| At the Western Governors Association's
two-day Executive Summit on the Endangered Species Act, I
told the
governors that the Endangered Species Act is broken – that
it was born broken.
The ESA is based on a flawed understanding of the Americas
at Columbian contact and on the myth of the balance of nature.
In addition, it is not even an endangered species act; it
is an endangered subpopulation and distinct population segment
act.
It uses a regulatory approach born in the Nixon administration,
and it ignores the role of states and landowners. It ignores
incentives. A new endangered species act should correct these
misunderstandings.
The extensive federal program to bring wolves to the West
is one example of the misunderstandings that ought to be
fixed.
"Restoring” wolves will not return ecological
processes to a mythical or mystical or even pre-Columbian
balance of nature.
There is no balance of nature, there is
no ecological stasis, there is only change.
What is more,
wolves were not the top predator structuring western ecosystems.
Humans were the top predators and they out competed wolves
for their prey.
Thus, at Columbian contact, there were few
wolves in the West because there was not a prey base. Wolves
only flourished after European diseases decimated Native
American populations.
Today, wolves as a species are not threatened with extinction.
There are thousands of gray wolves in Canada and Alaska.
Yet, of the list of 1,264 endangered or threatened U.S. species,
the gray wolf ranks 24th in terms of expenditures.
We spend
millions of dollars to protect a non-threatened species and
justify it by arbitrarily creating "distinct population
segments."
What that means is that if a gray wolf wanders
south to where Interstate 70 bisects Utah and manages to
cross the road, he immediately changes legal status. He has
moved into the Southwest distinct population segment and
must receive extra protection. Biologically he is the same
animal. Legally he is not.
Finally, the ESA is broken because it ignores one other
important reality: 80 percent of all listed or threatened
species have all or part of their habitat on private land.
Under the current law, landowners are punished for cultivating,
encouraging or allowing habitat that attracts or protects
an endangered species. The ESA prohibits harm to an endangered
species and the Fish and Wildlife Service interprets harm
to include modifying habitat.
Thus, "A forest landowner harvesting
timber, a farmer plowing new ground, or a developer clearing
land for a shopping
center (stands) in the same position as a poacher taking
aim at a whooping crane,” according to Michael Bean
of Environmental Defense.
Rational, normally law-abiding
citizens, therefore, often engage in preemptive habitat destruction.
If they expect an endangered species may come to their land,
they destroy the habitat.
But the governors were not looking for a litany of problems;
they were looking for better ways to protect and save species.
I suggested they remember that Richard Nixon was the president
who asked for and got from Congress the Endangered Species
Act, and that it is time we moved beyond the Richard Nixon
approach to
the
environment.
I suggested the following:
First, forget the 1970s mythology and
romanticism of the "balance of nature” and concentrate
on real problems. This can be best accomplished by adopting
environmental federalism
as a clear policy goal.
Under environmental federalism, the national government
is responsible for national problems. Global extinctions
are what really matters for a species. It makes little sense
to spend scarce money to protect a marginal distinct subpopulation
of a species already thriving elsewhere, if it means you
cannot protect another actual species from extinction.
Thus, the act should be amended to be an endangered species,
not subspecies, or distinct subpopulation segment act. Then,
states can decide whether or how to protect subspecies. They
can create interstate compacts for subspecies whose range
crosses state lines.
Some will object to environmental federalism, claiming states
will engage in a race to the bottom in an attempt to promote
development. In fact, the opposite tends to be true.
State forests are better managed, both environmentally and
economically, than federal forests. Some states have stricter
laws than those imposed by the federal government. States
have time and place-specific information that allows them
to react more quickly and more creatively than federal agencies.
Second, I proposed that federal regulators' regulatory
hammer be taken away and be replaced with funding to encourage
preservation.
A simple administrative change could replace
the definition of "harm” used by the Fish and
Wildlife Service. Because "harm” currently includes
habitat modification, our well-trained and smart federal
agents have little incentive to think creatively about ways
to really save endangered species.
If they lose their regulatory
hammer, they will have to consider and invent new tools to
protect species.
They might create a range of innovative programs similar
to the U.S. Department of Agriculture's Conservation
Reserve Program, for example. They could devise production
contracts for property owners who increase habitat and species
numbers, and rewards for having species
reproduce on your land.
Money for such a program could come from a user charge on
public lands or from earmarking funds from oil and gas production
on public lands.
But we may already appropriate enough money
to cover the costs of innovation. We will not know until
we actually think beyond direct regulation.
Under these proposals, the national and state governments
would become partners with property owners instead of being
adversaries. Money will be directed to saving actual species.
States will have authority and responsibility for managing
our biological heritage.
These proposals actually are based on Aldo Leopold's
admonition to experiment with many systems instead of "one-track
laws.”
And by engaging property owners in the effort
to protect species, we will also follow Leopold's claim
that "Conservation will ultimately boil down to rewarding
the private landowner who conserves the public interest.”
No
claims about the value of biodiversity or moralizing about
the diversity of life will change that basic fact.
Randy T. Simmons is a Senior Fellow
at the Property and Environmental Research Center and a professor
of political science at Utah State University.
He is also co-editor of Political Ecology: Wilderness and the Original State
of Nature, University of Utah Press, 2002. |
