The question is, How? Answering this question is a four-step process:
It is much more productive to view the issue as an institutional problem: Outcomes such as extinction or recovery are a product of institutional design. Given the very same people, some institutional structures are more likely to lead to extinctions while others are more likely to recover rare species.
While quantitative analysis is difficult, the short answer is "no" for three reasons.
At best, the law does nothing about existing institutional structures that give people the wrong incentives. At worst, the law itself creates incentives to destroy wildlife habitat. Recent amendments to the law have modified some of the perverse incentives in the 1973 act, but still have done nothing about the perverse incentives that predated that act.
Many endangered species aren't easily amenable to markets; if they were, they might not be endangered. But some species could be included in the market, yet are not because of government regulation. Other species may not be marketable, but have proxies that are. Market-like incentives could even be created to save many species that are totally unmarketable.
Different Drummer will present a detailed set of proposals in part VI: Solutions. But this section will demonstrate that the Endangered Species Act has ignored an important set of tools.
The classic example is national defense: If your country spends money on an effective defense system, you are just as well defended whether you helped pay for it or not. This situation encourages what economists call free riders: people who enjoy the benefits without paying their share of the costs. To the extent that everyone shares endangered species' benefits--such as healthy ecosystems, potential medical properties, and so on--endangered species are also public goods.
Just having the label "public goods" doesn't really help us in solving, or even understanding, the problem. We know that markets handle public goods poorly because markets are based on individual transactions. Since no one can be excluded, individuals have little incentive to pay for public goods and every incentive to become free riders.
But just because markets do poorly doesn't automatically mean that government will do better. Governments tend to favor the strong and rich over the weak and helpless. Democracy doesn't tend to fix this, even if the poor can out vote the rich, because the rich and powerful are better able to influence voters and their elected and appointed representatives.
Endangered species are not only poor and helpless, they don't vote at all. While they have supporters who do vote, recent elections have shown that that isn't always enough.
This leads to the classic problem of environmental politics, which is that you can never win, you can only delay losing. Put another away, do you really trust Congress to make the decision about how many species go extinct? Different Drummer doesn't, and so we reject the traditional economic view.
Eventually, says the ethical argument, everyone will have such a refined sense of ethics that few would willingly contribute to an extinction, just as today few people would not willingly kill or enslave another person. To guard against those few who would harm species, however, we must have strong laws protecting species, just as we have strong laws against murder or slavery.
We don't reward people for not murdering others; instead, we punish them if they do kill someone. By the same token, endangered species laws should punish people for harming rare species or their habitat. In fact, anyone who would consider harming a rare species deserves punishment, so we should feel no compunction in making such people pay a large share of the costs of protecting wildlife.
The ethical view has several weaknesses. First, although everyone may agree that murder is wrong, we have far less agreement about other issues, including abortion, drug use, and endangered species.
A second problem is that not everyone has identical views of "good" and "evil." For some, "good" equates to freedom, including freedom for private property owners to use their property as they see fit, so long as they don't harm other people. From this point of view, endangered species advocates are "evil" if they want to regulate private property use.
Some believe that this is a backwards view, held only by people whose ethics haven't "evolved" to the point where they include wildlife in their definitions of life that shouldn't be harmed. At one time, people only behaved ethically towards their own families or tribes. Later, they expanded their ethical views to include all men within their own race. Eventually, all races and genders were included. The natural next step, then, is to include wildlife.
Yet there is little evidence that human ethics actually "progress" or that they will eventually embrace wildlife. Instead, ethics spread through a process of natural selection in response to changes in wealth and technology. As Stephen Jay Gould says with respect to another form of natural selection, "Natural selection is, first of all, a theory about adaptation to changing local environments, not a statement about `improvement' or `progress' in any global sense." Changes in technology and human institutions, not internal ethics, led to a broadening of ethical views from tribe to race to all humanity.
