Executive Summary

The Endangered Species Act is the nation’s most successful conservation law, preventing 99 percent of the animals and plants under its care from going extinct and putting hundreds more on the road to recovery. Without the protections of the Act, iconic species like the bald eagle and the gray whale would not be here today. Just as when it was enacted 45 years ago, with nearly unanimous bipartisan support in Congress, the Endangered Species Act remains incredibly popular today, with 9 out of 10 Americans stating that they believe the Act should either be strengthened or left unchanged.

Despite its broad support and success, attacks on the Endangered Species Act continue to increase. More than 100 bills were introduced in the 115th Congress that would severely weaken the Act or strip critical protections from individual species. One of the most common lines of attack has been to propose legislation that would turn management of the Act over to the states. Members of the Republican-only “Western Caucus” and members of the Western Governors Association have repeatedly demanded increased state authority over threatened and endangered species.

Following their lead Sen. John Barrasso (R-Wyo.) introduced legislation in September 2018 that would turn over nearly all of the Endangered Species Act’s authority to the states and curtail the ability of federal wildlife agencies to conserve imperiled species. Remarkably, Sen. Barrasso introduced this legislation even though Wyoming is one of three states that do not have any state-level legislation designed to protect and conserve endangered species.

For this report we examined whether states are truly prepared to take on the responsibility of managing and recovering the nation’s endangered species.

To do that we evaluated all 50 states’ legal and regulatory authority to protect imperiled wildlife and plants, comparing state laws to key criteria that have made the Endangered Species Act so successful: (1) listing and protecting critical habitat; (2) safeguards on agency actions through the consultation process; and (3) enforcement and citizen participation. We also evaluated the funding and resources provided by the states to assess the likely impacts on imperiled species if these legislative proposals were enacted.

Our key finding: Not a single state has a law in place that is as protective for imperiled wildlife and plants as the federal Endangered Species Act. More troublingly, only three states currently provide a reasonably high level of funding to ensure the conservation and recovery of these species. As a result, transferring management to states would put hundreds of threatened and endangered species at far greater risk of extinction.

Other key findings:

• Thirty-four states received an overall grade of either a D or an F, including Wyoming, West Virginia and Alabama, the states that have most aggressively sought to weaken the Endangered Species Act.
• Only five states protect habitat for threatened and endangered species to a similar degree to the Act.
• Only seven states require that state agencies consult in advance with the state wildlife agencies to ensure that state activities do not harm threatened and endangered species.
• Twenty-nine states do not have the authority to protect the full spectrum of plants and animals covered by the federal Endangered Species Act.

Recommendations: Rather than transferring the management of endangered species to states, Congress should focus on fully funding federal efforts to save these species and ensure that existing federal laws are robustly enforced to protect threatened and endangered imperiled wildlife.

States should provide a far greater minimum level of funding to ensure there’s a safety net for every threatened and endangered species of animal and plant. They must standardize and strengthen their listing, habitat protection, consultation and enforcement provisions to a level comparable to the federal Endangered Species Act. These reforms would help ensure that the 45-year record of success of the Endangered Species Act continues in perpetuity.

I. State Funding for Endangered Species

Even the most protective state-level endangered species laws cannot be properly implemented without adequate funding. Although states are free to allocate additional funding to wildlife conservation in their overall budgets, nearly all states have chosen to primarily fund their conservation programs through payments and grants from the federal government. As a result virtually every state has drastically underfunded its state-level wildlife conservation programs.

Historically, federal excise taxes on firearms and fishing equipment authorized by the Pittman-Robertson Federal Aid in Wildlife Restoration Act and the Dingell-Johnson Federal Aid in Fish Restoration Act, as well as sales from state fishing licenses and hunting tags, have provided states with funding to manage species within their states. However, these funding mechanisms created a funding bias resulting in states placing a higher priority on managing game species — mammals, fish and birds that are hunted for sport — than on conserving the state’s nongame and imperiled wildlife and plants.

