Share |

Fixing the Endangered Species Act

Randal O’Toole

Though written with the best of intentions, the Endangered
Species Act has a fatal flaw that makes it both expensive and
ineffective. To date, efforts to improve the law have tinkered
around the edges without addressing this flaw.

Most people, including many critics of the law, agree that
biodiversity protection benefits everyone. Yet the flaw in the law
is that it often imposes all the costs of protection on a few
people. Those forced to pay the cost end up resenting wildlife,
while many of those who benefit without paying the costs themselves
accuse the law’s critics of being selfish and short-sighted.

Imagine that we tried to use the same system to build the
Interstate Highway System. The Bureau of Public Roads would draw
lines on a map indicating where the roads would go. All private
owners of the land crossed by the lines would be required to tear
down any improvements and replace them, at their own expense, with
a road meeting federal standards.

Though written with the
best of intentions, the Endangered Species Act has a fatal flaw
that makes it both expensive and ineffective.

Just as very few miles of interstate highways would ever be
built under such a system, few endangered species will easily be
saved under the same type of system. Even where the roads (or
endangered species) are on public lands, public land managers would
resist the road construction mandate if it was unfunded, just as
many resist the mandate to protect biodiversity.

There are two ways to fix this flaw. One is to create a
multi-billion-dollar fund to pay people to protect endangered
species and biodiversity. One way to raise money for this fund is
to charge recreation fees at fair-market value on public lands and
dedicate a share of those fees to biodiversity.

The second solution is to allow people to own fish and wildlife.
This is not as radical an idea as it sounds: under British common
law, wildlife were owned by the owners of the land on which the
wildlife resided. Fisheries could also be privately owned. Owners
of fish and wildlife had incentives to protect their property from
those who would overhunt or overfish them or harm their

This law created resentments because a handful of aristocrats
owned nearly all the land in Britain. So Americans — not
realizing that landownership here would end up being more evenly
distributed — changed the common law in this country because
they felt wildlife should belong to everyone and not just the

This change in the common law doomed such species as the eastern
elk, Merriam’s elk, and the passenger pigeon, all of which would
probably survive today if landowners had an incentive to protect
them. With the change, no one had any incentive to try to protect
wildlife or fish from habitat destruction or overharvesting, and
while the states had the authority to do so, they didn’t begin to
exercise this authority until around 1900, and then only for
huntable wildlife and fish.

We know private involvement can work because private groups
greatly assisted in the recovery of the peregrine falcon. Despite
this, the Fish and Wildlife Service has resisted the idea of
private ownership to help recover other species. Yet private
ownership of various strains of salmon and such rare species as the
black-footed ferret and Utah prairie dog would significantly
increase their chances of survival.

Private ownership would work even for species that don’t have a
direct economic value, as anyone who has been to a dog show should
realize. Dog breed enthusiasts put enormous efforts into protecting
their breeds even though it earns them nothing but a blue ribbon
and the admiration of their peers. Offering, say, a ribbon to
anyone who successfully raises a black-footed ferret and releases
it into wild where it survives long enough to breed would harness
that energy for endangered species and go far toward restoring

Private ownership might not work for every species, so the best
solution would be a combination of the two: Use private ownership
as much as possible, then a biodiversity fund out of recreation
user fees as a fallback measure. Any changes to the Endangered
Species Act that fail to address the fundamental flaw in the law
will fail, and the best way to fix that flaw is to give people
incentives and rewards for protecting species.

is a senior fellow with the Cato Institute. He wrote
this for