By Kristen Walker, American Consumer Institute
Exclusive to The Economic Standard
Too many procedural obstacles impede infrastructure projects and vital land management practices.
Among the many bills sprouting up in Congress promising to fix a broken permitting system, the Endangered Species Act (ESA) Amendments Act of 2025—which aims to simplify and strengthen species conservation—is making its way through the House. ESA modernization is imperative.
Enacted in 1973, the ESA establishes protections for fish, wildlife, and plants that are listed as threatened or endangered. However, over the years the statute has encountered abuseranging from litigation and emergency listings to misclassifications and refusals to delist. Such misuse has stonewalled countless land activities, harming both public and private enterprises.
In a ConservAmerica study released earlier this year, analysis over the last two decades found that ESA-related challenges “routinely doubled or tripled project budgets” and resulted in tens of billions in economic losses. Approximately 40 percent of projects were cancelled or delayed indefinitely; the organization concluded ESA to be the leading cause of project derailment.
Project obstruction is only part of the problem.
One of the biggest concerns the House Committee on Natural Resources expressed when introducing the ESA amendments was that in the ESA’s 50-year existence, only three percent of the approximately 1,700 species listed have recovered. The act has “consistently failed to achieve its intended goals.” The proposed amendments will critically reform the statute by focusing on species recovery and streamlining the ESA permitting process.
Perhaps the most significant reform involves ensuring decisions are based on the best scientific and commercial data available rather than on outdated, incomplete, or selectively interpreted science. Tightening how agencies gather, evaluate, and apply science—especially with listings and critical habitat designations—will enable more transparent, objective, and reviewable scientific decision‑making.
The bill establishes clear statutory definitions of ambiguous terms like “jeopardy,” “foreseeable future,” and “critical habitat” which have allowed agencies and courts to stretch the scientific basis for decisions. Precise language will force agencies to apply consistent, transparent criteria rather than their own interpretations and will reduce reliance on speculative assumptions not grounded in data.
The legislation explicitly states it will eliminate agency bias toward specific species, meaning agencies will need to weigh all scientific evidence rather than cherry-picking. Agencies must also rely on demonstrable, evidence-based impacts and align decisions with empirical data instead of using hypothetical scenarios.
Objective and incremental recovery goals tied to measurable biological metrics will ensure actual scientific progress is being tracked. And requiring five-year status reviews will prevent holding on to outdated assessments, forcing agencies to keep lists and classifications updated.
Other necessary ESA changes include litigation reform. According to Bruce Westerman (R-AR), the bill’s sponsor, “the current law has been undermined by excessive lawsuits.” Legalexperts claim such lawsuits are generally based on obstructing development, procedural errors, or agency decision reversals rather than species protection.
The legislation will place caps on attorneys’ fees to limit taxpayer-funded payouts, which could be costing roughly $4 million a year. By reducing the incentives for high-volume yet low-merit lawsuits, agencies will be able to use resources for species recovery and permitting rather than litigation management. The full costs of ESA litigation will also be reported to Congress, further discouraging excessive lawsuits by showing their fiscal impact.
Frequently and needlessly challenged in court, the five-year post-delisting period will remain free of judicial review. This encourages more delisting and allows the process to be scientifically driven, rather than becoming a litigation battleground.
Allocating costs toward species recovery, rather than mitigation expenses, will put resources to better use. The ConservAmerica study finds the estimated cost to fully recover a species would typically represent 0.25 – 2 percent of a project’s final value. For instance, the species that halted the $8 billion Keystone XL pipeline could have been recovered for an estimated $100 million—less than 1.25 percent of the sunk capital. The disparity is alarming: The U.S. spends billions on legal disputes instead of millions on proactive conservation.
The ESA also aims to strengthen partnerships with states, local governments, and private landowners, giving them a proper seat at the table. As the National Association of Counties aptly points out, this ensures that decisions and strategies are “tailored to particular state and local characteristics and challenges.” Locals know their terrain best, not bureaucrats in Washington.
Implementing best scientific practices and reforming litigation coupled with enhanced state and landowner partnerships will modernize the ESA by focusing on species conservation and results rather than perpetual listing.
Such changes will create more stability and predictability for lawmakers, landowners, and project leaders.
Kristen Walker is Senior Policy Analyst and Manager for Energy and Transportation with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.theamericanconsumer.org or follow on X @ConsumerPal.
