What You Need to Know About How the Endangered Species Act Works: Federal vs. State Protections
When the federal government lists species under the Endangered Species Act (ESA), it takes over primary management of those species from the states. Most species warrant federal ESA listing only after a state or states have failed to adequately conserve the species under state law. That’s why the ESA is commonly referred to as a “safety net” for species on the brink of extinction. It is the last line of defense when other efforts prove inadequate to save an endangered species.
Despite the notable shortcomings of state endangered species laws, there has been a renewed and vigorous effort by many states to press for more legal authority to manage ESA-listed species. Some even want to be co-equal partners with the federal government in managing those species. The Western Governors’ Association, for example, recently stated that states should be “provided the opportunity to be full partners in administering and implementing the ESA.” And some members of Congress have introduced legislation to give states a far greater role under the ESA.
States Ill-Equipped to Save Wildlife
But are most states even able to take on these added responsibilities? Surprisingly few people have tried to answer this fundamental question. Fortunately, several law professors and students at the University of California, Irvine released a timely report last week that sheds light on this question.
The researchers evaluated the endangered species laws of all 50 states, comparing how they stack up against the federal ESA. Their overall conclusion is grim: “conservation laws in most states are inadequate to achieve the ESA’s conservation and recovery goals […] without significant state law reforms in most states, the proposed devolution of federal authority and responsibility over threatened and endangered species to states is likely to undermine conservation and recovery efforts, lead to a greater number of species becoming imperiled, and result in fewer species recovered.”
A Deeper Dive into Species Conservation
How did the researchers arrive at this conclusion? Let’s start with the basics: what types of species qualify for protections? The ESA can protect any plant or animal threatened with extinction, but only 18 states have laws that come close that the level of ESA protections. Further, only 4 percent of states have substantial authority to promote recovery of endangered species and only 10 percent have significant habitat safeguards. And West Virginia and Wyoming have no endangered species laws.
Listing Species
Science is an essential pillar of good wildlife management, but only 27 states require the use of scientific evidence in listing or delisting species. Additionally, 15 states don’t require any clear or convincing evidence in making listing decisions, essentially exposing species listing decisions to political whipsawing. By contrast, the ESA requires the federal government to use the best available science in every listing decision.
Enforcing Species Protections
But listing a species is just the beginning, as the protections and conservation measures afforded to listed species are what ultimately matter. The report finds that 76 percent of states fail to provide authority to designate critical habitat for threatened and endangered species and don’t require their agencies to consult with the state wildlife agencies on how state-sponsored projects affect endangered species. Only five states prohibit habitat modification that kills or injuries endangered species. And only two states authorize their wildlife agency to develop recovery plans for endangered species. By contrast, all three of these conservation measures are important tenets under the ESA.
The researchers also found that, on average, states spend only about a quarter of what the U.S. Fish and Wildlife Service spends on ESA protected species and 5 percent of what other federal agencies spend. So even if states had the legal authority to adequately conserve endangered species, they don’t have the funds to match what the federal government provides through the ESA. In fact, current state spending for imperiled species is largely derived from federal funding sources, not independent state sources.
In short, although a few states have strong laws on endangered species, most others fall short of the conservation measures the ESA provides. If you’d like to see how your state measures up, Defenders Center for Conservation Innovation has developed a simple-to-use app that uses the data from the UC Irvine report to show how individual states endangered species laws compare.
Fighting to Keep the ESA Effective
The UC Irvine study concluded that, “without significant state law reforms in most states,” devolving federal responsibility of endangered species protection to the states would hurt species conservation. This highlights the importance of protecting our nation’s most effective wildlife conservation law especially as it continues to face more severe threats in Congress. Defenders continues to actively defend the ESA against the current spate of legislative attacks—there have been more than 170 legislative attacks since January 2015–and to identify ways that states can collaborate more effectively with the federal government on endangered species recovery.
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