The most irrational law in America might be…wait for it…The Endangered Species Act. Some people believe that ESA violates the rights of more Americans on a day to day basis than any other law on the books. You can have much of your life savings invested in land, and then some bureaucrat shows up and says you can’t use your own land because of an endangered rodent or toad. Most recently, the law was enforced against landowners even though the critter did not even live on the land in question.
A federal appeals court declined to rehear a case brought against the U.S. Fish and Wildlife Service (FWS) for designating private property as critical habitat for an endangered frog that hasn’t lived on those lands for decades.
FWS officials designated 6,477 acres as critical habitat for the endangered dusky gopher frog in 2012. About 1,500 acres of the critical habitat was private land in St. Tammany Parish, despite the fact no frogs had been spotted there for decades.
Landowners sued, but were rebuffed by federal circuit court judges in June. They appealed their case, arguing the government can’t designate land as critical habitat for an endangered species that doesn’t even live there.
In an 8-to-6 decision, judges declined to rehear the case. But lawyers representing the landowners said they planned on taking the case to the U.S. Supreme Court.
The ESA actually hurts endangered species as well by undermining the incentive of landowners to protect wildlife. If the legal sanctions weren’t so draconian, many landowners might be persuaded to work with conservationists to protect endangered species. But because the law is so unreasoning and punitive, landowners have the incentive to go scorched earth. If you find a nest of a kangaroo rat, the incentive is not to preserve it, but to burn it quickly before the authorities find out and take control of your land.
Brian Seasholes, an ESA expert, said the current way the government designates critical habitats ends up hurting more species than it helps.
“Ironically, this decision will most likely end up harming the dusky gopher frog and many other endangered and at-risk species by causing more landowners take actions to avoid the Endangered Species Act’s draconian penalties,” Seasholes told TheDCNF.
Seasholes said landowners have taken drastic actions to keep endangered species off their lands, “including ‘scorched earth’ (destroying habitat), ‘shoot, shovel and shut-up’ (killing species), going silent, denying researchers and government personnel access to their land, and refusing to become involved in species conservation efforts.”
Furthermore, I confess that I don’t even understand the point of the Endangered Species Act. In all seriousness, what is the point of this law? Ostensibly it is to prevent species extinction, but extinction has always occurred since the beginning of life on Earth. Something like 99 percent of all the species that ever lived are extinct. Life on Earth is in a constant state of flux, with old species being replaced by new. To stop species extinction is simply not possible. So why even try?
Environmentalists argue that human activity has caused a dramatic increase in the rate of extinction. But the fact is that nobody really knows how much higher the extinction rate is now compared to the rate that prevailed prior to human civilization.
Some environmentalists claim that tens of thousands of species are going extinct every year.
In 1979, Berkeley ecologist Norman Myers published a book called “The Sinking Ark,” which claimed 40,000 species were disappearing each year. The next decade, a biologist who worked for the World Wildlife Fund predicted up to 20 percent of all species would disappear by the turn of the millennium. That didn’t happen, but the drumbeat of alarms continues: A much-publicized paper in 2004 warned that by 2050, climate change could put 1 million species at risk of extinction.
Stuart Pimm … published a paper this summer warning that species are currently dying off at 1,000 times the rate they were before the human era, and in the future are likely to perish at 10,000 times that rate.
These numbers, however, are just guesses and not based on documented extinctions. The amount of documented extinctions is comparatively tiny.
The International Union for Conservation of Nature, which keeps the most definitive list of extinct and threatened species, has counted just over 800 total confirmed animal extinctions since the year 1600.
So that’s an average of about two per year, not tens of thousands. And these are extinctions due to all causes, not just human activity. The late economist Julian Simon noted the following excerpt from a 1992 book written by two ecologists.
[F]orests of the eastern United States were
reduced over two centuries to fragments totalling 1-2% of their original extent…during this destruction, only three forest birds went extinct — the Carolina parakeet … the ivory-billed woodpecker … and the passenger pigeon …. Although deforestation certainly
contributed to the decline of all three species, it was probably not critical for the pigeon or the parakeet (Greenway, 1967). Why, then, would one predict massive extinction from similar destruction of tropical forest?
(Simberloff, 1992, p. 85)
Closer examination of the existing data on both well-and little-known groups, however, supports the affirmation that little or no species extinction has yet occurred (though some may be in very fragile persistence) in the Atlantic forests. Indeed, an appreciable
number of species considered extinct 20 years ago, including several birds and six butterflies, have been rediscovered more recently. (Brown and Brown, 1992, p.
So 200 years of destruction and absolute devastation of the virgin forests of the eastern U.S. caused between one and three bird extinctions. That’s it.
Scientists don’t even know how many total species exist, as estimates range widely from 2 million to as many as 100 million. The claims of high extinction numbers are based on assumed species number near the high end of the range.
There’s a sense in which the big numbers, however, tend to work against the conservation argument. If there are 100 million species, and a huge number go extinct due to natural causes, why should humans bear significant costs in order to save just a few species here and there? Why should one frog make thousands of acres off limits to humans? Especially since that frog might be unlikely to survive the next glacial period, a few thousand years from now. Why should the timber industry be devastated because of the spotted owl?
And in any event, if we do care about insuring that these species do not disappear forever, we have the ability and technology to preserve their genetic line even if they can no longer live in the wild.
Don’t get me wrong; I like animals, and I’d be genuinely bummed if, say, rhinos or lions went extinct. I’m sure millions of other people feel the same way, and for that reason, it would be desirable to expend considerable resources to protect them.
The other consideration is how important the species might be to the broader ecosystem. So for instance, plankton dying out would be catastrophic because it would threaten whales and other marine animals.
It seems pretty clear, however, that trying to preserve any and every species with little or no regard to cost makes no sense. Yet that is essentially the mandate of the ESA, perhaps the most irrational law on the books.