Most Americans support the goals of the Endangered Species Act (ESA) — to recover species from the brink of extinction. Count me among those Americans. But outcomes matter more than aspirations, and the ESA is falling short of its goals. It is time to restore the original intent of the ESA.
Time and time again, the ESA has been weaponized by special interests in the service of a lucrative, anti-development business model that profits from species remaining near extinction, resulting in groups entrenching themselves at the center of the ESA policy debate, advocating to maintain a broken status quo.
They flood federal agencies with petitions to list species and then sue when the inundated agency predictably misses the one-year deadline to act on the listing petitions. In 2017, the Government Accountability Office (GAO) reviewed the litigation machine that drives the ESA’s implementation. The study found that between 2005 and 2015, 141 lawsuits involving 1,441 species were filed against the federal government, challenging missed deadlines to review petitions to add species to the ESA list. Three individual listing petitions in 2007 and 2010 accounted for 1,078 of these species, and just two special interest groups accounted for nearly one-third of ESA litigation.
In the few instances of successful recovery under the ESA, these same activist groups fight to keep species listed, in defiance of the scientific consensus. For example, career scientists at the U.S. Fish and Wildlife Service (FWS) began proposing the delisting and downlisting of segments of the gray wolf population in 2003, including full delisting proposals in 2013, 2017 and 2020. Except for a legislatively delisted population segment, repeat litigants have successfully overturned every science-based delisting attempt by the federal government. In the parts of the country suffering the consequences of this activist litigation, a recovered-but-listed wolf population devastates ranchers and threatens households. The story with grizzly bears in the Greater Yellowstone Ecosystem is much the same.
The same groups have weaponized routine permitting under the ESA to advance their agendas, with major ramifications for U.S. infrastructure development and the American economy. The first such instance occurred within a year of the ESA becoming law. The case of the infamous snail darter, a small fish “discovered” just in time to halt construction of the Tellico Dam in Tennessee, went all the way to the Supreme Court and led to changes in the law to allow project construction to proceed. Fifty years later, the science is clear that the snail darter never existed as a separate species.
In 2012, FWS designated 1,500 acres of private land as critical habitat for the Dusky Gopher frog. The designation threatened $36 million in losses on land that lacked the features necessary to support a frog population. The United States Supreme Court had to intervene to state the obvious: the government cannot designate land as critical habitat if it is not actually habitat.
Today, not much has changed. A California public water utility’s ratepayers are shouldering $200 million and counting in ESA compliance costs because the National Marine Fisheries Service designated the agency’s operational area as critical habitat for California steelhead. There’s just one problem: the designated habitat is unoccupied, unsuitable for the species and has never hosted a native population of California steelhead.
In Florida, ESA permitting has driven more than a decade of delays for a federally authorized, nationally significant expansion of Port Everglades, and more than quadrupled project costs from $337 million in 2015 to $1.35 billion in 2023. Despite a robust mitigation plan for the project, fearmongering regarding minimal environmental impacts has kept the project stalled while costs continue to balloon.
Wildlife conservation cannot succeed without well-managed habitat and science-based collaboration between governments and private landowners. The ESA has shown its power to prevent the responsible use of land and water resources. Yet, it has no mechanism to incentivize conservation and support the kind of collaboration necessary for species recovery. The government should not treat landowners as the enemy when two-thirds of listed species have habitat on private lands.
Only 3 percent of listed species have ever been delisted due to recovery. True supporters of the ESA cannot and should not accept a 3 percent success rate. I am leading ESA reform in Congress to put conservation and collaboration before litigation and conflict, promote wildlife recovery and reform America’s broken permitting system. It is time to restore the Endangered Species Act to its original intent and stop the fearmongering and profiteering at the expense of the very critters ESA was designed to protect and recover.
Rep. Bruce Westerman (R., Ark.) is the Chair of the House Natural Resources Committee.
