Yesterday I appeared on NPR’s Dianne Rehm Show to discuss the Endangered Species Act. The show was prompted by Congressional passage of a budget rider removing gray wolves in the northern Rockies from the endangered species list. This was the first time Congress ordered a species delisted, and prompted complaints that Congress was intruding into science’s domain. Such complaints have some merit — it would have been preferable for Congress to enact a rider removing the wolves’ regulatory protections than altering their endangered status — but they also fail to acknowledge how the structure of the ESA puts science in the crosshairs.
Listing a species as “endangered” or “threatened” under the ESA triggers a host of regulatory protections. The Act’s prohibitions kick in automatically, so landowners and others take actions that could harm listed species at their own risk. Both as written and as interpreted by the courts, the ESA affords the Fish & Wildlife Service with relatively little discretion. Further, the Act authorizes private enforcement through citizen suits, which can further ties the FWS’s hands. This structure was intended to ensure vigorous protection and prevent agency shirking, but it has also encouraged the politicization of species science and discouraged reliance on non-regulatory conservation strategies.
Congress delisted the wolf less because members doubted the scientific justification for the wolves’ listing than because relevant constituencies objected to the regulatory constraints imposed by the wolves’ endangered status. Yet the Act does not give the FWS much ability to regulate less, or rely upon non-regulatory conservation strategies, so opponents focus on whether a species should be listed at all. By the same token, activist groups seeking to trigger extensive regulatory controls seek to have species listed so as to force the government’s hand. In passing the wolf rider, Congress simply followed the lead of those interest groups that fight over listing decisions so as to alter the incidence of species regulation.
Whether gray wolves merit regulatory protection in the northern Rockies is a question of policy, not science. It is a question of what we should or should not do, not a question of what is. Scientific research can (and should) inform this decision. It is useful to know how many wolves there are, whether the population is stable and has a critical mass, what sorts of things disrupt or degrade wolf habitat, and so on. There are also judgments to be made about the costs and consequences of different conservation strategies. Science may illuminate the extent of the trade-offs, but it cannot tell us which option to choose.
Because whether to regulate on wolves’ behalf is a question of policy, it is precisely the sort Congress should make. But it is also a decision Congress should make candidly, as a policy decision. Neither supporters or opponents of the relevant regulatory measures should hide behind the science — nor should the ESA. The scientific judgment that a species is in danger of extinction should be separate from the policy judgment of what to do about it, yet the ESA’s structure precludes such an approach. Environmentalists fear, with some justification, that decoupling regulatory controls from the listing decision would result in a significant loss of protection for some species. Yet as I explain in my contribution to my forthcoming book, Rebuilding the Ark: New Perspectives on Endangered Species Act Reform, imposing prescriptive regulations does not always help conserve endangered species, and in some cases likely does more harm than good. Listing alone does not improve a species status, and yet millions are spent fighting over listing decisions in an effort to influence listing decisions. This is not a rational way to conserve endangered species.