To assess each state’s funding for endangered wildlife and plants — and to put it in context with overall funding for all game and nongame species conservation — we submitted public-records requests to all 50 state’s fish and game departments seeking data on their spending for game, nongame and endangered species programs. We requested as detailed a breakdown of funding sources as was possible, in order to identify how much money the state itself contributed compared to how much funding was derived from federal assistance. We compared this information to reports that most states provide to the U.S. Fish and Wildlife Service each year regarding how much money was spent on each endangered species.

Despite our public-records requests, many states could not provide detailed information, strongly suggesting that most states do not adequately track how they spend money on wildlife conservation. For example, 24 states either do not possess a publicly available budget of game, nongame and imperiled species spending. A dozen states were unable to provide a breakdown of state versus federal funding for wildlife conservation. Seven states — Connecticut, Colorado, Idaho, Missouri, Montana, Nevada and New Hampshire — did not provide either the U.S. Fish and Wildlife Service or the public with sufficient information to include them in our assessment.

Because the quality of spending information varied greatly, we used three different methodologies to assess state spending. (1) For states that provided a breakdown of game and nongame funding but could not identify the source, we calculated the percentage spent on nongame species out of the total natural resources department budget or the wildlife division budget. (2) For states that provided a breakdown of state and federal shares of funding, we calculated the percentage spent by the state on nongame species. (3) For states that could not provide any breakdown of its budget, we analyzed spending based on expenditure reports they submit to the Services each year. Appendix 1 provides additional data on state funding for species conservation.

Our review: No states provide sufficient funding for endangered species conservation. Only California, Oregon and Washington currently provide a reasonably high level of funding for endangered species conservation. In contrast 32 states only allocate a bare minimum to conserve imperiled animals and plants, spending less than 10 percent of their wildlife budget or less than 5 percent of their department budget managing their nongame species. Because most states track their spending in only the most rudimentary fashion, these spending totals likely overestimate the actual amount spent by the states using their own funding. Far greater transparency is needed if state activity on species conservation is to be reliable.

II. Listing Species

The protections of the Endangered Species Act only kick in after an animal or plant is added to the list of threatened and endangered species. Hence, if the states fail to include similar mechanisms to list species at the state level, their ability to protect animals and plants within their borders will be severely curtailed. The groundbreaking approach of the Endangered Species Act for listing species, which has become the gold standard around the world, is centered on three key principles: (1) ensuring that the law can protect the full taxonomic range of species; (2) allowing for early and proactive listing before a species reaches the very brink of extinction; and (3) basing all decisions solely on the best available science. We evaluate each element in turn.

Protecting the Entire Spectrum of Animals and Plants

A healthy ecosystem depends on all species, plant and animal alike. When Congress passed the Endangered Species Act in 1973, it recognized that “plant species…are even more vulnerable to man’s intervention than are animals, since they cannot move to more hospitable circumstances when necessary.”  Humans are entirely dependent on plants as they provide us with food, oxygen, medicine, shelter and many other critical resources for society. The Endangered Species Act currently protects more than 1,661 plants and animals in the United States. Of those, 717 (43 percent) are animals, and 944 (57 percent) are plants. Importantly, the Act not only protects vertebrates such as mammals, birds, fish, reptiles and amphibians, but also invertebrates such as insects and mollusks.

If a federally listed animal or plant is threatened or endangered throughout it range nationwide, then in most cases it will also be imperiled in each of the states where it is found. Despite this most states do not automatically extend the protections of the state-level law when an animal or plant is added to the federal list of threatened and endangered species.

Our review: More than half of the states do not provide the authority to list the full spectrum of species covered by the federal Endangered Species Act, most commonly failing to allow listing of imperiled plant species. Twelve states automatically protect all federally listed species under state law, while nine additional states have the authority to protect all plant and animal species but require a separate state listing process before each species receives coverage under state law.

Using the Best Available Science in Decision-making

The Endangered Species Act has been so successful in large part because Congress required federal wildlife agencies to make decisions about whether a species needs protection “solely on the basis of the best scientific and commercial data available.” Congress added the word solely when it amended the Act in 1982 to emphasize that political, economic and other nonbiological considerations should not be given any weight in what should always be simply a scientific inquiry. This change ensured that animals and plants receive needed protections regardless of what political party is in power.

