OPINION:
The far-left environmental lobby has a problem with Rep. Bruce Westerman’s proposed amendments to the Endangered Species Act. The Sierra Club calls them “nothing short of a tragedy.” The Center for Biological Diversity simply calls it the “Extinction Act.”
These slogans are alarming and completely disconnected from what the bill does and from the stubborn reality of a law that is failing in its very mission.
The ESA is one of the most important conservation statutes ever enacted. Its founding purpose was to pull imperiled species back from the brink of extinction and restore them to thriving populations. That is precisely why its failure demands action.
After 50 years and billions of dollars, the ESA has kept species on life support. It has prevented extinction, but at exorbitant cost and with hardly anything to show for actual recovery. A law this important should not be allowed to keep failing.
We do not come to this debate as outside observers. One of us ran the U.S. Fish & Wildlife Service. The other has spent years at the intersection of infrastructure, environmental law and wildlife policy. Together, we have long advocated for exactly the reforms in Mr. Westerman’s bill, particularly the private landowner incentives and litigation guardrails that would redirect the ESA’s enormous legal machinery away from project obstruction and toward actual species recovery.
Here is what these groups never mention: Fewer than 3% of listed species have recovered enough to be delisted. The opposition’s preferred talking point — that the ESA has saved 99% of listed species from extinction — tells you only that most listed species have not yet disappeared.
After half a century, the law’s greatest achievement is that species are still clinging to survival on a list. That is not conservation. That is a waiting room.
ConservAmerica’s analysis of 17 major infrastructure projects from 2005 to 2025 reveals an uncomfortable truth. Of the three major environmental statutes used to challenge these projects, the ESA was by far the most consequential. Forty percent of projects challenged under the ESA were canceled or indefinitely delayed.
This was not because they were driving species to extinction, but because the ESA’s definitions of “jeopardy” and “action area” are elastic enough that claims can be brought against virtually any project that touches the habitat of listed species. The question is rarely whether a pipeline will actually harm a species. It is whether an agency’s biological opinion leaves an opening that can be challenged in court.
This dynamic has fueled a cottage industry of serial litigation. A small set of environmental groups exploits the ESA’s fee-shifting provisions to fund repeated challenges, collecting taxpayer-funded attorney fees with each successful outcome. Litigation, not species recovery, becomes the end.
The economics prove it. The Mountain Valley Pipeline costs have exploded from $3.5 billion to $9.7 billion. The Atlantic Coast Pipeline was abandoned after costs doubled to $8 billion. Total direct losses exceeded $26 billion, none of which protected or restored a single species. Meanwhile, the species cited in these challenges could have been fully recovered for a fraction of those costs.
The ESA Amendments Act seeks to correct exactly that misalignment. It creates a national listing work plan prioritizing the most imperiled species. It establishes conservation benefit agreements, giving private landowners — who manage 80% of habitat for listed species — a reason to welcome species rather than quietly eliminate habitat before listing.
It requires jeopardy findings to be grounded in evidence, not speculative causal chains manufactured to support a lawsuit. It caps taxpayer-funded fee awards for serial litigants and mandates full public disclosure of ESA litigation expenditures.
Not one provision removes substantive protection for a single species.
The opposition’s response is telling. Rather than engaging a single provision of the 44-page bill, these organizations have defaulted to fundraising appeals and apocalyptic slogans, raising money in the name of species that, if truly recovered, would no longer sustain their litigation model.
After 50 years and a 3% recovery rate, the burden of proof rests with those insisting that the status quo is working. It is not, and the species languishing on a list know it.
The landowners afraid to steward their own land know it. After 40 combined years devoted to the cause this law was meant to serve, so do we.
• Brent Fewell is a former senior Environmental Protection Agency official and general counsel of ConservAmerica. Aurelia S. Giacometto served as the 22nd director of the U.S. Fish & Wildlife Service and 14th secretary of Louisiana’s Department of Environmental Quality.
Please read our comment policy before commenting.