Is endangered species reform in the offing?

For many years, defenders of property rights and limited government have advocated for reform of the Endangered Species Act. Not surprisingly, recent ameliorative efforts have gone nowhere thanks to divided government. But with the Legislative and Executive Branches now controlled by the same party, some amendments to the over forty-year-old law may be plausible. Late last month, efforts commenced with H.R. 717, written by Representative Pete Olson of Texas. The so-called “Listing Reform Act” would make three changes to the process by which species are considered for protection.

First, the bill would forbid the Fish and Wildlife Service from, as a general rule, prioritizing petitions to list species over petitions to delist species. This would be a change from the Service’s longstanding practice of prioritizing listing and uplisting petitions over delisting and downlisting petitions.

Second, the bill would eliminate the current requirement that the Service make a decision on a petition within 12 months of its receipt. Instead, the Service would be obligated to act “As expeditiously as possible.” This change would make the 12-month finding process consistent with that for making initial findings on petitions. The Act requires the Service to make an initial finding on whether a petitioned action is warranted within 90 days, “[t]o the maximum extent practicable.”

Third, and perhaps most significantly, the bill would give the Service the power not to list a species as threatened, if the listing (or the critical habitat designation that would be triggered by the listing) would be likely to produce “significant, cumulative economic effects.” Currently, the Act does not allow the Service to consider economics when deciding whether to list a species; such considerations are allowed only in the designation of critical habitat. Moderating a species’ protections according to the costs of those protections is a reform idea that has been popular among property rights advocates. See, e.g., Damien M. Schiff, The Endangered Species Act at 40: A Tale of Radicalization, Politicization, Bureaucratization, and Senescence, 37 Environs 105, 128-31 (2014).