Our review: Only four states share the same requirement as the Act to explicitly require listing decisions to be made solely on the best available science. Seventeen states require the consideration of the best available science but leave room for additional factors to be included in decisions about whether animals and plants are protected. Fifteen states provide some indication that scientific data may be required in decision-making processes. The remaining 11 states fail to provide any criteria for how state fish and game agencies determine what species are in need of protection.

Protecting Species Early Through Threatened and Candidate Designations

The federal Endangered Species Act protects all animals and plants that are found to be either threatened or endangered. An “endangered” species is one that is in danger of extinction throughout all or a significant portion of its range. A “threatened” species is an animal or plant likely to become endangered within the foreseeable future. Once a species is listed as either threatened or endangered under the Act, it benefits from a number of legal protections designed to put it on the road to recovery. Congress created two categories so that plants and animals could be protected before they reached critically low levels. The Act also allows the Service to list candidate species that warrant protections under the Act but are precluded from being added to the list due to higher-priority listing activities.

Our review: Only 14 states offer similar protections to endangered, threatened and candidate (or “at-risk” species). Twenty-four states protect endangered and threatened species but do not recognize candidate or at-risk species. Nine states — including Texas, Alaska and Montana — only protect a species once it declines to the point of being endangered, the most vulnerable category and generally the costliest to recover.

III. Protecting Habitat of Imperiled Species

The single-largest driver of extinction in the United States and around the world is habitat loss. In passing the Endangered Species Act, Congress affirmed that the primary goal of the Act is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” such that habitat of endangered species would be the focus of conservation efforts. The Act requires the Services to designate critical habitat for protected species and prohibits both private parties and all federal agencies from taking action that would damage or destroy such habitat. Research has shown that animals and plants that have designated critical habitat are more than twice as likely to be moving toward recovery than species without it. We evaluated two criteria relating to habitat: (1) whether the states possessed any legal authority to designate or define critical habitat; and (2) whether the states established substantive prohibitions to protect habitat of endangered animals and plants, whether designated as “critical” or not.

Designating Critical Habitat

Our review: Despite its importance, only four states have the ability to designate critical habitat on both state and private land. In contrast 13 states do not provide any authority to protect habitat for imperiled species. Nine states have some limited authority to protect critical habitat on state land or on private land in limited situations where a nexus exists with the actions of a state agency. Twenty-one states authorize their wildlife agencies to designate wildlife habitat in general but these designations do not result in any meaningful restrictions on activity within wildlife habitat.

Protecting Habitat From Being Destroyed

As the Supreme Court famously noted, “the landowner who drains a pond on his property, killing endangered fish in the process,” would likely violate the federal Endangered Species Act’s prohibition on take. This intuitive proposition is correct, because many endangered species are so sensitive to habitat degradation and destruction that an action that destroys habitat is as lethal as killing them outright. Accordingly, the Services developed a regulation in 1975 that interprets the term “harm” within the prohibition on take to include “significant habitat modification or degradation where it actually kills or injures wildlife.” We reviewed both state laws and regulations to determine if any state had a comparable provision that prohibits habitat destruction. We also assessed whether states had a prohibition on the destruction of habitat as part of any consultation provision that requires that state agencies ensure their own activities do not degrade habitat.

Our review: Only five states — Massachusetts, New York, Vermont, Virginia and Georgia — contain a provision of law or regulation that prohibits the destruction of habitat as a form of take. Only seven states contain a mechanism that requires state agencies to consult with the fish and game division to ensure that their actions do not degrade or destroy critical habitat. Thirty-eight states do not provide any meaningful protections for the habitat of endangered species.

