The Endangered Species Act isn't broken, but is its implementation faltering?

We’ve all heard them. Claims from powerful special interests and members of Congress blaming federal environmental regulations for a host of economic maladies. The Clean Water Act, Clean Air Act and the Endangered Species Act (ESA), are vilified with alarming regularity.

The latest round of baseless claims about the supposed onerous economic impacts of the ESA led anti-environmental members of Congress to propose 88 legislative attacks on the act in 2015, all designed to block or remove protections for America’s most imperiled wildlife and undermine the strength and effectiveness of the act.

If these claims of economic doom and gloom purportedly caused by the ESA had any foundation in fact, this would be a serious problem warranting close attention. Fortunately, the adverse economic impacts attributed to the ESA have no basis in “fact” and we now have compelling new peer-reviewed data to prove it.

An analysis published in December in the Proceedings of the National Academy of Sciences assessed a key provision of the ESA:  Section 7 consultations. Section 7 requires all federal agencies to consult with the U.S. Fish and Wildlife Service (the Service), or the National Marine Fisheries Service, (which was not part of this analysis) to ensure that the actions they are considering funding, authorizing, or carrying out are not likely to “jeopardize” a listed species or “destroy or adversely modify” designated critical habitat. As a practical matter, this means that proposed projects cannot threaten a species’ survival.

The new analysis found that since 2008, not one of the over 88,000 projects the Service consulted on was stopped because the Service concluded it would threaten a species’ survival. Although the Service did find that two projects would initially jeopardize a species, both ultimately moved forward because they adopted economically feasible alternative conservation measures designed to reduce impacts to listed wildlife. But, while this study shows that claims of the ESA causing economic devastation are groundless, it also raises new questions about how effectively federal agencies are implementing Section 7.

The ESA gives the Service broad discretionary conservation authority. This authority under Section 7 is designed to allow the Service’s wildlife biologists to use their best professional judgement to evaluate projects and to identify economically feasible modifications that would avoid threatening a listed species survival.  The study shows that the Service’s track record of evaluating projects over the past seven years is at odds with past history of the consultation process.

For example, during the Reagan and Carter administrations, which are the only other times these type of data were evaluated, it was more common for the Service to conclude that proposed federal projects or actions would threaten a species’ survival. For example, from 1979-1981, the Service evaluated 10,762 proposed actions and found that 173 would jeopardize a species. Only two of these projects, however, were ultimately cancelled or withdrawn. A similar pattern occurred with consultations from 1987-1991. During that time, the Service completed 73,560 consultations, finding that 350 projects were likely to threaten a species’ survival. But of those projects, only 18 were blocked or cancelled because there were no feasible alternatives to the projects.

Even though the Service was making a steady but modest number of jeopardy calls during these earlier study periods, over 99 percent of all projects still proceeded with only limited modifications, again dispelling the myths that the ESA permanently blocks projects and harms thousands of jobs across the country.

This past history of Section 7 consultations now raises the question as to why since 2008, the Service found that only two projects could potentially jeopardize a species compared to the 173 and 350 jeopardy calls it issued in earlier study periods. This is a dramatic shift in consultation findings.

Have federal agencies become that much better at planning projects so as to avoid jeopardizing imperiled species? Or, is the Service so starved of funding and staff that it can only give superficial and cursory looks at proposed projects? A third option: could the Service be discouraging its Section 7 biologists from issuing jeopardy opinions to avoid controversial or confrontational disagreements under the ESA? Might the answer be a mixture of all of the above explanations?

We currently don’t know the answer to these questions, but it is essential that an answer be found. We intend to do just that.

These data point to very real questions regarding the present and future implementation of the Section 7 consultation process and whether the Service has quit making tough biological calls under Section 7 needed to conserve listed species. Section 7 is a critical component of the ESA, and if it is not being implemented correctly, the ultimate goal of the ESA – saving species – could be severely undermined.

The ideal world is where Service biologists feel empowered to call the jeopardy balls and the strikes as they see them during the consultation process, and then work closely with affected agencies to identify feasible pathways forward. This is a world that works best for listed species, best for the integrity of the ESA and best for our nation’s economy. It is a world that we all should endorse.

Originally published on Huff Post Green.