Too many environmental issues are seen as crime and punishment problems.  The bureaucratic process that implements the Endangered Species Act (ESA) is one of the results. That process produces too few environmental benefits, too many economic losses, and an unnecessary infringement on individual liberties. Far more species go extinct waiting to be listed as endangered or threatened, and after being listed, than are upgraded to a less threatened status or delisted (true success).

The current process is unsuited to the real issue, which is how to efficiently accommodate competing users (people, plants, and animals) of land. That is being increasingly recognized, even by mainstream environmental activists. With the implementation details of each case now in the hands of government employees, the science of species listing and recovery is tainted by politics. Since the ESA’s official goal of preserving our biodiversity enjoys strong public support, we must develop news, more productive ways of pursuing it.

With appropriate property rights, market mechanisms will protect threatened plants and animals much more efficiently than the current bureaucratic process. Private property rights can be strengthened to make listed plants and animals more valuable to individual landowners (50% of endangered and threatened species occur only on private land) as they become more scarce. It will cause landowners (including public landowners) to ‘set aside’ enough land to recover and sustain each listed species. The key details are the definition of habitat, how much is enough, and how much actual and restorable habitat exists; facts that are already required by the existing process.

‘Set aside’ should not mean outright purchase in most cases. Most species can co-exist with human activity. Indeed, they must. There is not enough money or land to provide every threatened species with its own exclusive refuge. The viable terms of that co-existence determine the type of easement that landowners that eliminate habitat must purchase (perhaps subsidized?) from landowners that maintain habitat. The market price of such easement arrangements will depend upon development pressures (demand), the scarcity of existing and potential habitat, and the biological requirements of the species (supply).

In the well-known, expensive Edwards Aquifer-Endangered Species situation of South Central Texas, pumpers could be habitat eliminators during severe droughts. An approach analogous to land easements would be to levy a small pumping fee and use the revenue to maintain aquatic habitat. Depending on cost comparisons and conditions, a number of measures could be funded. They include springflow purchase, springflow augmentation, and artificial habitat maintenance for the inevitable times of severe drought. Past attempts (the 1995 Texas Legislature’s revision of 1993’s SB 1477) to address the problem are very expensive, they limit pumping too much, they do not ensure that the springs the endangered species depend on will not go dry, and therefore do not ultimately fully address the possibility of federal sanctions that supposedly justify the costly measures.

All landowners would be better off under the proposed easement purchase process than under the expensive, open-ended, indeterminate process that exists now. Landowners contemplating land uses that would eliminate some habitat would enjoy lower known costs and no species habitat-related delays. The existing process is fraught with uncertain high costs and long delays, and often ultimate denial of permission. It is especially hard on small landowners, for whom the existing process can easily cost much more than their land is worth.

Under the easement purchase proposal outlined above, land developers would have an incentive to minimize their destruction of habitat, and other landowners would have an incentive to protect and restore habitat, and advertise its existence. Habitat owners would profit from the chance to sell the easements. Habitat owners would be better off under the proposed market approach than if there was no public interest in maintaining a sufficient level of species habitat. Contrast that with the existing incentives. Now most landowners fear (and take steps to prevent) the discovery of habitat of potentially threatened species on their property, because it could cause property values to fall, and land use restrictions could lead to forfeiture. Species also suffer from the existing process because it creates incentives to destroy habitat, and no incentive to maintain it.

In closing, it is important to summarize the role of government in the proposed market approach to species protection. The government would no longer engage in case-by-case ‘consultations’ (the root of the problem). Biological data would be used to define the terms of easements, and how much protected habitat is enough. The government would enforce compliance with the terms of the easements just like it enforces other contracts. If the requirement that habitat eliminators acquire easements constitutes a ‘taking’, public funds could be used to subsidize easement purchases.