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The Endangered Species Act: Are State Backstops Sufficient?

Monday, October 16, 2017

The federal Endangered Species Act (ESA) enjoys considerable popular support and provides enormous ecological and other benefits beyond the protection of particular species. Yet the Act is not without its skeptics—longstanding calls to overhaul the Act have only gained traction in the 115th U.S. Congress and new Donald Trump Administration.

State laws may be insufficient to implement the Endangered Species Act without federal support.

Earlier this year, the Western Governors’ Association called for states to be “provided the opportunity to be full partners in administering and implementing the ESA.” Earlier this month, a bill from Rep. Dan Newhouse (R-Wash) providing for greater state involvement has advanced in the U.S. House of Representatives. And Sen. John Barrasso (R-Wyo.), chairman of the Senate Environment and Public Works Committee, is expected to introduce legislation that would devolve ESA authority and responsibility from the federal government to states.

Increased coordination between the states and federal agencies regarding threatened and endangered species may be desirable, and opportunities for partnerships between states and the federal government may enhance species protection. Yet as reported in the October issue of ELR’s News & Analysis, a close analysis of current state laws and state-level experience reveals that conservation laws in most states are inadequate to achieve the ESA’s conservation and recovery goals.

Based on a study by the University of California, Irvine’s Center for Land, Environment, and Natural Resources, Assessing State Laws and Resources for Endangered Species Protection provides a comprehensive analysis of state endangered species laws and state funding to implement the federal ESA. The authors note that while a large number of states have adopted laws to complement the ESA, these laws fundamentally rely on the more comprehensive federal regime as a foundation for their comparatively modest protections. As a result, without significant state law reforms in most states, devolution of federal authority to the states is likely to undermine conservation and recovery efforts, lead to a greater number of species becoming imperiled, and result in fewer species recovered.

In addition, state expenditures on the conservation of federally listed species make up only a small fraction (approximately 5%) of total ESA spending. As a result, any substantial devolution of responsibility to the states to implement the ESA would require a massive expansion of state funding. According to the authors, if the federal government were to cut federal funding, states would be unable to protect an overwhelming majority of the known threatened and endangered species. Moreover, given that existing state laws are in the vast majority of cases weaker than federal legislation and more limited in application, and that many listed species occur on federal lands, any proposal to transfer federal funding to states in the form of block grants is likely to lead to a lower level of protection for currently imperiled species.

The authors conclude that without significant state law reforms in most states, the proposed rollback of federal authority and responsibility over threatened and endangered species is likely to undermine conservation and recovery efforts, lead to a greater number of species becoming imperiled, and result in fewer species recovered.

Download the full article here.

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