If ethics progressed rather than evolved, then defenders of endangered species and opponents of abortion would be more or less the same people. After all, the arguments on both issues are essentially the same: freedom of choice vs. reverence for other life. But, in fact, endangered species advocates seem more likely to be pro-choice on abortion while antiabortionists seem more likely to favor property rights over wildlife.
If these questions are to be decided by majority rules, rather than a consensus over ethics, then the majority must be willing to compel the minority to act contrary to the minority's own ethical standards. Should a raped woman be forced to have a baby? Should a farmer or forest land owner be forced to pay most of the costs of protecting a species that is suddenly found on his or her property? Most ethicists would consider such compulsion unethical.
Even if the majority is willing to use compulsive force, society may not have or be willing to use the resources needed to gain full compliance. Prohibition showed that the social costs of enforcement of alcohol laws can be far greater than the benefits. The same is almost certainly true for the current war on drugs.
Different Drummer rejects the ethical view not because it is wrong but because it does not work. It may be ethical to save endangered species. But it is neither ethical nor feasible to force people to save species against their will--or rather, against powerful incentives to destroy species habitat. In fact, attempts at compulsion often lead to more habitat destruction.
Compare, for example, Germany in 1930 versus Germany in 1960. The same country; the same people (more or less); totally different institutional structures--leading to totally different outcomes.
Or compare bison in the nineteenth century versus cattle. The bison were an open-access resource, free for the taking. Anyone who left a few to insure sustainable herds merely saw those few shot by someone else. So no one had an incentive to manage bison sustainably. Cattle are a closed-access resource, and could be legally consumed only by their owners. The owners therefore had an incentive to maintain their herds. The result: North America has plenty of cattle but few bison outside of parks or other reservations.
Zimbabwe and Zambia are both home to the African elephant, but the two take very different approaches to elephant conservation. Zimbabwe treats elephants as the property of the villages near which they roam. Villages sell hunting rights to the elephants and share in the hunting fees as well as the meat.
In contrast, elephant hunting in Zambia is illegal. With a less well developed system of property rights, Zambian villages consider elephants a cost since elephants may trample their gardens and eat their crops. Villagers do get a personal gain by guiding poachers--if they are willing to take the risk of getting caught. Elephant conservationists in Zambia have a simple policy: They shoot poachers on sight and leave their bodies for the wild animals.
Status of elephant herds in Zimbabwe: large and growing. Status of elephant herds in Zambia: tiny and shrinking. People in Zimbabwe are no more ethical than those in Zambia, but the different institutions they face lead to different outcomes.
Different Drummer supports the institutional view for two important reasons. First, it works: Once the proper institutional structures and incentives are in place, resources are sustainably produced in abundance. Second, this view holds out the hope of resolving environmental issues without polarization because it encourages us to view people as partners rather than enemies.
The U.S. policy significantly differed from its British precedent. "Throughout much of British history," says bird watcher and property rights advocate R. J. Smith, "the right to harvest wildlife belonged to owners of the land." The U.S. changed this policy on the grounds that it was "undemocratic": Wildlife, Americans believed, should be available for anyone even if they could not afford to own their own land.
The result of the U.S. policy, says wildlife legal expert Thomas Lund, was that "American wildlife populations fell as if afflicted by a plague." "The affliction upon wildlife must be attributed" not to habitat decline, continues Lund, but to "those democratic policies that were injected into wildlife law."
The tension between democratic or egalitarian principles and a property rights system that would encourage sustainable wildlife management pervades much of American wildlife history. In Britain, the red grouse has thrived because landowners sold hunting rights and thus had an incentive to enhance grouse habitat and maintain grouse numbers. In the U.S., the prairie chicken, which could have benefited from a similar system, was driven nearly to extinction by hunters.
Early American sport hunters blamed the decline of prairie chicken and other species on "market hunters," meaning commercial hunters. As a result, commercial hunting is almost completely banned in nearly every state. But hunting for commercial markets is common in Britain; the real problem is the lack of incentives for American landowners to protect habitat.
