Elizabeth Brubaker
National Post
September 13, 1999

David Anderson, the federal Environment Minister, recently proposed a law to Cabinet to protect endangered species. Although the goal is laudable, the proposal is deeply flawed. It would establish incentives to destroy, rather than to protect, our wildlife.

The law — expected to be called the Species at Risk Act — would forbid harming endangered or threatened species and destroying their habitat, whether on public or private lands. Violators would be subject to criminal sanctions, including fines and prison sentences.

Canada has lost at least 27 species or subspecies of wild flora and fauna in the past two centuries. The Committee on the Status of Endangered Wildlife in Canada advises that another 86 species face imminent extirpation or extinction, 75 are threatened and 151 are vulnerable.

To protect these animals and plants, their habitat must also be protected. Earlier this year, 631 scientists warned in a letter to the prime minister that 80% of the listed species are at risk because their habitats are threatened.

But the proposed law would make land owners wary of maintaining habitat for endangered species, because Mr. Anderson opposes compensating them for the lost use of their lands. Individual land owners would bear the full costs of preserving habitat, even though their actions would benefit all of society.

Placing such a burden on a few to benefit the many would clearly be unfair. The UN Convention on Biological Diversity, signed and ratified by Canada, stresses the principle of equitable sharing of costs. Representatives of normally divergent environmental and resource industry groups such as the Canadian Pulp and Paper Association, the Mining Association of Canada, the Sierra Club and the Canadian Nature Federation, co-operating in a Species at Risk Working Group, called for legislation that will not adversely affect individuals, businesses, and communities: “The cost of species conservation should be shared by all Canadians and not borne only by a small group of land owners, resource users, workers, and communities … They should not be expected to carry alone the costs of a collective value.”

The proposed law would also be ineffective. Land owners would stop participating in voluntary habitat protection schemes if attracting endangered species to their land exposed them to criminal prosecution. The Ontario Property and Environmental Rights Alliance warns: “Landowners who participate in stewardship programs are like high wire artists who perform without a net.”

Many land owners would likely do far worse than pull out of stewardship schemes. Those who discovered a swift fox or a northern bobwhite on their land would see it as threatening their livelihood; they would quietly kill the animal and destroy any habitat that might later attract the species.

Nowhere are the perverse incentives of punitive endangered species legislation better illustrated than in the U.S., whose 25-year-old Endangered Species Act (ESA) turned animals once considered assets into liabilities. Land owners who previously loved rare wildlife now fear it.

And with good reason. The discovery of an endangered species has time and again precluded development, farming or logging, causing immediate financial losses and long-term reductions in property values. Too often, landowners protect themselves in the only way they can: Upon encountering endangered species, they “shoot, shovel and shut up.”

The ESA’s perverse effects are increasingly recognized in government and environmental circles alike. Sam Hamilton, formerly a top official with the Fish and Wildlife Service, notes, “If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears.” A leading environmental group, the Environmental Defense Fund, reports that landowners “are afraid that if they take actions that attract new endangered species to their land or increase the populations of endangered species that are already there, their ‘reward’ for doing so will be more regulatory restrictions on the use of their property.” EDF adds: “[T]his fear has prompted some landowners to destroy unoccupied habitats of endangered species before the animals could find it.”

North Carolina’s Ben Cone is one such landowner. Mr. Cone, a wildlife enthusiast, used to cut his 8,000 acres of pine forest sparingly, clearing a 30-acre block every seven years. His environmentally sensitive management created habitat for 29 endangered red-cockaded woodpeckers. His reward? The government put more than 1,100 acres off-limits to any logging, decreasing the value of his land by more than $1.4-million (all figures in U.S. dollars).

Since Mr. Cone could not afford to let woodpeckers take over the rest of his property, he started clear-cutting. By the time the government agreed to return the use of his property to him in exchange for a four-year delay in logging and a $45,000 contribution to the creation of woodpecker habitat on government land, he had cleared 700 acres. While the agreement relieves pressure on the remaining forest, Mr. Cone still bristles at it: “I bought my own timber back for $45,000 and four years!”

Mr. Cone’s response to the ESA is not unusual. As early as 1994, Michael Bean, chairman of EDF’s wildlife program, maintained that land owners deliberately harvest their pine trees before they are old enough to attract woodpeckers, even though such premature harvesting reduces the economic benefits of logging. Their actions are “not the result of malice toward the red-cockaded woodpecker, not the result of malice toward the environment. Rather, they’re fairly rational decisions motivated by a desire to avoid potentially significant economic constraints.”

In the American Northwest, those same rational decisions imperil the northern spotted owl. After the owl’s designation in 1990 as a threatened species, loggers scrambled to harvest trees near owls’ nests. In 1997, the Fish and Wildlife Service sounded the alarm: “the small landowners of the Northwest have resorted to ‘panic cutting’ over their fear of federal restrictions to protect owls. It is this category of land owner, in particular, who needs to be provided sufficient assurances of relief so they revert back to their past practices of low-impact forestry.”

The northern spotted owl also created havoc on public lands, halting logging and closing more than 260 mills. In 1994, a plan governing 24 million acres reduced harvests to less than 20% of 1980s levels. The resulting 60,000 direct and indirect job losses meant more than $1-billion in lost annual wages. Little wonder that “Save a logger, eat an owl” became a local slogan. The troubles continue. Last month, commitments made under the 1994 plan led the U.S. Forest Service to halt 34 timber sales covering 220 million board feet of timber.

Tragically, the ESA has failed to protect species. Of the listed species found only on private lands, a mere 3% are improving. Nationwide, despite the enormous sums invested in administering the ESA — federal and state agencies spent $1.2-billion between 1989 and 1993 alone — only a handful of species have recovered sufficiently to be removed from the endangered list. Few, if any, of these victories can be attributed to the act.

Not surprisingly, many condemn the ESA. Larry McKinney, director of resource protection for the Texas Parks and Wildlife Department, is “convinced that more habitat for the black-capped vireo, and especially the gold-cheeked warbler, has been lost in those areas of Texas since the listing of these birds than would have been lost without the ESA at all.” He warns, “If the ESA does not begin to provide positive incentives to private land owners, then the act will continue to be ineffective in achieving its goals on private lands, and in fact, may have the opposite effect.”

Elizabeth Brubaker is executive director of Environment Probe.