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Does Burning Ivory Save Elephants?

by Michael ‘t Sas-Rolfes

This week marks the 62nd meeting of the Standing Committee of the Convention on International Trade in Endangered Species (CITES), taking place in Geneva, Switzerland. To coincide with this meeting, the World Wildlife Fund has released a “Wildlife Crime Scorecard” report which lists 23 countries in Asia and Africa that it claims could all do more to enforce trade bans intended to protect tigers, rhinos, and elephants.

But what about WWF’s scorecard? Unlike the governments it assesses, WWF has specifically purported to protect endangered species since its inception in 1961. It has also mostly endorsed the CITES trade ban approach to saving tigers, rhinos, and elephants for more than the last two decades, but the results of this have been unimpressive. Tiger numbers have plummeted, as have rhino numbers in all but a handful of former range states; elephants have fared slightly better since the ivory ban, but poaching is on the rise again. So while WWF can claim some individual successes with certain localized conservation projects, its broader policies on wildlife trade deserve closer scrutiny to see if they make sense.

For example, last month WWF commended the government of Gabon for burning a stockpile of almost 5 tons of confiscated ivory, estimated to represent the equivalent death of 850 elephants. Presumably the architects of this event think they can repeat the performance of the Kenyan government, which famously burned a pile of ivory (and rhino horn) back in 1989.

Kenya’s dramatic gesture had three effects:  First, as a media stunt it caught the attention of many people and helped to stigmatize the use of ivory products in the West. Second, this in turn appeared to reduce consumer demand (and therefore prices and the incentive to poach elephants). And third, Kenya was able to leverage this event as a means to raise significant donor funding.  (The funding benefits did not endure and other African elephant range states did not benefit in this way; instead many had to bear the cost of forgone ivory sales harvested from sustainably-managed populations.)

That was then, this is now. Ivory demand in East Asian markets has a deeper cultural imprint and was far less impacted by any stigma effect from the 1989 ban. With the rising affluence of East Asian consumers, black market prices and elephant poaching levels are increasing significantly.

Economists may disagree about many things, but one thing we do agree on is that if you reduce the supply of a product without a corresponding reduction in demand, prices will rise. In a 1990 peer-reviewed journal article*, economist Ted Bergstrom explains clearly why: If the goal is to protect threatened species, it does not make sense to destroy confiscated stockpiles, but rather to sell them back into the market to satisfy demand and restrain prices. If trade is already banned and consumers are still buying ivory, there is no reason to believe that reducing the supply will change their preferences. So burning ivory stockpiles at this time does not seem like such a great idea. Although intended to send out a message about the acceptability of buying ivory, this gesture may simply send out a different message to the market: that ivory is an increasingly scarce resource worthy of speculative investment.

WWF’s approach of constricting supplies is not restricted to elephants. It adopts similar policies toward tiger and rhino products. The same principles apply here and the black market values for such products only appear to be rising over time, with disastrous consequences for wild populations.

* Ted Bergstrom. “On the Economics of Crime and Confiscation.” Journal of Economic Perspectives 4.3 (1990): 171-178.

Michael ‘t Sas-Rolfes is an environmental economist based in South Africa and a 2012 PERC Lone Mountain Fellow. He is the author of Who Will Save the Wild Tiger? (1998, PERC Policy Series), a contributor to Tigers of the World: The Science, Politics, and Conservation of Panthera tigris (2010, Academic Press), and author of the recent PERC Case Study “Saving African Rhinos: A Market Success Story.” For more, visit his website: rhino-economics.com.

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Trading Sheep for Grass and Fish in Patagonia

The big brown trout I was fishing for yesterday on the Limay River in Patagonia was nowhere to be found but I did manage to come across an old hang out of Butch Cassidy.

Being from Montana, where the Hole-in-the-Wall Gang pulled off their last job—a holdup of a Union Pacific train—before fleeing to South America, I was happy with this historical catch.

Legend has it that Butch became friends with Jarred Jones who ventured down to Argentina from Texas in 1887 to make his fortune. Jones didn’t find gold but he did manage to open a general store at the mouth of the Limay. The old store, which is now a friendly restaurant, still holds the shops books, old photos, and a frontier atmosphere of a century ago.