The clash between the British and American systems continued as North America was settled--to the detriment of wildlife when the Americans won. The story of the near extinction of beaver due to nineteenth century fur trappers is well known. What is not so well known is that many trappers, including the Montagnais Indians of Quebec and British trappers throughout western North America, managed beaver on a sustainable basis. This worked only so long as the trappers could defend their exclusive rights to trap in certain watersheds.
Hudson Bay Company trappers managed beaver for decades in the territories that became western Canada and the northwestern U.S. When American trappers insisted on trapping in the same areas, however, Hudson Bay trappers adopted a policy of "trapping out" the beaver so as to drive the Americans away. After the Americans took over the Oregon territory that had been occupied by Hudson Bay trappers, only a decline in the market for beaver furs saved the species from local if not total extinction.
In the late nineteenth and early twentieth centuries, sport hunters and anglers led by Teddy Roosevelt convinced states to ban market hunting and manage game sustainably for recreational hunting. Efforts to ban commercial fishing were unsuccessful, but sport anglers were able to legally curtail many of the most efficient fishing tools, such as fishwheels and certain types of nets.
As the twentieth century progressed, state wildlife agencies found it lucrative to promote game fish and wildlife. This sometimes meant destroying species thought harmful to game, including wolves and "trash fish" such as bull trout. At other times it meant introducing exotic species that were in demand by sports hunters and anglers, such as mountain goats in Washington's Olympics and brook trout in many western streams.
While the states successfully managed and restored many game species, they often refused to take the full responsibility for those species that "ownership" would imply. The traditional rule of capture held that no one owned the wildlife. The states did not want to change that because if they owned the wildlife then they would be responsible whenever the wildlife damaged someones crop or other property.
If you shoot a deer out of season, the state can prosecute you. Does this mean that the state owns the deer? No, because if the deer trespasses on your property and eats your garden, the state is not liable for the damage. Thus, the states have the rights but not the responsibility (though, to their credit, some states do have compensation programs).
If the ownership of wildlife is unclear, the ownership of habitat is even more murky. If my sheep cross into your pasture and eat your grass, you are entitled to compensation. If I pay you to pasture my sheep for several years in a row, and then you decide to pave the pasture, I am not entitled to any compensation just because I can no longer use your pasture.
Yet rights are different if it is not sheep that are eating your crops but some form of wildlife. For some kinds of wildlife, such as coyotes, the government will actually help you kill it or drive it away. But for other kinds, such as deer or elk, you can only do something about it with the government's permission. For still other kinds, such as many insects, you are on your own.
The rules for fish habitat are even murkier. Legally, many streams are owned by the states. But water is also governed by the rule of capture, meaning I can take it out if I have a water right--even if none is left for the fish. I may leave some in, but I can also pollute it with practices that erode soil.
States also often preempt the incentives that would encourage private landowners to promote game habitat. Most states discourage private landowners from charging user fees for hunting, and some ban such fees entirely. Even more states forbid landowners from charging for fishing in a stream on their property.
In 1973, Oregon passed a land use planning law that, among other things, protected wetlands. After an Oregon rancher named Dayton Hyde turned, at great personal expense, one of his pastures into an artificial wetland for waterfowl, Oregon officials told him that, under the new law, neither he nor anyone he sold the property to would never be allowed to use that pasture for anything else. Hyde loves wildlife and wants to encourage other ranchers to improve wildlife habitat--but few will listen if it means they lose the rights to use their property for something else.
So while federal subsidies to agriculture, water power, timber, mining, and other activities provide plenty of incentives to destroy wildlife habitat, state wildlife management programs offered few to no incentives to protect that habitat. Yes, biodiversity is a public good, but many species--especially game fish and wildlife--could be treated as private goods except that the government stood in the way.
So before the Endangered Species Act was passed, private landowners had few incentives to protect habitat. Yet, biodiversity is a public good, but the federal government doesn't help when it subsidizes so many activities that are harmful to wildlife. State governments don't help when they preempt potential markets for hunting and fishing on private land. Nor do other states help when they refuse to compensate landowners for crop damage by game wildlife.
