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What the ESA Really Costs Americans

by M. David Stirling,
Capital Press, April 25, 2008

The ESA has been exempted from scrutiny of cost-benefit analysis

Cost-benefit analysis is the process by which the benefits derived from a project can be compared with the costs expended to achieve those benefits.

The scrutiny of cost-benefit analysis is regularly used when projects are developed, evaluated for effectiveness and determined whether or not they should be continued.

Governments apply a form of cost-benefit analysis to their programs, and although minimal, we as taxpayers find this somewhat comforting. We want to get our money's worth.

However, Congress exempted one particular federal law from the scrutiny of cost-benefit analysis - the Endangered Species Act of 1973 (ESA). As a result, the ESA stands as a shocking example of how ineffective government can be and, worse, how its enforcement actually costs us immeasurably.

The ESA authorizes the Secretary of the Interior to list a species as endangered or threatened solely on the basis of the "best scientific ... data available." Omitted from this listing criteria is any reference to its economic cost. As such, the secretary has no discretion to balance or even compare a listing's overall benefit to society against its costs.

Although a later amendment required the Secretary of the Interior to undertake an economic impact analysis before designating critical habitat for the species, Congress' loosely worded language enabled federal bureaucrats to side-step performing that economic analysis.

Why does the ESA spurn such a widely used and commonsense tool as cost-benefit analysis in the economically haphazard arena of public policy? The answer is that the zealous eco-activists who crafted the ESA and the hardcore organizations that continue to animate it embrace the notion that every member of every plant and wildlife species in the world has intrinsic value that is priceless, and beyond man's ability to quantify or his right to impair.

While this view is perhaps attractive on a purely emotional, nonscientific level, it is completely impractical and even dysfunction for the federal government's enforcement of a major statutory program. That dysfunctionality has revealed itself in a number of shocking ways over the past 35 years.

Much has been reported about the many lives lost and vast damage caused when Hurricane Katrina slammed into the southeastern Louisiana coast on the morning of August 29, 2005.

The major source of flood waters that devastated New Orleans - killing 1,100 of its residents, and causing billions in damage - in the wake of Katrina came from a huge storm surge from the Gulf of Mexico into Lake Pontchartrain through two passages. Interestingly, these passages were the precise locations of a congressionally-approved renovation project shelved because of shellfish and other aquatic life.

Congress, the Army Corps of Engineers, and many others believed that the barrier-gate project - the target of an environmentalist group - would have protected New Orleans from the storm surge it faced following Katrina.

In a 2005 Los Angeles Times article, the retired chief counsel for the Army Corps' New Orleans District said, "If we had built the barriers, New Orleans would not be flooded." Another example of ESA wrought devastation occurred when 14 firefighters were trapped in a narrow canyon in the Okanogan national Forest near Winthrop, Wash. in July, 2001.

They were part of a crew assigned to do mop-up work on a nearly extinguished fire. The helicopter that was supposed to scoop water from the nearby river and drop it on the dying embers at 10 a.m. didn't arrive until 3 p.m. Over those hours, 100-acres of dying embers became a 2,500-acre inferno. Four of the14 trapped firefighters died when the fire passed over them.

The story of the brave firefighters who never got the help they needed has been recounted by journalists and editorial writers.

The five-hour delay in sending the helicopter was caused because federal officers feared that the helicopter would harm ESA-listed fish in the river. Veteran firefighter Ellresse Daniels put it this way, "If we'd had the water when we asked for it, none of this would have happened."

The U.S. Supreme Court declared in TVA v. Hill (1978) that Congress' intended the ESA to preserve endangered species "whatever the costs." As a result, the listing of species and litigation over species protection has cost many billions of dollars annually, notwithstanding the federal government's deliberate low-balling of those costs in official government reports. At the same time, objective "benefit" analysis shows miniscule biological benefits.

Americans have a responsibility to protect the natural world, but not with a law that does little for plant and wildlife species, while doing great damage to the human species.

Congress needs to update the ESA's intent, purpose and policy statements to balance the economic and social needs of people along with those of species. Without this overhaul, the ESA's legacy will continue to be one of harming people - and not preserving species.

M. David Stirling is vice president of Pacific Legal Foundation, a public interest legal organization that defends private property rights and balanced environmentalism. He is the author of the new book, Green Gone Wild - Elevating Nature Above Human Rights
What the ESA Really Costs Americans
Capital Press, April 25, 2008

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