Jones earned enough money at the store to purchase two big ranches, which he fenced off with barbed wire—the first to be seen around these parts. Today, barbed wire is strung across much of the 98 million hectares of the Patagonian Steppe to enclose vast quantities of sheep.

Unfortunately, a flock of sheep can gobble up great expanses of native grasses, and in southern Argentina, they’re clearing some serious vegetation. In addition to vegetation loss, overgrazing equates to lost habitat for other animals, and damages waterways with runoff and silt from erosion, which affects the fish, which affects tourism.

Paradoxically, sheep—the slayers of grasslands—could become the saviors of the same landscapes and in turn protect fish and other species. It turns out that because the plants of the grasslands co-evolved with herbivores, such as guanacos, a little munching is good (and necessary) for the flora. It is also true that companies that have environmental components to their business plans and seek to create goods from natural products, including merino wool, would like to see grasslands flourish for the long term. And tourists like me who want to fish and recreate in Patagonia would be willing to pay a price premium for this outcome.

Enter The Nature Conservancy, Patagonia, Inc. and Ovis XXI. Armed with scientific knowledge and market tools, this trilogy is working to conserve more than 15 million acres of land in Patagonia by 2016. Ovis XXI works directly with the woolgrowers. These consultants know the industry, and how to raise sheep without destroying grasslands. The Nature Conservancy brings its science-based knowledge and environmental credibility to help build the sustainable grazing standard through planning and subsequent monitoring of conservation outcomes. And Patagonia Inc. brings the market perspective—buying the wool, networking with others in the supply chain, creating the final products, and using its brand strength to help publicize Patagonian wool.

The majority of the land targeted by the Patagonian Grasslands Conservation Project is privately owned, and remains in large and undivided properties of intact native grasslands. Because most landowners face ongoing political and economic challenges that affect their ability to stay in business, an incentive is needed to gain commitment from landowners to manage resources sustainably. In this case, the carrot comes in the form of a payment to ranchers for grazing less sheep and or for using more modern and environmentally friendly grazing practices.

In November 2011, the first shipment of sustainable wool (29 tons) left Patagonia for Asia to be turned into socks for Patagonia, Inc. So far this scheme has worked to place two million acres under sustainable grazing agreements. Time will tell if the environmental protection purchased by conservationists from sheep ranchers will protect grasslands and associated waterways in the future, but signs look promising. Stay tuned…

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Whoo Decides How Much Is Enough?

From the New York Times in September:

Looking around the stand, Laurie Wayburn, co-founder of the Pacific Forest Trust, which manages this 2,200-acre forest plot for the Fred M. van Eck Forest Foundation, sees a variety of things: thick, straight trees that will generate millions of dollars for the foundation; a healthy forest that filters drinking water and stores carbon dioxide; and a maturing, complex habitat for a variety of animals, including the endangered northern spotted owl.

The adage that northern spotted owls compete with forest jobs should be left to rest. There is value in old-growth forests, but to argue that preserving land is the only way to safeguard the owl is myopic. Forests are dynamic and so are species. Interestingly, science is too.

Science is the knowledge and inquiry of the natural world. Science demonstrates what is and what could be under varying conditions. Science does not, however, measure relative values.

Science cannot tell us whether timber jobs or acreage set aside for spotted owls is better. That is value based. Nonetheless, the Endangered Species Act makes it clear that species on the brink take precedence over other land uses.

In the early 1990s it was heartily argued that the northern spotted owl was competing with timber jobs. Indeed, it was determined that the primary threat to the northern spotted owl was decreased old growth as a result of timber harvest. A couple of decades later the forests have changed, the management has changed, the threat to the owl has changed, but policy argues for more of the same: preservation.

What does science tell us about the forest policy to protect the northern spotted owl?