Unfortunately, the Endangered Species Act didn't fix any of these problems. Instead, as described elsewhere in this issue, it added a new misincentive. The act prohibits you from "taking" a member of any listed species, and the Fish & Wildlife Service interprets this to include taking habitat away. The Supreme Court agreed in the Sweethome decision over the spotted owl. This means that if a landowner like Hyde manages their land in a way that happens to be good for a listed species, the federal government can prevent them from ever managing the land in any other way.
But what if the law isn't working? What if, no matter how good the intentions and how strong the language appears to be, species aren't being saved? Then endangered species supporters must step back and join with their critics to figure out how to fix the law.
Unfortunately, it is difficult to measure whether the law is succeeding or failing. One simple way might be to compare the number of species that have gone extinct since the law was passed against the number that have been recovered.
Since 1973, eight species in the U.S. proper have gone extinct, including one mammal, three birds, and four fish. Three more Puerto Rican species have gone extinct, including one bird and two amphibians. Another six species that had been listed were determined to have gone extinct before 1973.
During the same time period, fifteen species were removed from the endangered species list and declared "recovered," while ten others were reclassified from "endangered" to "threatened" status. The Fish & Wildlife Service is quick to take credit for many of these delistings, but few were due to any action taken as a result of the Endangered Species Act.
For example, the agency recently upgraded the bald eagle from "endangered" to "threatened." At the time, Fish & Wildlife Service director Mollie Beatty was quoted as saying, "Without the act in place, we might have lost our national symbol." In fact, a ban on DDT that the Environmental Protection Agency put into place before the Endangered Species Act was passed had more to do with eagle recovery.
On the other hand, what would have happened if the law had been passed with incentives for recovery, rather than punitive measures for harming a species? Conceivably, some of the extinct species might still be with us and the black-footed ferret might have survived without a captive breeding program. But there is no way to know for sure.
Yet there are three clear areas in which the act has failed.
Neither the act nor any amendments to date changed the preexisting incentives to destroy habitat. At best, the act puts people in a dilemma: Follow their incentives or follow the law. At worst, the act creates new incentives to destroy habitat.
The Fish & Wildlife Service decided that this definition embraced "taking" the habitat from a species of wildlife, which allowed it to regulate private landowners who happened to own the habitat of listed species. In the "Sweet Home" decision, the Supreme Court agreed.
But this brings up a different kind of taking: the taking of private property for public purposes. The fifth amendment to the Constitution states that ". . . nor shall private property be taken for public use, without just compensation."
The Supreme Court has not yet addressed when landowners are entitled to compensation if the Fish & Wildlife Service restricts their use of the land because it has an endangered species on it. But in a 1978 case, when the Penn Central Transportation Company wanted to build a skyscraper over New York City's Grand Central Station, historic preservation advocates succeeded in having the station declared a historic site, prohibiting any such alteration to the building.
When Penn Central sued for compensation, the Supreme Court ruled that it was not entitled to compensation because it could still earn income from using the site for other purposes. In this and subsequent cases, the court seems to say that you are entitled to compensation only when the government takes away the full value of your property.
Legal scholar Richard Epstein rejects this interpretation. Suppose, he says, you own the air rights (the right to build a skyscraper) over Grand Central Station, while someone else owns the station. If a historic preservation law forbids you to build the skyscraper, you lose the full value of your property and are entitled to compensation. Yet if you happened to sell your rights to the owner of the station the day before the law was passed, the new owner would not be entitled to compensation.
Epstein rejects this contradiction and argues that property owners are entitled to compensation even if only part of the economic value of their property is taken. "To adopt any other position is to demand a theory of property rights that tells how many things are subject to private ownership," says Epstein, "which in turn inspires a pointless shell game each time governmental force is directed against the private owner."
At least a few federal judges agree with Epstein. In particular, the Federal Circuit Court has ruled in a wetlands case that a partial taking entitles a landowner to compensation. The Supreme Court has not yet ruled on any similar case.
