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Endangered Species Act endangers rights of landowners
Doug Bandow (archive)

February 16, 2004 |

WASHINGTON - When people think of endangered species, they often think of the bald eagle. But the so-called Endangered Species Act protects more ugly bugs than majestic raptors. And it does so at high cost to humans.

Even many government officials acknowledge that the act requires revision. The Environmental Protection Agency has just issued a new regulation making it harder for activist groups to use the Endangered Species Act as a political weapon rather than as an ecological tool.

The act, enacted three decades ago, gained wide political support from people thinking about "charismatic mega-fauna" - eagles, elephants and the like. Yet the bulk of the 14 million or so species in existence are creatures, notably insects, which most people would squash if discovered in their homes.

Moreover, after 30 years, the Endangered Species Act can point to few successes: Just 10 of nearly 1,300 "endangered" and "threatened" species have recovered, and usually due to measures unrelated to the act. More have been delisted because they became extinct.

In fact, by stripping landowners of control over their land, the act has discouraged species protection. Economist Rick Stroup terms it "shoot, shovel, and shut-up."

That is, if you find a listed species, you should kill it, bury it and never say anything. Less dramatically, owners of forest land cut down trees to avoid attracting the endangered red-cockaded woodpecker, which nests in old-growth trees; and adjust logging practices to discourage the habitat favored by the northern spotted owl.

The listing of the Preble's meadow jumping mouse caused property owners to destroy growth favored by the rodent. Jonathan Adler, a professor at Case Western Reserve University Law School, notes that many landowners wouldn't even allow researchers on their land to assess the mice population lest some be discovered.

The administration of former President Bill Clinton created the Safe Harbor program to indemnify some property owners. Yet part of that initiative was voided December 2003 in federal court.

Unfortunately, activists routinely use litigation to impede economic development. They slow the regulatory process and increase compliance costs.

For instance, many activists oppose use of pesticides in principle. Never mind the fact that plants use numerous natural pesticides to fight bugs.

But environmental groups don't have the political support necessary to win passage of new legislation to restrict pesticide use. After all, most people like to eat.

Thus, these organizations have been using litigation under the Endangered Species Act to hinder farmers who employ pesticides. The EPA is charged with the lead in regulating pesticides, which must be registered by jumping through a number of bureaucratic hoops.

Activists attempt to manipulate such provisions even where there is no evidence of harm. Their attack is procedural - usually an alleged lack of adequate consultation between the EPA and the National Marine Fisheries Service and the Fish and Wildlife Service.

Observes Jim Streeter of the National Wilderness Institute: "These lawsuits are not about any real danger to threatened or endangered species. Instead, they are simply trying to create more government bureaucracy to limit people's access to pesticide products."

A half dozen of these lawsuits currently are pending before the U.S. 9th Circuit Court of Appeals alone.

One case resulted in a decision imposing buffer zones surrounding streams containing salmon because the evaluation process had not been completed. Farmers throughout the northwest will be prevented from ground spraying within 20 yards and aerial spraying within 100 yards of the water.

Farmers will lose effective use of large swaths of their fields and orchards; much will have to be taken out of production. In 2003, the Department of Agriculture estimated that the annual cost could be $600 million.

In late January, the EPA issued a new rule to streamline pesticide reviews. First, the regulation recognizes that the agency has primary responsibility for dealing with pesticides. If the EPA finds no likely adverse impact on endangered species, it need not delay approval for "consultations" with other government bureaucracies.

Second, even where contact is required, the other agencies can rely on the EPA decision. No longer will they have to start afresh with a new study.

By setting up a formal process, the new rule reduces the cause for the courts to step in for procedural reasons. Limiting detailed and duplicative oversight will reduce costs for businesses and consumers alike. Moreover, federal agencies will be more able to concentrate on instances where species might actually be endangered.

Unfortunately, the Endangered Species Act does more to impede economic activity than protect the environment. It desperately needs fixing by Congress. In the meantime, the EPA and other agencies should use the administrative process to make whatever improvements they can.


Doug Bandow is a senior fellow at the Cato Institute, a Townhall.com member group.

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