  • Owls like mature, old-growth forests. But they also like managed forests.
  • In 1990 it was presumed that decreased old growth acreage in the Pacific Northwest was the primal threat to the northern spotted owl. In 2011 it was determined that the barred owl, a competing species that displaces the spotted owl, is the greatest threat.
  • Under the 1994 Pacific Northwest Forest Plan, 24 million acres of federal land was designated as northern spotted owl habitat. Seven million of those acres prohibit timber harvest. Harvest in the Pacific Northwest has declined by more than 80 percent as a result. Timber consumption has not similarly declined, so timber is cut elsewhere to meet demand.
  • Forests are dynamic and have changed between 1994 and 2003. About three percent of the habitat set aside for owls was lost to wildfire and insect infestation. Set aside forests are aging and becoming more vulnerable to fire and insect infestation over time. Newly matured national forest acreage suitable for owl habitat increased by about eight percent.

The critical habitat revisions proposed by the US Fish and Wildlife Service in 2011 aims to set aside more land for the owl, increase active management, and remove the barred owl.

Science cannot provide the policy solution to saving the northern spotted owl. It is inherently preference based.

Originally posted at Environmental Trends.

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Bringing market-based solutions underwater

A lot has been written about PERC’s Enviropreneur Institute lately – and for good reason. While many alarmists tout the demise of clean air, protected forests, and endangered animals, enviropreneurs work to find viable market solutions for improving environmental quality. As Co-Director of PEI Reed Watson notes:

What distinguishes enviropreneurs from other environmentalists? One answer is their vision; enviropreneurs see the world in a unique way. They see the prospect for cooperation where others see unsolvable conflict. They see unwritten contracts where others see unwritten regulations. They see new frontiers for free market environmentalism where others see only market failures.

One such enviropreneur, Brett Howell, has taken a dive off Florida’s coast and is bringing market-based solutions underwater. Florida’s coral reefs stretch more than 350 miles and support hundreds of different species of coral and fish.

It turns out, however, that 70 to 80 percent of Florida’s coral habitat has been destroyed over the past 40 years. Staghorn and Elkhorn coral, two species found off Florida’s coast, are even listed under the Endangered Species Act.

In February, Howell and PERC hosted a workshop in Key Largo exploring the question of whether contracts can help save coral reefs.  Howell is working to develop a market for coral reef restoration by identifying who benefits from a coral reef and who is willing to pay for its restoration. Read more about their conclusions and Howell’s next steps here in the latest issue of PERC Reports.

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Trade a Tortoise

Two years ago in PERC Reports Todd Gartner wrote about his efforts at “helping the American Forest Foundation develop a market-based habitat credit trading system in portions of Georgia and Alabama. The incentive-based framework will complement other efforts in the region to keep the eastern population of the gopher tortoise off the Endangered Species list.”

Today, Gartner, in collaboration with Josh Donlan and James Mulligan of Advanced Conservation Strategies, are ready to launch their first pilot transactions.

Here is how the gopher tortoise candidate conservation marketplace is being designed and piloted:

  • An interested and eligible private landowner (the “seller”) receives a negotiated payment to conserve, manage, or restore longleaf pine forests capable of supporting healthy populations of gopher tortoises on his or her property. In so doing, the landowner generates gopher tortoise habitat credits.
  • The entity paying the landowner (the “buyer”) receives the habitat credits in return. The buyer may use the credits to offset the impact on gopher tortoise habitat elsewhere, in order to meet a voluntary net zero biodiversity impact commitment.  Or, the buyer can save the credits for later use to meet offset requirements if the species is listed under the ESA. Other buyers may purchase credits simply to spur gopher tortoise conservation.
  • A gopher tortoise habitat credit is the currency that can be bought and sold. The number of credits on a parcel of land is determined via a science-based and peer-reviewed method to ensure a net conservation benefit for the tortoise when used as offsets for future impacts. The credit price includes funds to manage and monitor the habitat, along with a negotiated profit margin for the seller.
  • The USFWS approves the crediting methodology and maintains agreements with buyers and sellers. The agency may also provide federal-level assurances to both the buyer and seller. This regulatory certainty allows buyers to preemptively buy credits that can be used toward offsetting future impacts if the species were to be listed.

