The Endangered Species Act: Reviewing the Nexus of Science and Policy

Download PDF Thank you, Mr. Chairman and members of this subcommittee, for the invitation to testify regarding the nexus of science and policy under the Endangered Species Act. My name is Jonathan H. Adler, and I am the Johan Verheij Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law, where I teach several courses in environmental, administrative, and constitutional law.

"Saving endangered species should be more important than saving the Endangered Species Act." --Jonathan AdlerI particularly appreciate the opportunity to testify today about the Endangered Species Act (ESA). I have researched and written on environmental law and policy for over twenty years, and have conducted a significant amount of research on the ESA and species conservation generally. My work on the ESA includes an award-winning article, Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land-Use Controls, 49 BOSTON COLLEGE LAW REVIEW 301 (2008), and a recently published book, Rebuilding the Ark: New Perspectives on Endangered Species Act Reform (AEI Press, 2011). I've drawn upon this work in preparing this testimony.

The ESA is among the nation's most important and powerful environmental laws. It is also a source of great conflict and controversy. There is little question that species conservation is an important and worthwhile endeavor. Regrettably, there are many reasons to question whether the ESA effectively serves that goal. The Act has likely helped prevent some species from going extinct, but the Act endeavors to do more. There is very little evidence the Act helps species recover from the brink of extinction and increasing evidence that the ESA itself creates incentives that undermine sound environmental stewardship and politicize scientific inquiry.

The listing of individual species, the designation of critical habitat and the implementation of conservation measures often prompt fierce legal and political battles. Sound science is often a casualty in these conflicts as the combatants twist and manipulate the available scientific evidence to support predetermined policy preferences. Activists on all sides claim that "sound science" supports their respective positions, and scoff at the "junk science" relied upon by the other side. In actual fact, what often divides the respective camps is not a devotion to science, but sharply divergent policy preferences dressed up in scientific garb. The political debate over the use of science under the ESA tends to obscure the dividing line between science and policy and undermines the development of more effective and equitable conservation strategies.

Jonathan Adler is a National Research Initiative author of Rebuilding the Ark: New Perspectives on Endangered Species Act Reform