The Endangered Species Act (ESA) was created to prevent extinction. More than 50 years after its passage, it is increasingly wielded as a blunt instrument to block infrastructure of all kinds, including many projects that would do the environment long-term good: clean energy, transmission lines, and even habitat-restoration projects meant to improve environmental outcomes.
What’s worse, the current state of affairs is not even ideal for the species themselves: we now spend more money litigating over endangered species than it would actually cost to proactively recover them.
Litigation due to environmental regulations is already a major and unnecessarily significant driver of energy infrastructure cost. The National Environmental Policy Act (NEPA) requires minimal evidence and introduces minimal risk for those filing, making it a statute of choice for many strategic litigants and the target of many reform efforts for energy and industrial evangelists. Still, its track record for dooming energy infrastructure projects is dwarfed by the quieter but more lethal threat to infrastructure projects posted by the now-weaponized Endangered Species Act.
An analysis of major energy projects found that while litigation under NEPA and other environmental statutes reliably raises costs and delays timelines, legal challenges under the ESA are far more likely to delay projects indefinitely or outright halt construction entirely. NEPA suits typically target the adequacy of analysis and procedure, allowing agencies to revise documents and proceed, albeit often with costly environmental reviews. Similarly, Clean Water Act (CWA) lawsuits were more likely to end with additional reviews or project alterations, for example, a project rerouted away from waterways.
Suits invoking ESA litigation, in contrast, hinge on rigid prohibitions and a low tolerance for risk, leading to far riskier legal landscapes for those leading energy projects. Faced with higher costs to proceed and lower likelihoods of success, developers are more often forced to walk. About 40% of projects in the last two decades, representing billions in investments, have met their demise thanks to the ESA.
The irony of this dynamic is that the funds spent fighting ESA-based challenges could fund proactive recovery of the species in question dozens of times over. The total cost of U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) recovery plans for these species typically represents between .025% and 2% of the total sunk cost of canceled projects. The species responsible for halting the $8 billion Keystone XL Pipeline could have been recovered for $100 million. The species responsible for $6 billion in overruns for the Mountain Valley Pipeline could have been saved for under $30 million.
At present, we are optimizing our energy investment for the profits of weaponized environmental groups—not the betterment of America’s energy grid or the conservation of its endangered species. Reforming and modernizing the Endangered Species Act is an obvious, overdue way to reconcile our energy goals with the prevention of extinction for our country’s most vulnerable species.
Richard Nixon’s original intent with the Endangered Species Act was never to provide yet another tool for NIMBYs to delay American energy progress under the guise of environmental protection. The original purpose of the ESA has been distorted through endless litigation, shifting interpretations, and procedural abuse, turning species protection into yet another weapon in the name of environmental protection. Reform is necessary to protect our natural heritage and our energy future from instead serving environmental lawyers’ bottom lines.