Interagency Consultations to Prevent Harm to Imperiled Species

Often called the heart of the Endangered Species Act, the consultation process requires that all federal agencies consult with the Services to ensure their actions do not cause undue harm to listed plants and animals. This consultation serves two important functions: (1) It ensures that agency actions do not jeopardize the continued existence of any species and that the agency does not damage or destroy the species’ critical habitat; and (2) it requires each federal agency to take reasonable steps to minimize and mitigate the harm their actions cause, even when those activities do not rise to the level of jeopardy. Consultations consider agency actions in light of the current status and recovery needs of each animal and plant in the context of other stressors in the environment. A great example of the power of the consultation provision of the Act is the Northwest Forest Plan, which protected millions of acres of old-growth and streamside forest, providing critical protections to northern spotted owls, multiple salmon species, marbled murrelets and many others.

Our review: Only seven states require that state agencies consult with their wildlife agencies prior to approving projects that could harm imperiled species or their habitat within their state. Five states require their agencies merely to cooperate with the wildlife agency, while the remaining six states only call for some form of interagency communication. The vast majority of states do not require consultations or any form of communication between agencies, resulting in potentially extinction-driving projects going left unchecked.

Prohibited Acts, Enforcement Mechanisms and Citizen Suits

One of the primary reasons the Act has been so successful is the emphasis it places on citizen involvement in enforcing the law — both against the government and private violators — and in helping to identify species and habitats in need of protection. Granting citizens the right to go to court to enforce the Act’s prohibitions helps facilitate compliance with its conservation requirements and ensures the government is held accountable when it falls short. By providing for citizens to sue private entities that are harming endangered species as well, the Act’s mandates are strengthened when the executive branch is unwilling to take action.

Enforcement Mechanisms to Protect Imperiled Species

The Endangered Species Act protects threatened and endangered species and their habitats by prohibiting unauthorized “take” of listed animals, meaning that it is illegal to harass, harm, shoot, injure, kill or capture them. Notably, harming wildlife includes significant habitat degradation or destruction that ultimately results in an imperiled animal’s injury or death. While somewhat more limited, the intentional killing or possessing of listed plant species is also prohibited. International trade of listed species is prohibited in most instances and highly regulated otherwise. For activities that “incidentally” take listed species, the Act requires private parties to develop a “Habitat Conservation Plan,” which requires mitigation and minimization of harm caused by those actions. Penalties including fines and jail time are possible for violations of the take prohibition.

To help facilitate enforcement, the Endangered Species Act also grants citizens the right to go to court to enforce these prohibitions. This has been an important tool to hold federal agencies, state agencies and private parties accountable when they fail to comply with the Act.

Our review: Hawaii is the only state that authorizes “citizen suits” similar to those permitted by the Endangered Species Act and has equally expansive prohibitions in place to address the killing, harming and illegal trade of listed species. While most states prohibit deliberate and intentional take — most often a restriction on poaching — the wider prohibition against harm and habitat degradation is not prohibited. Three states — North Dakota, Arkansas and West Virginia — do not have any take prohibitions in place whatsoever.

The Public Role in Protecting Species

The Endangered Species Act encourages public participation by allowing citizens to submit petitions to the Services to list animals and plants in need of protection under the Act. Scientific research has demonstrated that citizens fill a critical gap, since the Services are chronically underfunded and do not have the resources to identify the species at greatest risk of extinction. Citizen-initiated petitions also help counterbalance political interference by routinely identifying species that face a higher level of threat than those identified by the Services, which face political pressure to ignore controversial species.

In addition to listing petitions, citizens can petition the Services to establish experimental populations for reintroduction efforts, designate critical habitat and seek other agency actions to protect species. Citizens also are allowed to challenge in court actions of the Services that fail to meet the best available science standard and other requirements of the Act.

Our review: Despite the critical role citizens continue to play in protecting imperiled species at the federal level, not a single state provides similar opportunities for public involvement at the state level. Thirteen states authorize citizen petitions, but only to add or remove protections under state law, while 10 states allow only limited opportunities for public engagement or input. Twenty-three states do not allow any citizen participation whatsoever.

