The Endangered Species Act (ESA) has raised continual controversy since its enactment more than four decades ago, inciting many a heated debate over the need to protect threatened plants and animals versus how such protections could crimp land use or economic development. But a surprising new analysis shows that the Act might not be quite the economic threat that critics believe it is — at least, not anymore.
The new research, which was published in Proceedings of the National Academy of Sciences, takes a look at the impact of an especially highly debated section of the ESA: Section 7, which requires federal agencies to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service before moving forward with any form of development that they fund, authorize or carry out. This means that non-federal companies or organizations proposing development projects that require federal approval can be affected, since they must wait until the responsible federal agency has completed its Section 7 consultation.
These consultations are meant to ensure that development projects do not jeopardize species that have been listed under the act or “adversely modify” their critical habitats. If the Fish and Wildlife Service or National Marine Fisheries Service finds that they do, the projects can be altered or stopped.
To be clear, Section 7 does not embody all of the protections offered by the ESA nor is it the focus of all criticisms of the Act. While Section 7 is generally used to review larger-scale industrial development proposals, the Act still has significant bearing on the actions of individuals in other ways — for instance, by preventing landowners from shooting protected gray wolves, even if the landowners see the wolves as a threat to their livestock.
But Section 7 is one of the aspects of the Act with the potential to cause the most disruption to large-scale development projects, often with large numbers of jobs and large amounts of money at stake.
Yet the new analysis finds that, in the past seven years, not a single project has been halted or extensively changed as a result of a Section 7 consultation — effectively removing the teeth from modern arguments claiming that this aspect of the ESA is a hindrance to economic growth. The analysis was conducted by employees of Defenders of Wildlife, an environmental advocacy group, but the paper has been reviewed and published by a peer-reviewed journal. The authors’ affiliations are made known in a conflict of interest statement included in the paper, which also notes that “the results do not necessarily reflect the positions of Defenders of Wildlife.”
That’s not to say that the ESA hasn’t resulted in some high-profile conflicts in the past — perhaps the best known of these was the huge controversy surrounding the listing of the northern spotted owl in the 1990s. Because its critical habitat lies primarily in old-growth forests in the Pacific Northwest, the decision to list the bird as an endangered species caused a bitter rift between environmentalists and loggers, who argued that the decision was costing thousands of jobs.
Such stories are often cited by lobbyists calling for adjustments to the ESA on economic grounds, said Ya-Wei Li, senior director of Endangered Species Conservation at Defenders of Wildlife and a co-author on the new paper, who pointed to dozens of riders and bills introduced in the 114th session of Congress targeting the Act.
“The claim is that this consultation process is essentially killing jobs, it’s ruining the economy, it’s stopping projects left and right — all of these claims that the Section 7 process is very onerous to comply with,” Li said. “We want to tell the real story.”
Li and colleague Jacob Malcom, also of Defenders of Wildlife, used a Fish and Wildlife Service database to comb through all the Section 7 consultations that had been recorded by the Service between 2008 and 2015 — nearly 90,000 in all. They found that, ultimately, no project was stopped or extensively altered during this time as a result of a Section 7 consultation.
The analysis did pinpoint two consultations which resulted in a “jeopardy” call — the decision that a project proposal threatens a species listed under the ESA — although neither ultimately led to substantial action. The first of these was a project proposed by the U.S. Forest Service, according to the paper, and would have applied fire retardants on national forests. After a formal Section 7 consultation, the Fish and Wildlife Service found that the proposal jeopardized or adversely modified the critical habitats of 45 listed species. However, the authors explained, the decision was rejected in court in 2011 and a revised consultation found no jeopardy of adverse modification, according to the authors.
A second project was also found to result in jeopardy to a listed species — a small fish called the delta smelt — but was ultimately allowed to proceed with minor concessions.
These results are at odds with several similar studies conducted in the past, Li pointed out. An analysis of Section 7 consultations between 1979 and 1981 found that 173 of them resulted in jeopardy, although fewer than 10 were ultimately halted. Another analysis of consultations between 1987 and 1991 found 350 cases of jeopardy, and 18 projects were ultimately stopped.
The results beg the question of why there’s been an apparent decline in the cases of jeopardy or adverse modification of habitat found during Section 7 consultations. The analysis can’t point to any sure answers — but Li highlighted a few likely possibilities.
On the one hand, there’s the optimistic conclusion that federal agencies have simply learned to design projects with minimal impact on endangered species in the first place — meaning they’re already set to proceed by the time they make it to a Section 7 consultation, Li said. On the more pessimistic end, there’s the theory that Section 7 enforcers have become less stringent in recent years — and the authors point out that this could be the result of a variety of factors, including budget cuts and political pressure.
A third, more middle-of-the-road explanation is that the Fish and Wildlife and National Marine Fisheries services, along with other federal agencies, have become better negotiators in recent years, meaning they’ve been able to talk through potential conflicts and make adjustments to proposals before having to resort to a jeopardy call.
Li said it seems likely that “all three of these hypotheses have occurred” — now, it’s just a matter of figuring out whether one factor is dominant over the others.
“The most important implication of this paper is that these myths about the Endangered Species Act killing jobs, killing economies — they’re not reflected in the data,” Li said. So, he suggested, any calls to weaken the Act on the basis of its destructive effects on the economy should be dismissed.
Another pressing issue, moving forward, will be to determine just how well the Act is continuing to protect endangered and threatened species. “There really should be some evaluation of the extent to which Section 7, as currently administered, is contributing to the conservation of the species,” Li said.
In order to facilitate more research on this front moving forward, the authors have created a web app that compiles all the consultation data in a more easily searchable way and will be open to the public.
“Without this data being publicly available, and without us analyzing it, we would never have been able to tell this story,” Li said. “There’s so much value in making this regulatory information, these day-to-day decisions of the government [available]. When you have 88,000 of them and put them together, you start seeing these incredible patterns. And that is really important to improving the transparency and accountability of how federal environmental laws are being implemented.”