With 87 percent of southern forests in private ownership, protecting species like the gopher tortoise requires an innovative approach. The gopher tortoise conservation marketplace is testing a new strategy, which provides financial incentives to private landowners who manage their woodlands for habitat and candidate species.

If you would like to learn more about market-based approaches for conservation, such as the approach Gartner began formulating as a PERC Enviropreneur Fellow, then apply to PERC’s Enviropreneur Institute by March 5.

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Q&A with Enviropreneur Kelly Sands Siragusa on Conservation Banking

Kelly Sands Siragusa is the Conservation/Mitigation Manager for Corblu Ecology, LLC, a private firm in Atlanta, Georgia, that specializes in ecosystem restoration and mitigation banking. Siragusa came to PERC’s Enviropreneur Institute (PEI) in 2011 to focus on emerging market-based approaches for nutrient reductions and water quality improvements for Total Maximum Daily Load implementation. She soon discovered the lessons from PEI applied evermore to existing Corblu projects. In particular, Siragusa has applied insights from PEI to the development of a conservation banking program in the Etowah River Basin for three federally listed fish species.

Q: What are the endangered species issues in the Etowah River Basin? What are the challenges to implementing protection for these species?

A: The Etowah River Basin has experienced tremendous growth pressure from metro-Atlanta and five of the fastest growing counties in the country. As a result, demands placed on water resources and increased urbanization have led to aquatic habitat loss and diminished habitat quality. The three listed aquatic species targeted by this initiative, the Cherokee darter, Etowah darter, and amber darter, are especially vulnerable to land-use changes. Mitigation for adverse impacts has primarily been provided through on-site actions such as stormwater management to minimize impacts and, in some instances, off-site mitigation handled on a case-by-case basis. Corblu identified the need and opportunity for a conservation banking program to provide additional conservation in the watershed.

Q: Why conservation banking?

A: Federal guidance has recommended the use of conservation banks under the Endangered Species Act as a means to conserve listed species in instances where impacts are unavoidable. A conservation bank is basically privately or publicly owned land managed for its natural resource values. In exchange for protecting the land, the bank operator is allowed to sell habitat credits to developers who need to satisfy legal requirements to offset their environmental impacts. In short, conservation banking shifts the administrative burden of managing projects to private entities specialized in the field. Often these approaches provide superior outcomes and are more cost effective than traditional mitigation approaches.

Q: How will Corblu develop a conservation bank to provide listed species protection in the Etowah River Basin?

A: Corblu has worked with the Southeast Ecological Service Center to develop a framework for conservation banking in the basin and to develop the proposed Deerleap Preserve Conservation Bank―the first of its kind in Georgia and the region. The proposed conservation bank will provide protection and management of 940 acres of pristine occupied stream habitat and associated riparian and upland habitat in the headwaters of the Etowah River. The bank is being developed in accordance with federal guidance and will provide conservation credits for the target species.

Q: Did the lessons from PEI in business planning help you gain a more comprehensive understanding of how to participate in these markets?

A: Attending PEI helped me think critically about factors pertinent to establishing sustainable markets and successful projects. The case studies presented at PEI provided real-life examples of project implementation, creative funding sources, and adaptive management. Lessons on the importance of economic incentives, for example, reinforced the need to assure that credit methodology adequately incentivizes participation in the market while also providing the needed environmental benefits. Most importantly, PEI drove home the importance of balancing conservation and business and looking for win-win scenarios for both people and the environment.

Applications for PERC’s 2012 Enviropreneur Institute are now open. The deadline to apply is March 5th. For more information, watch the video and visit www.enviropreneurs.org.

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Hunting Endangered Species

The scimitar horned oryx, the addax, the dama gazelle – endangered animals one would expect to encounter in Africa. Yet, as some Texas ranches are proving, helping to bring back large numbers of these endangered species can be a profitable pastime. As this 60 Minutes segment shows, by allowing a number of these animals to be hunted for a high price, exotic wildlife ranches have achieved a major feat in wildlife conservation. A billion dollar industry, supporting more than 14,000 jobs, exotic ranches have worked to bolster the populations of approximately 125 different endangered species.