IV. Qualifications for Fish and Game Commissioners

The Endangered Species Act requires the U.S. Fish and Wildlife Service to regularly deal with complex scientific issues relating to the conservation of fish, wildlife and plants at the local, national and global scale. Recognizing this Congress took the unusual step of requiring that any person nominated by the president to be the director of the U.S. Fish and Wildlife Service be, “by reason of scientific education and experience, knowledgable in the principles of fisheries and wildlife management.” This requirement ensures that conservation decisions are ultimately being made by someone who understands, and will follow, the best available science and limits the amount of politically-motivated outcomes.

State wildlife agencies are organized differently, and the individual official or group with final decision-making authority varies. Many states have fish and game commissions or boards made up of individuals that are authorized by statute or regulation to make all conservation decisions, whereas 16 states vest authority in the agency director or secretary.

Our review: Only four states have stringent requirements that all commissioners or the agency director or secretary have scientific experience and/or background in wildlife management (or a similar field). Two states require scientific experience or background for the majority of commissioners, while 18 states either require all commissioners have a general knowledge of wildlife or require expertise for less than a majority of commissioners. Seven states only require some commissioners to have a general knowledge of wildlife. Nineteen states have no requirements for who can serve as a commissioner or head of the wildlife agency. Thus, many important conservation decisions are being made by an appointed official whose motives are political.

V. Are States Ready to Manage Threatened and Endangered Species?

To assess each state, we looked at the four criteria that have proven to be essential to the conservation and recovery of endangered species at the federal level: (1) being able to list species; (2) ensuring state agencies consult on their actions to limit harm; (3) protecting habitat from destruction; and (4) adequate state funding.

When Congress passed the Endangered Species Act in 1973, it noted that of the many threats to imperiled wildlife and plants, the most significant threat was “the destruction of critical habitat”. If a state cannot adequately protect habitat from destruction, its ability to ensure the survival — let alone foster the recovery — of endangered species will be severely hamstrung. Accordingly, in assessing the states, we gave additional weight to the criteria for protecting habitat. Here are the overall rankings:

Our review shows that the states that have been the most hostile to the Endangered Species Act in the past five years — including Wyoming, Utah, Idaho, Oklahoma, Montana and Texas — have the weakest protections and are the least prepared to take on a larger role in managing endangered species. Wyoming, West Virginia and Alabama do not even have a state endangered species law, and drastically underfund conservation of imperiled wildlife.

In 2015 nine western states, Wyoming, Utah, Alaska, Arizona, Colorado, Idaho, Montana, South Dakota and Kansas, supported a legal action in the 10th Circuit Court of Appeals that would have eliminated all federal protections for “intrastate species” — species that exist solely within one state — based on a dubious legal argument that had already been rejected by five other federal Circuit Courts. Had this legal effort succeeded, more than 1,100 listed plant and animal species would have lost all federal protection, including more than 500 in Hawaii alone. Given that eight of the states in this legal fight received a D or an F, the consequences for listed species inside those states would have been the most disastrous had their effort been successful. Fortunately, the 10th Circuit rejected the landowners’ argument, making it the sixth appellate court to uphold the Act’s protections for intrastate species.

Likewise, in 2016 eighteen states — Alabama, Arkansas, Alaska, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming — filed a lawsuit in federal court challenging a set of modest improvements to the regulations designed to protect critical habitat. Yet fifteen of these states have no authority or state regulations at all designed to protect habitat at the state level.

Members of the Western Governors’ Association — which includes oil-producing states like Wyoming, Oklahoma, North Dakota and Alaska — continue to be extremely hostile toward the Endangered Species Act. Wyoming governor Matt Mead’s “Species Conservation and Endangered Species Initiative” aggressively advocated for legislation that would have weakened the Act and recommended other policies to give states a dominant role in endangered species management. These three examples illustrate that the most hostile states seeking to weaken the Endangered Species Act would be the least prepared and equipped to assume management responsibilities for imperiled wildlife and plants.

Without substantial new funding and drastic improvements to state-level laws for threatened and endangered species, transferring management to the states would almost certainly result in the extinction of many plants and animals. Until these reforms occur, a far more effective strategy to get wildlife and plants on a path to recovery is to continue building on the 45-year track record of success of the Endangered Species Act.