The Endangered Species Act Is a Permitting Problem and a Conservation Opportunity
The Endangered Species Act was signed in 1973 to keep America’s most imperiled species from going extinct. By that core measure, it has been a partial success. Bald eagles, peregrine falcons, and grizzly bears in the Greater Yellowstone Ecosystem are alive today in part because of it. Yet more than half a century in, the ESA has also become one of the most consequential permitting statutes in federal law, and the way it is administered now disserves both species recovery and infrastructure.
The mechanism is Section 7. Whenever a federal action may affect a listed species or its critical habitat, the action agency must consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. Formal consultations are supposed to conclude within 135 days under statute. In practice, on contested projects, they take far longer. Biological opinions are reopened, supplemented, litigated, and reissued. Each cycle adds months or years to the underlying project schedule.
ConservAmerica’s January 2026 report, Powering America Through Endangered Species Act Reform, makes a bold and underappreciated argument. The same Section 7 delays that hold up transmission lines, water projects, and broadband buildouts also hold up infrastructure that would, in the long run, benefit listed species. Transmission delivers wind and solar that displaces coal and gas, reducing climate pressure on temperature-sensitive species. New water infrastructure can sustain instream flows for native fish. Habitat connectivity projects, including wildlife crossings and corridor easements, often require federal permits that themselves trigger Section 7. The current implementation of the statute can become a self-defeating loop in which conservation infrastructure cannot be permitted because of conservation rules.
The conservative answer is not to weaken Section 7. It is to make voluntary, market-based recovery the primary engine of species protection. The federal government already operates several voluntary tools, including Candidate Conservation Agreements with Assurances and Safe Harbor Agreements, which give private landowners regulatory certainty in exchange for conservation actions on their land. These programs work. They have brought private timber, ranch, and farm acreage into recovery efforts that would otherwise be impossible. Recent regulatory action consolidating these tools into a streamlined Conservation Benefit Agreement is a step in the right direction.
Powering America proposes building outward from these tools. Species recovery agreements should be the standard pathway for landowners and project sponsors who want to contribute to recovery and obtain certainty in return. Section 7 consultation should be tightened with hard deadlines and a single, integrated biological opinion when multiple permits affect the same project. Litigation reform should focus on the procedural tactics that re-open closed consultations, rather than altering the substantive standards that protect listed species. Recovery plans should be funded and implemented as if recovery were the actual goal, with clear delisting criteria and transparent metrics.
This approach is better for wildlife than the litigation-driven status quo. Litigation can stop a project. It cannot pay for habitat restoration, fund a hatchery, install a fish passage, or compensate a rancher for hosting a sage grouse lek. Voluntary, incentive-based agreements can.
The Endangered Species Act remains one of the most powerful conservation statutes ever written. Reform that respects that legacy while clearing the procedural underbrush is good for species and good for the country. The Powering America report is the policy blueprint. Read it.