The funds collected from hunting a small percentage of the endangered animals gives ranchers the money they need to continue to run their ranches. Thus, hunting endangered species in Texas has provided economic incentives for ranchers to continue to conserve and protect the species.

Read Terry Anderson and Shawn Regan’s article, “Shoot an Elephant, Save a Community,” to see how assigning economic value to animals in Africa is also working to conserve wildlife.

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A Market to Conserve

Recently, several scientists proposed a market based solution to ensure the future of whales in nature. Tradable whale quotas, these scientists suggest, could reduce existing conflict and enhance cooperation.  Quota shares would be provided to member nations of the International Whaling Commission. Share holders could decide to maintain, use, trade, sell, or permanently retire their allocation. Similar to international fishing quotas (ITQs), the total allowable catch would be based on a scientifically determined sustainable harvest.

The proposal is no panacea but it does provide different incentives than the current leaky moratorium. Shareholders can decide if they value whales in the boat more or less than conservationists value them in the sea. Determining the allowable catch and enforcing catch limits is no easy task. An open market, however, can help improve cooperation and create better transparency than the often illicit trades that currently take place.

Many that are in opposition to whaling resist any commercial take. While a share market allows for that outcome–whale conservationists can purchase all the shares–it is unlikely. One great benefit of the proposal is that it will demonstrate the value of whales both dead and alive. Those opposed to whaling can purchase share quotas to hold or retire. Commercial whalers can purchase quotas for harvest. The policy would free resources for investment in whale management and conservation rather than demagoguery and the black market.

Originally posted at Environmental Trends.

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How Not to Save Wild Tigers

by Michael ‘t Sas-Rolfes

Captive tigers in the U.S. have become the latest target of a misguided campaign aimed at saving their wild brethren. According to the World Wildlife Fund, perhaps 5,000 captive tigers live in the U.S., many of which are privately-owned pets – more than the estimated 3,200 that survive in Asia in the wild. WWF has called for a ban on private ownership of tigers and proposed various other laws at both federal and state levels to control the U.S. captive tiger population. Why? Because WWF fears that body parts from captive U.S. tigers may enter the illegal trade and “stimulate demand” in Asia, leading to further poaching of wild tigers.

WWF will no doubt celebrate the recent passing of a New Jersey Senate bill that establishes new strict in-state permitting requirements for captive tigers “to prevent their illegal trade.” This measure is being held up as a model for the rest of the country to follow. However, some New Jersey residents are skeptical about this bill and wonder whether this is not a misguided allocation of the state’s resources (see comments here). They are right to be skeptical.

First, a 2008 survey by TRAFFIC, the WWF-affiliated trade monitoring network, did not find any evidence whatsoever that U.S. captive tigers were involved in illegal trade in tiger parts. Second, a recent census by the U.S. Feline Conservation Federation documents only 2,884 tigers, most of which are found in licensed zoos and sanctuaries. Third, of those, only 24 are found in New Jersey, spread over 5 zoos. Even if body parts from those tigers did enter the trade (highly unlikely) the effect would be trivial.

Not only is the New Jersey bill of questionable relevance, its basic premise is also flawed. WWF’s assertion that body parts from U.S. captive tigers must be kept away from the market to protect wild tigers is in fact illogical. It assumes that if the supply of a product to the market is increased, the demand will automatically increase by an even larger amount, thereby leading to a price increase. This would make tiger products a retailer’s dream — a unique product that actually rises in price as supply increases.

In reality, if body parts from captive tigers were supplied to the market, their price would most likely drop (in line with basic principles of supply and demand). And lower prices would mean reduced rewards and incentives for poaching and illegal trade. The theoretical argument for trade stimulating demand is phony. What about empirical evidence?  Conservationist Brendan Moyle analyzes data from the commercially-exploited Louisiana alligator population and finds no correlation to support WWF’s claimed relationship.

The argument that the U.S. captive tiger population poses any sort of threat to Asia’s wild tiger population is based on nothing more than dubious conjecture and WWF’s campaign probably amounts to little more than a waste of donors’ and taxpayers’ money.

