Does the Endangered Species Act Work?

The Sacramento Mountains checkerspot butterfly is found only in the far southwest corner of New Mexico, near the state borders with Arizona and Mexico and the small community of Cloudcroft. Although it is a local specialty, not many people living in the area have seen or even heard of it. And for good reason: Recent polls by biologists have found only eight orange, black and white butterflies and no signs of eggs.

But even as the species is on the verge of extinction, the federal government has not intervened to save it. In 1999, when the insect population was still over 1,000, the non-profit Center for Biological Diversity filed a petition with the U.S. Fish and Wildlife Service (FWS) to grant the butterfly legal protection under the Endangered Species. Act (ESA). Since then, the agency has received and rejected another petition to list the missing creature and is currently evaluating a third.

ESA is one of the most powerful tools to combat the massive biodiversity crisis gripping the world right now. Yet examples of omissions like the Sacramento Mountain checkerspot are all too common.

[Related: Wildlife populations have decreased 70 percent in only 50 years]

A study published this week in the journal PLO identifies some worrying trends in the way FWS manages ESA. He points out that species are often not listed until their populations have already reached dangerously low numbers and that, on average, the agency takes nine years to issue verdicts on petitions that should be decided within two.

One reason for this bottleneck is administrative. “The number of species listed for protection under the Endangered Species Act has more than tripled since 1985, but funding for the Fish and Wildlife Service hasn’t kept up,” says Erich Eberhard, PhD student in ecology at Columbia University and lead author of the research.

Some of the low-numbered species were brought to that point even before conservationists petitioned for their list. Eberhard points to the Mallard Mariana and Broad-billed, two bird species that received protection relatively quickly in the 1970s and 1980s, but whose populations were less than 100 each at the time of listing. Both are now extinct. The document identifies the small population size at the time of listing (as in the case of birds) and long waiting times for petitions (as in the case of checkerspot butterflies) as two problems hampering the effectiveness of the act.

Noah Greenwald, the director of endangered species at the nonprofit Center for Biological Diversity, saw similar trends detailed in the study in the 20 years he spent working on petitions to put the species on the ESA list. However, he doesn’t just attribute it to the limited capacity of the FWS.

“Some are just bureaucratic malaise,” Greenwald says. “The process of listing species is terribly cumbersome.” The review process, he points out, includes more than 20 agency officials.

The Sacramento Mountain checkerspot butterfly is on its third ESA petition. Julie McIntyre / USFWS

ESA’s language is clear that the decision to designate a species as “endangered” or “threatened” should be based solely on the best available science. That said, Greenwald suggests that a more peer-review process for academic studies, where other industry experts evaluate the evidence in a petition, would be more streamlined and effective than what the FWS currently does.

Political decision making can also make ESA slower and less effective. Since he took office, President Joe Biden has overturned the measures former President Donald Trump has put in place to severely limit the scope of the act. Furthermore, over the past two decades, the number of protected species has fluctuated by party in power, with Trump listing fewer species on average than any other president since ESA was enacted.

[Related: The monarch butterfly is scientifically endangered. So why isn’t it legally protected yet?]

Both Greenwald and Eberhard are quick to say that ESA has been very effective in protecting the species that end up being listed, which currently encompasses around 1,300 species. More than 99% of them survived and 39 former members of the list have fully recovered. But with 9,200 species considered “endangered” or “critically endangered” by biologists in the United States, that success rate reflects only part of the country’s biodiversity needs.

Given ESA’s proven effectiveness in protecting species when invoked, the study suggests providing FWS with more resources to consider petitions and reach verdicts quickly. “The Fish and Wildlife Service now receives less funding per species than in the past,” says Eberhard. “What we need is a more serious investment.”

For some wildlife, such as the Sacramento Mountain Checkerspot butterfly, the time lost between filing a petition and receiving protection is critical – potentially even fatal. The Center for Biological Diversity has submitted a new petition to the FWS to protect insects in 2021 and can only hope that the butterflies will still be around before the agency takes action.

“You would think the Fish and Wildlife Service would like to sin on the side of protecting the species and wouldn’t wait until they were on the brink,” Greenwald says. “But right now they want incontrovertible proof that a species is in serious danger before being put on the list: it’s prudent, but in the wrong direction.”

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