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The Top 10 Ways the ESA is outdated, as told by other outdated things from 1973

In practice, an Endangered Species listing often leads to permanent, private property land-use restrictions that negatively impact local economies and result in expensive, never-asending litigation.

On the 10th annual Endangered Species Day, we're taking a look back at all of the ways the Endangered Species Act is stuck in the 70s, as told by other things that happened (and are no longer relevant) in 1973.

P.S. There's a bonus you won't want to miss. 

1. It is not recovering species 

The Endangered Species Act (ESA) is supposed to prevent species from going extinct, but the results just aren’t there. Since the law was enacted in 1973, more than 1,500 U.S. domestic species and sub-species have been listed as endangered; however, only, at best, two percent have been recovered. The long lines and red tape of the U.S. Fish and Wildlife Service as it relates to the ESA is more like a traffic jam than a fluid stream. The stagnant nature of the endangered species list is reminiscent of another historical event from 1973: The Oil Crisis.  OPEC placed an oil embargo on the United States and as oil supplies shrunk, lines at the pump grew. Desperation and thievery became so commonplace, sales of gasoline tank locks increased dramatically and their prices doubled. The difference is that once the oil market rebounded, the lines disappeared and gas pumps were unlocked. Unfortunately our recovered species haven’t been as lucky.


2. Just what is the goal here?

Many ESA champions point to its effectiveness as a land preservation tool, but its supposed intent is to preserve species. The question becomes which is which: Are you saving species to preserve the land, or the land to preserve the species? And just where do private property owners fit into all of this? The confusion and veiled ulterior motives are eerily similar to the year’s highest grossing movie, The Sting. The elaborate schemes and lengths the key players go to in order to get what they want are so in step with the controversy surrounding the ESA, it begs the question are America’s landowners getting conned? Given the ESA’s two percent recovery rate for designated species, we may be on to something.

3. Either way, the correlation just isn’t there

The largest quarantined areas are for the desert tortoise and northern spotted owl. But giving these species huge swaths of land has not stopped them from declining. Non-human caused catastrophic wildfires tear through the habitat making it uninhabitable for the animals. So now we have a situation where economies suffer because development is banned, designated habitats are charred, and the government solution falls flat. The idea of government regulating land to save species seemed to make sense...but then again so did “the big freeze,” and the impending doom of another ice age. Just a couple of years after the ESA was enacted, scientists around the world made headlines for plans to cover the Arctic with black soot in order to save the planet from global cooling.

4. Endangered Species Act or Endangered “Species” Act

Going back to number two, the question of the ESA’s overall goal, it is starting to look less like preservation and more like blatant government control. The law includes broad legal provisions that were originally designed to enable citizen suits to enforce the act.  Increasingly, ESA designations are driven not by science but litigation – litigation that is primarily driven not by citizens but national special interest environmental groups. These groups go to great lengths to make sure the federal government has involvement far beyond necessary. Under the current ESA, environmental groups have the ability to file 10, 15 and 20 lawsuits and petitions at a time for hundreds of species simply because these animals range over landscapes they covet. Those who use the ESA for personal or political gain are definitely in step with the times, as there is no song more fitting for this totalitarian attitude than the number one single of 1973: You’re So Vain by Carly Simon. Like the inspiration for the song, why D.C. bureaucrats need to be involved with state-specific issues is also still a mystery.

5. Did you say 20 lawsuits at a time?

Yes, yes we did. Since 1973, the ESA has become a favorite among litigation abusers. Due to unrealistic timelines and purposely ambiguous language, the ESA is basically asking for frivolous lawsuits. In its own work plan, the FWS states, “Limited resources and an ever-increasing workload have led to litigation over nearly every aspect of the listing program. Litigation obligations have made it difficult for the Service to manage its workload based on biological priorities.” The ESA only gives the federal government 90 days to respond to a petition to list a species, and if that time elapses, environmental groups can sue and almost always get attorneys' fees paid. These lawsuits have nothing to do with whether or not the species risks extinction, but only that a deadline was missed by the FWS. If anyone else is calling for order in the court, don’t worry. You are not alone. 1973 was about more than mythological ice ages and 8-track cassettes. It was also the year of one of the most prolific courtroom dramas in American history: the Watergate Scandal. After dominating headlines for the majority of the year, it culminated in the resignation of President Nixon, the indictment of 69 people, and the incarcerations of 48 White House administration officials. Isn't it time to bring the ESA into slightly more modern and transparent times?