Michael ‘t Sas-Rolfes is an environmental economist based in South Africa and a 2011 PERC Lone Mountain Fellow. He is the author of Who Will Save the Wild Tiger? (1998, PERC Policy Series), a contributor to Tigers of the World: The Science, Politics, and Conservation of Panthera tigris (2010, Academic Press), and coauthor with Kirsten Conrad of the recent paper “Making Sense of the Tiger Farming Debate.” For more information visit his website: rhino-economics.com.

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Beyond Politics

I never really understood “political economy” until I read Beyond Politics: Markets, Welfare, and the Failure of Bureaucracy some 15 years ago. The simple but powerful preface includes the following by Randy Simmons and William Mitchell:

Politics and economics cannot be separated. Economies do not exist in a vacuum and neither do politics. Political systems shape, sometimes control, and often misdirect economic systems. Likewise, economic interests shape, sometimes control, and often pervert politics.

The combined study of the two fields seems like a no brainer, yet here we are 15 years later with economists and policy analysts focusing on the same old market failures and government solutions. This path is well traveled because, as Simmons says, “no human institution is perfect so it’s easy to find imperfections.” It’s also easy to call for government intervention if you think government is “benevolent” and have no sense of how government actually functions.

The more difficult and less-traveled path involves recognizing the effects of the political system on the “shape, direction, and rules of the economy.” Protecting consumers, the environment, and the poor  are widely shared values, “but advancing these goals politically often yields greater costs than benefits.”

Simmons  uses the Endangered Species Act as an example. Congress passed the law in 1973 and Richard Nixon signed it because it was “such a good thing for the environment.” It prohibits people from “taking” endangered or threatened wildlife. “Take” includes “harming” a listed species.

But what does harming mean? The Fish and Wildlife Service, who manages the Endangered Species Act, interpreted harm to mean habitat modification on private and public lands. Hence, a landowner harvesting timber, a farmer plowing, or a developer clearing land suddenly stands in the same position as a poacher taking aim at a whooping crane. So, if you modify your habitat, you might as well get the shotgun out and shoot what you can, because you’re going to be treated the same.

I still remember Professor Simmons (or Randy as he likes to be called) asking my freshman Poly Sci class, “What would you do if a wolf or a grizzly showed up on your ranch?” There was some giggling in the back—where the ranch kids sat with their well-warn baseball caps. One of them was called on. His answer, “Well, we’d just shoot, shovel, and shut up.” Simmons response: “Shoveling a hole for a grizzly is a pretty big hole, but I guess you do have tractors with front loaders.”

Many of the students, including myself, were appalled. But Simmons went on to explain that environmental regulation is often ideologically driven and has very little to do with actual outcomes—we have more endangered species today than we had when we created the Endangered Species Act.

The Endangered Species Act punishes landowners who conserve the public interest, and no claims about the value of biodiversity or moralizing about the diversity of life will change that basic fact. If we want to conserve species, we need to make it in people’s individual interest to do so. If we don’t we’re going to continue to fool ourselves with regulations.

If you are interested in learning more about politics, bureaucracy, courts, and legislation be sure and read the recently revised and updated version of Beyond Politics. Randy is a well-qualified author; he has served as a mayor, he’s a bureaucrat because he teaches at a state university, he teaches Law and Economics so he’s knowledgeable about the courts, and he is a member of the Board of Directors of the Utah League of Cities and Towns. As Randy says, “I am an example of everything that’s wrong in America!”

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Assessing Endangered Species Science

Last Thursday, at a congressional hearing, Assistant U.S. Fish and Wildlife Service Director Gary Frazer said that the Interior Department’s Office of Science Integrity would conduct an independent evaluation of the work of FWS biologists accused by a federal judge of being dishonest with the court and acting in ’”bad faith.”  As the Los Angeles Times reports, Frazer said the FWS stands behind the work of its scientists but the Department will seek an independent assessment from outside experts nonetheless.

