New Data Reveals How the Endangered Species Act Protects Endangered Species

At the Center for Conservation Innovation our mission is to find new and improved ways to protect species that are close to the brink of extinction, like the North Atlantic right whale. Less than 450 of these animals are left in the world, and they are threatened by ship strikes and entanglement in commercial fishing gear. We work at the intersection of science, technology, and policy to examine the inner workings of different conservation laws and programs. Understanding how these conservation efforts work on the ground can improve species protection in two ways. First, we can identify the strengths and weaknesses of these efforts so that we know what works and what doesn’t. Second, we can dispel misunderstandings. Most people support endangered species protection, but the details of how different organizations, states, and countries achieve these protections can be confusing. By providing a full and accurate picture, we can help ensure future decisions are made by looking at sound science and not disinformation. Recently, we dove into a large, newly available dataset to understand how one of the most important provisions of the Endangered Species Act works.

The Endangered Species Act (ESA) is one of the strongest laws in the world that protects species threatened with extinction. The ESA achieves these protections through several regulatory mechanisms, such as the prohibition against harming, harassing, or killing any endangered animals . Another important part of the law requires U.S. federal agencies to make sure that any actions they take, authorize, or fund do not ‘jeopardize’ (i.e., put at risk of extinction) listed species. Federal agencies do this by consulting with one of the two services that implement the ESA — the US Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS). For example, if the Army Corps of Engineers wants to dredge shipping lanes around Norfolk harbor, they must first check with NMFS to make sure the action will not jeopardize North Atlantic right whales, or any other listed species. If NMFS determines the action will jeopardize a listed species, they recommend changes to the project that will allow it to proceed without endangering those species. This process is known as consultation.

The consultation process is one of the most substantial components of the ESA, but the details of how this program is carried out are not well-known. Defenders analyzed data provided by NMFS that was recorded during every consultation to find patterns in the species, agencies, and types of projects involved in the process. We were especially interested in how often NMFS and federal agencies agreed on the impacts of a proposed federal action to listed species. Agreement is an important component of the consultation process because it can indicate how well agencies could protect listed species on their own. The Army Corps might conclude that their dredging plans will not harm right whales, but do species experts at NMFS agree? We discovered that in a majority of cases (79%) federal agencies and NMFS agreed on how their actions would affect listed species. We also found that the frequency of jeopardy was extremely low in all consultations (0.3%). That means the consultation process works smoothly to approve federal actions while ensuring listed species are not jeopardized.

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USFWS

The cases of disagreement between agencies and NMFS over how actions would affect species illustrated why the consultation process is important, and where it could be improved. Most instances of disagreement (71%) involved federal agencies underestimating the effects of their actions on listed species relative to NMFS’s conclusion. This finding emphasizes the importance of the independent oversight provided by consultations to protecting endangered species. Assuming the findings of dedicated species experts at NMFS were accurate, these instances of underestimation represented cases where endangered species would have been harmed if federal agencies proceeded with their actions without consultation. Critically, in a few cases (22 actions affecting 14 species), the very existence of species would have been jeopardized by federal actions. The data tell us that NMFS, as one of the two the expert agencies dedicated to the implementation of the ESA, is vital to ensuring marine threatened and endangered species do not go extinct.

Other federal agencies also overestimated the effects of their actions on listed species in ~10,000 consultations (29%). While these were less than a third of the cases of disagreement, overestimation by agencies can lead to more extensive consultation — and therefore greater expenditure of resources — than might be necessary. That time and money can add up over 10,000 consultations. Therefore, our findings highlight an opportunity to improve the consultation process. One possible solution to help federal agencies overestimate the effects of their actions on listed species less frequently is to develop clear, quantitative guidelines for estimating these effects. Guidelines like this have been developed in the past for common activities affecting listed species and expanding the types of projects and species with guidelines could create a more streamlined consultation process.

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Tory Kallman

Opponents of environmental protection often accuse laws like the ESA of unnecessarily and excessively preventing economic development. Although this myth has been dispelled by this and other research (see previous peer-reviewed work from Defenders), corporations and lawmakers continue to try to weaken the consultation process by reducing or eliminating the role of species experts at FWS and NMFS under the guise of making consultation ‘more efficient’. However, these proposals could have disastrous consequences for endangered species. As these kinds of rollbacks continue to be seriously discussed, it is more important than ever that we have our facts straight so we can develop policies that make the ESA both efficient and effective. Weakening the ESA will not make it better. Our work demonstrates that by using data and science we can find ways to improve conservation laws without sacrificing species protections. To have a chance at recovery, right whales and other endangered species need the continued protection of dedicated biologists at NMFS and FWS.