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REFORMING THE ENDANGERED SPECIES ACT
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| Background: |
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The ESA was passed by Congress over three decades ago in 1973. The law's primary purpose is to conserve and restore species that the Federal government determines are either threatened or endangered of becoming extinct. The law prohibits anyone from harming any species that is listed as endangered. It also requires Federal government agencies to ensure that they do not take any actions that will harm endangered species. This includes ensuring that agencies issuing Federal permits consider the impact on endangered species before approving such permits.
The ESA has been remarkably unsuccessful at species recovery. According to a May 2005 report issued by the House Resources Committee, less than one percent (only 10 of nearly 1300 domestic species) of listed endangered species have successfully recovered. There are more species that have been removed from the endangered list due to data error than from actual recovery. The ESA has not even been successful at helping those species remaining on the list. According to the same Congressional report, the vast majority of the remaining 99% of species have not improved under implementation of the current law. Even the FWS agrees that the ESA needs improvement, noting that the designation of critical habitat required under the ESA provides little additional protection to most listed species, yet consumes significant amounts of conservation resources. |
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| Issue: |
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The current regulatory system in place under the ESA is causing unnecessary burdens on Federal permittees through delays and changes to mining plans, without significantly helping to recover endangered species. In some cases, operators are forced to consider impacts to habitats of endangered species that are not present in the project area. In others, FWS staff routinely ignore deadlines and continuously alter the rules of the game by demanding ever-changing modifications to mining plans, unnecessarily delaying mining projects. Some extreme activists even use the protections of the ESA as an indirect tool to delay or stop mining projects altogether.
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| Needed Reforms: |
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Congress must amend the Endangered Species Act (ESA) to modernize and update its provisions so that the objectives of the ESA are fulfilled. This can best be accomplished by amending the law to provide more predictability and greater incentives for cooperation between government and the private sector in the regulatory process. Such reforms would include:
- Requiring sound science in Fish and Wildlife Service (FWS) decision-making
- Ensuring that agency decisions are made in a timely manner
- Codifying the "No Surprises" principle
- Encouraging private entities to help recover species by recognizing significant measures that are taken by permittees to protect threatened and endangered species through compensatory mitigation or mitigation banking.
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| Impact: |
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Substantial resources are being wasted on delays to mining and other projects, and on requirements that too often do not even significantly help endangered species. The punitive nature of the ESA creates the wrong incentives for how private parties address endangered species. Instead, the ESA should encourage and reward private parties for assisting the government in recovering and protecting endangered species. Whether or not they have an impact on endangered species, delays and expense from ESA-driven requirements have negative real life consequences on jobs, tax revenue, and the supply of minerals that are the essential building blocks for the economy of the United States.
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