The Endangered Species Act is a federal statute enacted by Congress in the early 1970s, inspired by the desire to prevent the extinction of iconic wildlife such as the bald eagle and the gray whale. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018) The Act requires the federal government to perform three functions: listing species as endangered or threatened, designating critical habitat, and consulting with the Fish and Wildlife Service when federal actions may adversely affect listed species or their habitat. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
The Three Pillars of the ESA
According to Tony Francois, an attorney with the Pacific Legal Foundation, the Act’s enforcement by federal agencies tends to extend beyond the authority Congress granted, resulting in significant impairment of liberties for property owners and others. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018) The first pillar, listing, involves a process to determine whether a species is endangered or threatened. The second, critical habitat designation, is a federal agency determination that a given piece of property will henceforth be designated habitat for a given species. The third, consultation, requires that anytime a federal agency is going to do something that could potentially adversely affect a species or its habitat, it must consult with the Fish and Wildlife Service—and this extends to an agency simply issuing a permit to a property owner. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
Francois stated that the combined effects of these three tasks create a regulatory regime in which property owners, even if their property does not have a listed species on it, if it is designated as habitat, must go through a substantial consultation and permitting process that in practice becomes quite draconian and inflexible. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
TVA v. Hill and “No Matter the Cost”
Francois described the Supreme Court’s 1970s decision in Tennessee Valley Authority v. Hill, a case involving the Tellico Dam, which was almost complete in the mid-1970s. The dam had been federally funded and built long before the Endangered Species Act went into effect, but was not quite done before the Act took effect. A group of environmentalists sued the Tennessee Valley Authority because the completion of the dam would potentially harm a small population of snail darters that relied on water from the reservoir. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
The issue was whether Congress, having passed the ESA but also authorized and funded the multi-million dollar public works project after the ESA was passed, meant that even a great big important public works project would have to give way to an endangered species. The Supreme Court’s answer was yes. Francois said the Court held that the ESA makes protection of endangered wildlife the federal government’s number one priority over all other federal activities—a statement Francois noted does not appear anywhere in the text of the Act. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
Francois further stated that the Court’s statement was not a period but a comma, followed by “no matter the cost,” which is also not in the Endangered Species Act. He said this decision supercharged the authority of the Fish and Wildlife Service and NOAA Fisheries, empowering these agencies to play a much stronger role than the members of Congress who voted for the ESA. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
In response, Congress in the late 1970s passed a bipartisan amendment to the Act intended to provide some discretion for the government in whether to designate critical habitat and to consider the economic impact of habitat designations. Francois said several important senators and congressmen stated they did not mean for the Act to be the be-all end-all of the federal government. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
The Louisiana Frog Case
Francois described litigation involving a group of family-owned companies in Louisiana that own timberland, with a lead client called Markle Interests. The family had owned the property for a very long time, and it was under a long-term lease to a timber company doing ongoing logging. When the lease ends, the family planned to develop the property in a fairly high-growth area of Louisiana. Edward Poitevent, the leader of the organization owning the properties, was surprised to learn that Fish and Wildlife Service staff were walking around the property without his permission six or seven years earlier. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
The Service wanted to designate the property as critical habitat for a species of frog on the endangered species list, at the time referred to as the Mississippi gopher frog. The Service ultimately determined that the property was not suitable habitat for the frogs—it had the wrong kind of trees and undergrowth, and while it had a couple of ephemeral ponds that might be suitable for laying eggs, without the other habitat features the frogs could not survive there. The Service determined that designating it as critical habitat would have as much as a $34 million negative economic impact through loss of development rights. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
The property, about 1,500 acres, would have to be extensively changed: trees harvested and replanted with a different species, and an annual regime of prescribed fire to get the right type of undergrowth. Francois said that after concluding the property was unsuitable and that designation would cause a $34 million economic impact, the Service went ahead and designated it as critical habitat anyway, determining that the $34 million hit was not disproportionate to the benefits of designating entirely unsuitable property as critical habitat for the now-renamed dusky gopher frog. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
Poitevent, through the companies that formally own the property, has been in litigation with the Fish and Wildlife Service for a number of years, and the case found its way to the Supreme Court, which was to hear it on the first day of October in the fall term—the first case the Court would hear oral argument in that term. Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018)
Incentives and Unintended Consequences
Ronald Bailey, discussing his book on the issue of species loss, stated that since 1500 the International Union for the Conservation of Nature has estimated that humanity has caused about 322 species of terrestrial vertebrates to go extinct out of over 30,000 species—essentially less than 1%. He noted that as we reach peak farmland, more land will go back to nature, and by the end of this century the United Nations estimates that 80% of people will be living in cities, meaning the number of people living on the landscape in rural areas will be cut in half, leaving more land for nature. Ronald Bailey on the End of Doom (2015)
Bailey said that with the Endangered Species Act, there is a meme that if you have an endangered species on your land and the federal government knows it, they will start regulating and controlling your land—the idea being to “shoot, shovel, and shut up.” He stated that is not the incentive you want to give people; you want people to want to have an endangered species on their land so they would protect it and value it. Ronald Bailey on the End of Doom (2015)
Bob Zadek observed that it has been widely reported that when owners of agricultural land and farmland discover a species that might be or is on the list, they will quickly kill it lest it be found, because when environmentalists find that endangered species on your land, the land will decline in value and the uses you could put to it will be limited. Bailey agreed, stating that if we want land to be used for schools or roads, we pay for it as part of our tax dollars, and similarly if we think people want to preserve species, we should pay landowners to preserve them rather than force them to give up value. Ronald Bailey on the End of Doom (2015)
Across episodes
The two episodes approach the Endangered Species Act from different angles: the 2015 episode with Ronald Bailey focuses on the incentive effects of the Act on landowners and the broader trend of species extinction, while the 2018 episode with Tony Francois examines the Act’s regulatory mechanisms, the Supreme Court’s TVA v. Hill decision, and specific litigation over the dusky gopher frog. The excerpts show no direct development or change in the argument between the earlier and later treatment; each guest addresses different aspects of the same statute.
What the sources do not cover
The excerpts do not state the exact text of the Endangered Species Act, the specific provisions of the late 1970s amendments, or the outcome of the Supreme Court case involving the dusky gopher frog. The excerpts also do not provide the full name of the International Union for the Conservation of Nature or the specific date of the United Nations estimate regarding urban population. The excerpts do not state which state the Tellico Dam is in, nor do they provide the full legal citation for TVA v. Hill.