6. It’s irrelevant

We aren’t saying the ESA wasn’t groundbreaking at the time. It most certainly was; however, many of the dominant practices in species recovery, like adaptive management, only came along in the late 1970s and 1980s, which was after all of the major environmental laws were passed. So the concerns that drove the legislation of the 1960s and ’70s aren't the same concerns that people are dealing with now. The concerns that drove the ESA’s enactment aren’t the only things obsolete from the 1970's. It’s also a decade defined by the disco era's bell-bottoms, hip huggers, and platform shoes. These fashion trends share a lot in common with the ESA. Both have connections to foxes and were immensely popular back then. Unlike most people's since-retired catsuits, the ESA is still actively dancing its way across the American West.  

7. It tends to over complicate things

Of the less than roughly two percent of species that have recovered since 1973, almost all recoveries are due to relatively simple problems. If a species is endangered due to over-hunting or another man-made problem, the logical solution is to stop that activity until the species has recovered. The difficulty we have now is when the ESA blocks economic activity for problems not caused by humans. Case in point: the Northern Long-Eared Bat threatened by a fungus. The solution doesn’t always fit the problem. The ESA wasn't the only over-complicated technology born in 1973. The year also boasts the invention of the personal computer and the cell phone. But that’s where the similarities end. While the cellphone and the computer continued evolving into the sleek, modern tools we all know and love, the ESA stayed stagnant. Today, it is more like that the first, two-pound version of the mobile phone than the smartphones they've grown into.

8. BAD Science

The ESA has created a faulty system where many species are listed under false premises at the start. The government relies on speculation, information from biased government agencies, and insufficient measurable data. The FWS draws conclusions using “the best scientific information available.” The problem with using the Best Available Data – or BAD – Science is the loophole it creates. This strategy allows federal agencies to implement sweeping and often economically devastating regulations based on information that does not need to be verified, reliable, conclusive, adequate, verifiable, accurate, or even good. The problem with relying on the “best available data” is the argument that hindsight is 20-20. There is no better example of this than the seven awards given to O.J. Simpson for various moral and athletic achievements in 1973. Simpson’s decline is a clear indication of just how much things can change over the course of 42+ years.

9. We need better arrangements with the states

While the ESA says that the states and federal government “should cooperate wherever practicable,” it does not say what that means. Those who are familiar with the time period should not be surprised. 1973 is the essence of all things basic – after all, it was the time of only seven television channels. While the television and broadcasting has continued to evolve, fish and game experts are left wondering how to apply the outdated verbiage to entice state fish and game agencies. According to one environmental scientist, finding a solution is essential, as these agencies “have more credibility with the local populations, because they’re the ones that make sure there are ducks in the pond so you can go hunting next year. If we could do a better job with that, it would go a ways toward fixing things.”

10. It might be by the people, but is it for the people?

When Congress passed the ESA in 1973, it explicitly stated economics should play no role in species listings or in the designation of critical habitat. The U.S. Supreme Court supported this stand, ruling Congress’ clear intent was to prevent species extinction, “whatever the cost." Interestingly enough, the ESA isn’t the only big spending trend that started in 1973. It was also the year of the first major Super Bowl commercial advertising Noxzema shaving cream featuring Joe Namath and Farrah Fawcett and the cost was $88,000. Since then, economics has become a central part of both Super Bowl advertisements and the ESA debate. The majority of endangered or threatened species inhabit private land, and therefore a significant portion of the ESA costs are put on the backs of private land owners. By ignoring the economics of species management is not only counterproductive to species recovery; it casts aside the essence of entrepreneurial Americans and their problem solving talents. Just think about all of those landscapes from Ram Truck’s “ Farmer” commercial being shut down for an animal nobody has seen in that area in more than fifty years (ps. The cost of that commercial was more than $18 million).

It wouldn’t be right to discuss the outdated nature of the Endangered Species Act without giving credit to those who worked on its most recent update in 1988. To put things in perspective, this is a photo of the House Committee on Natural Resources Chairman Congressman Rob Bishop in 1989. We think it’s safe to say a lot has changed.