The Endangered Species Act is a mess. While attempts to preserve species from extinction are nobly intentioned, the inflexible and unreflective way that the ESA seeks to accomplish this goal has been the source of example after example of the law of unintended consequences in action. ESA provisions have increased the risk of forest fires and impeded efforts to recover from fires. It has denied access to available water during California’s severe drought and threatened to do so with Texas. It has been used to block infrastructure, and industry, all without respect to cost.
Given all this, it is unsurprising that the ESA has not been reauthorized since 1988. Support for reforming the ESA has been building in recent years, and last week culminated in passage of ESA reform legislation in the U.S. House of Representatives:
The legislation, H.R. 4315, the Endangered Species Transparency and Reasonableness Act, passed by a vote of 233 to 190, combines four bills previously marked up by the House Natural Resources Committee, and will be beneficial to updating and improving the Endangered Species Act of 1973. “The ESA, while designed to protect species from endangerment of extinction, has proven to be ineffective and immensely damaging to our members’ ability to stay in business,” said Brice Lee, Public Lands Council (PLC) President and Colorado rancher. “During the nearly 40 years since the ESA was passed and over 25 years since Congress last reauthorized the law, our industry has come to recognize the Act as greatly flawed and outdated. Less than 2 percent of species placed on the endangered species list have ever been deemed recovered.” H.R. 4315 will require data used by federal agencies for ESA listing and proposed listing decisions to be made publicly available and accessible. The bill also requires the interior secretary to report and comprehensively track all litigation costs associated with the Act. Furthermore, the bill caps hourly fees paid to attorneys that prevail in cases filed under ESA, consistent with current law.
Whether the Senate will take up the bill remains to be seen.