A Supreme Court ruling is important, but even more important is what works. The takings provision wasn't arbitrarily added to the Constitution, any more than freedom of speech or freedom of the press were arbitrary. These provisions were included because their authors believed that a free society and a society in which private property was safe from confiscation worked better than a society in which the rules changed unpredictably.
Suppose you own a house and it needs new paint. You know that painting it will take time and money, but you also know that if you ever sell the house it will be worth more if it has been properly maintained. So you probably decide to paint it.
Now suppose you own a house that needs paint, but the government is allowed to confiscate your property without compensation for unpredictable reasons; if it wants to build a highway, say, or it needs low-income housing, or it needs office space for bureaucrats. Then your decision to paint and maintain the house will be influenced by whether you think you will still have the house to sell when you no longer want it. When you do sell it, the sale price will be influenced by the fact that the buyer could lose the house at any time.
In such a situation, people will be less likely to invest in maintenance or capital improvements. Wealth and employment in a society run by these rules will decline relative to a society with more secure property rights, and with that decline will go an interest in protecting the environment. So ownership rights in wildlife and habitat must be made clear before protections for endangered species can adequately function.
We could decide that both wildlife and habitat belongs to the government. Since all land is habitat for some wildlife, and private landowners in the past have freely altered the land, and therefore the habitat, such a decision would seem like a taking. If it were a one-time only action, then it would make landowners mad but would not necessarily reduce social stability.
Since the critical habitat has not yet been defined for most species, however, and many more species are yet to be listed, such an action could not be a one-time only event. Every time the critical habitat is defined for some new species, thousands of landowners might suddenly lose property rights. This is the current situation, and the instability it creates is the major reason for all of the controversy over endangered species.
Alternatively, we would reduce the effect on any single property owner by deciding that both wildlife and all the habitat it ever used belongs to the government. This means that people who have already altered land that was once habitat for an endangered species would be assessed some fee or tax to help pay for habitat restoration or to compensate people who own land that is still viable habitat.
This could reduce the cost to some rural landowners, but spread the costs--and the unpredictability--to many other owners. Some owners of land that had been developed years ago could suddenly be assessed millions of dollars if the land happened to once be habitat for several endangered species. The essential problem of unpredictability is not fixed.
The only way to resolve this problem is to assume that the landowners own the habitat. Then, just as a rancher who wants to pasture sheep on another farmer's land must pay the farmer to do so, so the owner of the wildlife must pay landowners for habitat use if they want the habitat to remain available.
The main objection to this policy is a practical one: It would be too expensive to pay private landowners for all the habitat needed by endangered species. But shifting the burden of protecting habitat to a few landowners doesn't reduce the cost, it just makes a few people pay for something that benefits everyone. If society as a whole benefits from endangered species protection, then society as a whole, not just a few unlucky landowners, should pay the costs. This is true not just because it is fair, but because it will work better than a system that threatens to take people's land from them without compensation.
The cost of compensation need not be astronomical. Many landowners are glad to help protect wildlife, they just don't want to be told that they have to do it. Under current law, anyone who does something good for wildlife risks losing their property without compensation, so it is simply safer to do nothing or to destroy existing habitat while you have a chance.
The important question should not be, "Should we pay compensation for habitat preservation." Instead, we should ask, "Where can we get funding for compensation?"
The command approach is often taken because people confuse moral problems with institutional ones. "Should we pay people not to pollute?" But even moral problems are better resolved through incentives than command--and pollution incentives need not require paying people not to pollute. Command works better only when no carrots can be found, and then it doesn't work very well unless there is almost universal agreement about the moral issues behind the law.
A second advantage often cited for the command approach is that it is more certain. What if incentives aren't sufficient to save all species? But this advantage for command is illusory. As governments have found time and again, just because they order people to do something doesn't mean that people will.
