ESA shakeups: Does protecting species have to be a zero-sum game?

The American burying beetle doesn’t look like much. But the inch-long, black and orange bug is at the center of a controversy.

The beetle is considered endangered, so its habitat is protected by law. Construction projects, oil drilling, and other industrial projects can come to a screeching halt if one beetle is discovered on the property. And that can translate to job losses, a price many say is unreasonable for the sake of a bug.

But others argue that the burying beetle provides too important of an ecosystem service to risk total loss of the insects from their historic range across the Great Plains through the Midwest and into New England. They bury dead things, then eat them, kick-starting the process of turning carcasses into fertilizer.

The debate around the American burying beetle doesn’t stand alone. It’s a microcosm of tension surrounding a 45-year-old environmental law designed to halt extinctions.

Under the 1973 Endangered Species Act (ESA), plants and animals that are determined to be at risk of extinction are listed as either “threatened” or “endangered.” Species on the list are given protection and recovery plans. Their habitat is also protected from degradation that could risk their recovery.

That’s where much of the tension comes in: when an endangered species’ habitat is also human habitat. At the heart of the debate around the ESA lies a question of how we value human needs in relation to the natural world.

“America has always had this tension between, ‘Here we are going to have this wild, and here we are going to develop,’ ” says George Frisvold, professor of agriculture and resource economics at the University of Arizona. “It comes down to people’s willingness to pay, to put their money where their mouth is.… Some humans are going to value habitat and species, and others aren’t.”

Those tensions seem to be reaching a boiling point in legislative circles. Lawmakers have proposed more than two dozen amendments, policy initiatives, and pieces of legislation regarding the ESA and its implementation in recent weeks. Many of these proposed changes would reduce restrictions on economic development as a result of the law.

The latest and most sweeping proposal came from the Trump administration on Thursday in the form of changes to the regulatory framework of the law. The potential revisions address protections for threatened species, what habitat requires protection, criteria for adding and removing species from the list, and the inclusion of economics into listing decisions.

“This is the biggest proposed regulatory change in the ESA since the agency first wrote their initial rules,” says Robert Fischman, a professor of law and public and environmental affairs at the Maurer School of Law at Indiana University, Bloomington.

Close quarters

At the heart of the issue is the question of what to do when human habitat intersects with the habitat of endangered species. Any land considered critical habitat for an endangered or threatened species is protected under the ESA, even if the species in question does not currently reside there. The idea is that the species might need more space as it recovers. But that can also mean an added cost for landowners.

For some, the effect is personal. If critical habitat is found on a farm, for example, “you’ve got a farmer that’s really just trying to do normal farming practices, but now those are going to be jeopardized because of all the paperwork and burdens that come with ESA interpretation,” explains Ryan Yates, director of congressional relations for the American Farm Bureau Federation. And after all that, they could end up being unable to use a large portion of their land.

For others, this is seen as an impediment to economic development in a region. In some cases, says Kathleen Sgamma, president of the Denver-based lobbying group Western Energy Alliance, the measures required to maintain that critical habitat and drill for oil or gas in a given area become prohibitively expensive and time-consuming, and this might drive companies away.

One of the proposed changes would redefine how the federal government designates critical habitat in several ways that would reduce the amount of land subject to ESA regulations. Under another, species listed as “threatened” would no longer receive automatic blanket protections. Instead, agencies would have to decide to devise a protection plan – a measure that opponents say will lead to fewer protections and therefore fewer regulations.

“It makes sense from time to time to look at the red tape and say, ‘Are all of these rules and procedures actually effective? Or are they just hindering economic activity without providing a benefit to the species?’ ” says Ms. Sgamma, who supports the proposed changes. “It’s important to look and see if these balances are achieved.”

A common criticism of the ESA is that it has had too little of an impact on endangered species for the burdens it has caused on humans. Mr. Yates calls it a “slap in the face” to farmers who are diligently complying with regulations and willing to help recover endangered species.

Whether or not the ESA has been successful depends on how you define success. Is the law supposed to prevent extinction, or bring species back from the brink all the way to the point of not needing protections anymore?

By the former measure, the law is a success. Ninety-nine percent of listed species have not gone extinct. But by the latter, it looks a little different. Three percent of listed species have been delisted due to recovery.

Giving biodiversity weight

Balance is also a rallying call for those opposed to the proposed changes. But they focus more on the other side of the balance: the value of protecting biodiversity.

That has been the focus since the beginning. The Endangered Species Act was actually signed into law because economic concerns were seen as dominating the conversation at the time, says Jason Shogren, chair of natural resource conservation and management at the University of Wyoming.

“Before the ESA, there were no weights put on the nonmarket side,” he says. “With the ESA, it’s like they put a boulder on that side.”

That boulder was intended to give weight to the less tangible values of biodiversity and habitat. For example, natural landscapes and species can hold the keys to future scientific discoveries, yet-undiscovered medical cures, cultural significance, recreational importance, or aesthetic value. “Those don’t get registered in the market system,” Professor Shogren says.

In the section detailing criteria for ESA listing, the law explicitly states that that decision must be made “without reference to possible economic or other impacts of such determination.” One of the proposed changes would remove that phrase.

The absence of explicit economic considerations in the listing stage is what has given the ESA its power, says Shogren. “The ESA does not ask us to account for benefits and costs of saving a species,” he says. “It says the species is at risk, and that’s all we have to know.”

And that, he says, implies that people are assigning a significant, infinite, intrinsic value to nature.

As such, the ESA codifies into law that we value other species as priceless, says Bob Dreher, senior vice president of conservation programs at the Defenders of Wildlife. “There is no law that better captures the other-spiritedness of human beings than the Endangered Species Act. It is a commitment to the rest of life on the planet as part of the life of the planet.”

A path forward?

That commitment to prevent extinction is a sentiment shared across the board. Despite so many legislative petitions to change the implementation of the law, public support for the ESA remains high – across the political spectrum. In a survey conducted in 2015, nearly 90 percent of liberals and 74 percent of conservatives supported the ESA.

“Nobody wants to see wildlife go extinct, unless you’re crazy,” Yates says. And from that common ground, compromise can be struck.

A few individual cases have already seen such dialogues. For example, when it became clear that the greater sage grouse might soon need ESA protections that might lead to land-use restrictions, the oil and gas industry, conservationists, politicians, and local landowners sat down together and found a solution that satisfied everyone. Years later the bird’s population has remained stable, and all parties – including industry – point to the sage grouse compromise as a plan that worked.

But the key in that story, says Vicky Meretsky, professor of environmental affairs at Indiana University, Bloomington, was that threat of regulation motivated dialogues. “You have to give people a reason to come to the table,” she argues. And without those land-use restrictions, “The act no longer has sufficient strength to require that level of cooperation.”

Yates disagrees that the proverbial stick is the only way to get everyone to the table. He hopes to see changes to the regulations that instead encourage more voluntary conservation, with channels for dialogues between farmers and other landowners, scientists, and regulators about the best practices to maintain a species’ habitat in conjunction with their livelihoods.

“We want to ensure that we have not only a healthy and vibrant ecology but also healthy and vibrant economies,” Yates says. “And by working together and finding that balance, we can achieve that.”