The Endangered Species Act (ESA) is the subject of ongoing litigation over its dubious constitutionality. The 42-year-old law has failed to achieve its central goal of species recovery and has been the target of several reforms in Congress. The administration’s exploitation of the ESA to obstruct affordable energy production, along with the law’s inability to repopulate listed species, reflects the need to overhaul the federal government’s flawed conservation policies.
History and Purpose of the ESA
The ESA has had a dismal success rate since it was passed in 1973. Out of the over 2,200 listed species, only 29, or about one percent, have recovered and been delisted. When the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service, the two agencies that administer the ESA, classify a species as threatened or endangered, they must also designate areas as “critical habitats” deemed essential for the species. Critical habitats can comprise any area, including public and private land. The government doesn’t technically seize the newly designated habitat, but the landowner is effectively prevented from using it.
The law forbids any “take” of endangered species, which means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Transgressions include protecting crops from being destroyed by protected animals, defending livestock against predators, or simply moving a Utah prairie dog off of a property.
A Tool to Block Energy Development
The listing process can potentially disrupt any industry that uses land for production, including ranching, agriculture, and mining. Oil and gas operations in an affected area can be immediately brought to a halt during the exploration, extraction, and development processes.
The ESA requires all federal agencies to ensure that any actions taken by the agency do not “jeopardize” endangered species or “adversely modify” critical habitats. This means that energy producers drilling on federal land or in offshore waters can potentially face delays, be required to purchase costly permits, and develop a conservation plan in order to extract oil and gas after a species is listed.
The listing of the Dunes Sagebrush Lizard in Texas, for example, could have restricted drilling activity in the Permian Basin, an area responsible for over 20 percent of total U.S. oil production, but a voluntary conservation agreement between local parties and the government allowed the lizard to remain unlisted.
However, a species can still be listed even if local parties implement effective conservation plans. The ESA does not require the consideration of state information or economic data when deciding the listing of a species. The FWS listed the Lesser Prairie Chicken as a threatened species in 2014 despite an environmental mitigation cooperative of oil and gas producers across five-states, which should have rendered obstructive federal intervention unnecessary.
“Sue and Settle”
Several of these species are only being considered for listing due to frivolous lawsuits filed by environmentalist organizations such as the WildEarth Guardians. The Obama administration settled with many of these groups, and in 2011, mandated that 250 species be reviewed for listing by 2016. The increasingly litigious nature of the law could artificially inflate listed species, thus putting more commercial land, and energy production, at risk of closure due to the ESA. Eliminating domestic energy production is consistent with the goals of radical environmental groups such as WildEarth Guardians.
The increased scope of the ESA resulting from these lawsuits dovetails with the Obama administration’s ongoing policies to reduce the production affordable energy resources. Federal leasing for on- and offshore drilling in the last four years has substantially decreased since Obama took office, contributing to a 19 percent drop of oil and natural gas production on federal lands from 2009 – 2013. The ESA remains a powerful tool to slow down, or stop, affordable energy production on private lands.
The ESA is mistakenly considered by many to be the linchpin of preserving endangered species, but in fact its biggest role is to help environmentalists block energy production. The ESA’s opaque listing process allows the arbitrary listing of species, which can and has been used to obstruct oil and gas production. The administration’s motivations hide behind a façade of helping critters, like the American Burying Beatle, survive. In reality, endangered species haven’t recovered, the energy sector is being squeezed, and private landowners continue to be harassed due to the ESA. Effective conservation policy and a vibrant energy sector are not mutually exclusive, and federal environmental law should be modernized to reflect that.