Command often leads to unintended consequences as people attempt to evade the law or twist it to their own advantage. Incentives are more predictable because, if the system is set up correctly, people will be rewarded only if they also produce the desired outcome.
Accepting that species declines are an institutional rather than an ethical problem, it is clear that remedies should focus on incentives rather than command. The Thoreau Institute often recommends changing from command structures such as government regulation, subsidies, and bureaucracy to incentive structures such as markets, user fees, and property rights.
But how can these tools work when biodiversity is a public good? The answer is a step-by-step formula that finds the best possible solution for each species or habitat type:
One solution is to give the habitat owners incentives by encouraging them to charge user fees for hunting or fishing rights. As the owner of much of the habitat, the federal government should take the lead and impose such fees--both to demonstrate the value of fees as well as to eliminate below-market competition.
Another solution is to bestow ownership rights on the animals themselves to hunters, fishers, property owners, or some other entity. As noted, British law grants landowners hunting rights. This has worked successfully even for migratory animals. The English gave landowners rights to any geese that lived part of the year on their land; Icelanders treat eider, famous for their eiderdown, the same way.
This also works for migrating fish. Canada, Scotland, England, and other countries have historically granted exclusive fishing rights to individuals or groups of people. In all cases, the owners have an incentive to manage sustainably rather than to overhunt or overfish.
Ownership would not have to go to a landowner or other private individuals. The government could create, say, a Northwest Salmon Trust that owned all of the salmon in the Columbia and other Northwest rivers. The trust could collect revenue from anyone harvesting the salmon and use the revenue to purchase water rights, litigate against polluters, and otherwise protect salmon habitat.
Other proxies for wildlife can be found. One is recreation. Backpacking and other wilderness and dispersed recreation tends to be among the most highly valued forms of outdoor recreation. Dispersed recreationists prefer natural, fairly unfragmented landscapes--the same as many declining species of wildlife. User fees for dispersed recreation, now practically unknown, would create incentives to protect habitat for many species.
While captive breeding is not the preferred solution for the long run, it may be the best short-run solution for many species whose numbers are very low. In the U.S., only government entities are allowed to hold endangered species in captivity. But historically, many species have been saved from extinction through captive breeding by private individuals.
Wild populations of the Hawaiian goose, or nene, had fallen to about 20 to 30 birds by 1949. But aviculturists had bred captive populations both in the U.S. and in Europe. In the 1960s, these were reintroduced into the wild and within a decade as many as 600 thrived in their native habitat. Many of the rarest species of pheasants and members of the parrot family have also survived through captive breeding.
In most cases, the people who own such wildlife do so for pleasure, not for any expected profit. Just as people have saved and bred hundreds of varieties of domestic dogs, they can get interested in saving and breeding all sorts of other animals.
Markets promote diversity because, unlike governments, they don't require majority support for any given choice. Most people don't like anchovies, yet every supermarket in your neighborhood carries at least one and probably three styles of anchovies.
The market's diversity is a particularly powerful attribute for protecting rare species. Endangered species advocates can barely muster support for such charismatic animals as the wolf or salmon. How can they maintain majority support for seemingly trivial and not-very-appealing species such as the seven salamanders, twenty-two snails, three quillworts, and two lichens on the list? Private ownership and markets may prove the only way to save such species.
It may seem foolish to think that markets can protect endangered species. Who will buy a spider or a skink? Yet think of the creativity environmental groups have brought to the political process over the last three decades, resulting in a virtual redefinition of political activism. Applying this creativity to the private sector, which has the advantage of working even when supported by only a small number of people, might save just about any species.
Yet there are some government programs that work fairly well: I would include, among others, state wildlife programs, state highway programs, and the Federal Reserve Banks. By "fairly well" I mean that they accomplish their goals efficiently and equitably. If they have critics, they generally charge that these programs produce too much of what they are supposed to do: too many deer, too many highways, too much inflation control.
If our goal is to protect and enhance biodiversity, then it would be a good idea to model our program after such successful agencies. The critical characteristics of these agencies are: