In spite of its documented success in conserving vulnerable species and ecosystems, as well as robust and enduring support among American voters, the federal Endangered Species Act has not been spared from calls to devolve funding and authority from the federal government. As this trend has gained increasing support within the 115th Congress and the Trump administration, Sen. John Barrasso (R-WY), Chairman of the Senate Environment and Public Works Committee, is widely expected to introduce legislation that seeks to erode federal support for species conservation. Under the banner of “modernization” and through the mechanisms of devolution, the bill is anticipated to transfer responsibility for the protection and recovery of imperiled species to the states. But as a new report shows, states are not ready to take on this crucial responsibility.
The report, released August 2 by the Center for Land, Environment, and Natural Resources at the University of California, Irvine School of Law, provides a detailed analysis of state endangered species laws and funding to implement the federal ESA. It compares state endangered species protections against the federal law in terms of existing statutes, the extent of species covered, standards and provisions for listing species, authority for recovering planning, designation of critical habitats, substantive and land-use restrictions, consultation for public action, and habitat modification. Though a few states do include robust protections that mirror or complement the federal ESA, across all of these areas, the report overwhelmingly found that existing state laws lack the capacity to protect and recover endangered species as compared to the federal law.
More dramatically, the report reveals that states’ contributions to implementing the ESA account for only five percent of total ESA spending, and that as federal spending has increased over time, state spending has remained stagnant. The report also notes that 64 percent of states cover fewer species than the federal statute; less than a quarter of states require that government agencies involved in projects that might put species or habitats at risk consult with those involved in managing endangered species; more than three-quarters of states’ ESA laws fail to provide for the designation of critical habitat; and only two states have provisions giving full authority to plan for species recovery.
Given these findings, the report concludes that without significant state law reforms and a massive expansion of funding in most states, devolution of federal authority and responsibility over threatened and endangered species to states is likely to undermine conservation and recovery efforts, lead to a greater number of species becoming imperiled, and result in fewer species recovered. “Modernization” of the ESA, in these terms, seems less a transfer of responsibility for species protection from one sphere of government to another than it is a clear pronouncement that the protection of the most vulnerable species is simply not the responsibility of government.