The United States Senate recently passed two Congressional Review Act resolutions to undo Biden administration rules updating the Endangered Species Act. The two Endangered Species Act rollbacks would tighten the definition of ‘critical habitat’ while the other would update some federal bat protections.
Animal loving advocacy groups are inciting panic about overturning the Biden administration’s rulemakings, but the Senate’s resolutions would rein in regulatory overreach.
Problems for Animals Caused by the Endangered Species Act
Congress passed the Endangered Species Act (ESA) 50 years ago as a response to declining animal and plant populations. While well-intentioned, critics have long observed that the ESA has threatened private property rights and created perverse incentives for species and habitat protection.
Speaking about species protection, Fish and Wildlife Service Director Sam Hamilton once observed:
“‘[T]he incentives are wrong here. If a rare metal is on my property, the value of my land goes up. But if a rare bird occupies the land, its value disappears.’ The ESA restricts the use of land where rare species and their habitats are found, in effect penalizing landowners for having conserved them. These provisions are exclusively punitive; they do not encourage and reward past or future habitat restoration or other recovery efforts. Thus, the ESA can make species and their habitats a significant liability that landowners do well to avoid, rather than an asset to conserve and enhance.”
ESA regulations placed upon property owners have led to a grim saying that most conservationists are familiar with: shoot, shovel, shut up. By making it incredibly difficult for property owners to coexist with endangered species, the ESA often ends up creating incentives for property owners to kill these animals rather than protect them.
Discouraging delisting statistics and the accidental incentivization of property owners to kill listed species should make all environmentalists want to radically reform the ESA. But in reality, it keeps being expanded. This leads us to the Endangered Species Act rollbacks currently making their way through Congress.
What Would Change Through These Rollbacks?
Senator Cynthia Lummis (R-WY) introduced the proposed reforms to address rules passed by the Biden administration. The first Biden administration rule reversed a 2020 change to handling ‘critical habitat.’ The Trump administration had tightened the definition to only include habitat that could currently support an endangered species, but the Biden rulemaking last year reversed this change.
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With the Biden administration expanding the ability to define critical habit, practically any property has the potential to receive this designation and the regulations that come with it if the federal government says so. If the definition for critical habitat remains vague, property rights could be impeded and development held up by red tape. Returning to a more defined definition as set by the Trump administration would allow for habitat protection as needed without the same vague roadblocks in place.
The second reform addresses the Biden administration’s expansion of federal protections for the northern long-eared bat. Listed as threatened in 2015, the process to shift the species’ designation to endangered has been in the works due to a disease that has been spreading from bat to bat.
On paper, this seems like the right move to help the bats. But with the listing change comes new regulatory hoops to jump through, most of which do not have direct ties to the disease causing the problems in the first place. One of the most direct consequences is that projects under construction could come to a grinding halt.
It would be a tragedy if the bats were to disappear. But there are more specific ways to help mitigate the spread of disease than to shut down development. One would be to close off the caves and abandoned mines on federally owned land where disease spread is most prevalent. Educating cavers and property owners who have caves on their land about proper decontamination procedures upon exiting caves would have a significant impact too. But instead of pursuing these options, the federal government chose to enact blanket restrictions with an ESA reclassification.
Over the past three years, the U.S. Fish and Wildlife Service has conducted ESA consultations in connection to the bats on nearly 25,000 projects across 37 states, most of which are not yet completed. A change in listing will force uncompleted projects to get through more red tape which could have a significant negative impact on local economies.
Expanding the definition of critical habitat and changing the northern long-eared bat’s listing status are not harmless changes. These two rules from the Biden administration would bring significant negative consequences for property owners and local growth for negligible benefits to local wildlife or endangered species.
Protecting endangered animals is a worthwhile effort, but overreaching regulations from the federal government can be costly, ineffective and fraught with unintended consequences. Reforming vague and overreaching efforts to more carefully walk a line that better aligns incentives and works with property owners could help eliminate some of the ESA’s harmful side effects.
Kelvey Vander Hart is a native Iowan, a member of the American Conservation Coalition, and a communications specialist at Reason Foundation.