Frazer’s comments were delivered at a House Science Committee Subcommittee on Oversight and Investigations hearing on “The Endangered Species Act: Reviewing the Nexus of Science and Policy” at which I was also a witness. In my testimony, I focused on the broader issue of how science is and should be used in under the ESA, and made three basic points.

First, it is important to ferret out genuine instances of scientific misconduct or science politicization.  At the same time, it is essential to recognize that science merely informs, and does not dictate, policy. Species conservation is not – and cannot be – a wholly scientific exercise. Whether a given species is at risk of extinction may be a scientific question, but what to do about it is not. The likelihood that habitat loss or the introduction of an invasive species will compromise a species chance of survival in the wild is a question that can be answered by science. On the other hand, what conservation measures should be adopted to address such threats, and at what cost, are policy questions. Science can – indeed, must – inform such inquiries, but science alone does not tell us what to do. Insofar as debates over conservation policy are dressed up as scientific disputes — or instances of science abuse — we hamper our ability to assess competing policy options and pursue optimal conservation strategies.

Second, the structure of the ESA both undermines our ability to base conservation decisions on the best possible scientific information and creates substantial incentives to manipulate science so as to influence policy outcomes. The former occurs because the ESA makes the presence of endangered or threatened species a liability to private landowners. As a consequence, private landowners are often reluctant to allow government or other researchers to conduct surveys or engage in other species-related research on their land. This means the ESA makes it more difficult to know which species are most in need of help and where they are.

The ESA creates incentives for interest groups and others to try and manipulate science because certain science-based determinations, such as whether a species is “endangered,” are triggers for non-discretionary regulatory measures. This means that if an interest group wants to influence regulatory outcomes, it is in their interest to try and influence the initial scientific determination. This explains why there is so much controversy and conflict over species listing decisions. The Act itself turns what should be primarily a scientific inquiry — whether the best available science indicates that a species meets a given definition of what it means to be endangered or threatened — into a high stakes proxy battle over regulatory policy. This is not good for science, and further complicates the quest for optimal conservation measures.

For those interested, my full testimony is here. Portions of my testimony are based on my chapter in Rebuilding the Ark. An archived webcast and the written statements of the other witnesses should be available here, as are pictures from the hearing.

Originally posted at The Volokh Conspiracy.

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Something Smells Fishy

Henry Miller points out in “Let Them Drink Dust” that in scientific disputes spawned by the Endangered Species Act the government usually wins.

But not always. In litigation that has been playing out in California for the last four years, regulators have been so incompetent and dishonest in the federal (mis)management of the state’s water supplies that the courts ruled against them. The U.S. District Court has found repeatedly that federal regulators failed to perform the most rudimentary analysis before ordering massive cuts in water that have reduced California’s supplies by more than a third during the last three years. “This is evidence of [Fish and Wildlife Service] intransigence,” the court ruled in the most recent of these cases at the end of August. “The agency’s ‘lack of data’ apologetic is the premise for the agency to do what it
chooses.”

In this instance, FWS was proposing to use 300,000 to 670,000 acre-feet of water to flush a handful of minnows called delta smelt a few miles farther west in the Sacramento-San Joaquin Delta. (The lower amount is enough water to meet all of San Francisco’s drinking water needs for nearly two years.)

Instead of being available to help California’s cities and farms recover from the ruinous combined effects of three years of drought and federal regulation, all of that water would simply have run out into the ocean, unconserved, unrecycled and unavailable for any other use.

Although the court can’t fully prohibit the FWS plan as it is part of a larger case that is currently on appeal, the damage will be reduced. But as the judge observed at the end of his opinion, “The agencies still ‘don’t get it.’ They continue to believe their ‘right to be mistaken’ excuses [the lack of] precise and competent scientific analysis for actions they know will wreak havoc on California’s water supply.”

Dr. Miller is on to something when he asks, “Why hasn’t anyone else in government or academia simply called a halt to this nonsense? The answer may be that careers are at stake — along with so many lucrative research grants and consultancies. Meanwhile, the feds are trying to enforce the Endangered Species Act from inside a hen house in a way that makes foxes of us all.”