James Brey/Getty

A big reason why the ESA is still so popular, despite its problems, is that it taps into a near-universal value: No one wants to kill an animal that's near extinction. To avoid partisanship, people on all sides need to be active participants in protecting species. Maybe environmentalists should stop thinking like activists and start thinking like engineers, says Male. "Engineers are constantly open to tinkering. Everything we do, there is a way to do it better. The planet's changing really fast. Who's focused on making sure that conservation changes at the speed of the planet?"