The Trump administration has ramped up its attacks on the ESA since January. They’ve criticized the law as a paralyzing over-regulation that’s blocked “energy domination.” This year’s batch of executive orders on the environment direct agencies to rewrite ESA rules to expedite fossil fuel projects and skirt environmental review requirements.

Burgum and other conservatives make the case that the law is broken because its strict rules do little to foster recovery. Scientists and legal scholars point the finger elsewhere: at systemic underfunding and political inconstancy.

“The problem isn’t the law itself, it’s that we don’t implement the law well,” said Jonathan Adler, an environmental law professor at the University of Maryland.

“We continue to wait until species are in dire straits before we protect them,” Princeton ecology professor David Wilcove said. “That makes recovery far more difficult and expensive.”

The Real Story of the ESA: Prevention, Not Just Recovery

The law may have its critics, but experts say the ESA’s primary achievement is preventing mass extinctions.

From the ESA’s passage in 1973 to now, only 26 listed species have been declared extinct while under federal protection. In the meantime, at least 47 species are believed to have gone extinct while on the ESA waiting list.

“The ESA works more like a critical care unit than a hotel,” Wilcove said. “It’s as though we built a great hospital but never funded enough doctors or equipment to help the patients.”

Among the law’s success stories: the bald eagle. Widespread use of the pesticide DDT and loss of habitat had left just a few hundred nesting pairs of eagles in the lower 48 states by the 1960s. After the chemical was banned and the bird gained ESA protections in 1978, the population began its slow recovery. By 2007, the bald eagle was taken off the endangered list, with more than 10,000 pairs nationwide.

The story is similar for other threatened and endangered species, from American alligators to the Steller sea lion.

One of the law’s major challenges is reconciling protections with landowner rights. The ESA applies to both public and private lands, leading to conflicts over species whose habitats cross both.

“We’re talking about animals or plants that have their own legal rights and can trump yours,” said Jonathan Adler, an environmental law professor at William & Mary. “Your ability to use that land is going to be limited and you can be prosecuted. That discourages landowners from cooperating.”

There’s research to back that up. One study on red-cockaded woodpeckers found timber was harvested early in areas with the birds, likely to avert federal habitat restrictions. Tax incentives, conservation easements, and other programs have helped ease that tension, offering tax breaks and other economic benefits to landowners that protect habitats. But those programs have largely atrophied in recent years, conservationists say.

The ESA: Past, Present, Future

If there’s a bright spot, it’s that the ESA once had broad bipartisan support. But efforts to scale back the law date to at least the George H.W. Bush administration, and pop up with every change in administration.

The Trump administration’s aggressive rollbacks, a conservative-leaning Supreme Court, and Congress’s inaction have conservationists worried. Meanwhile, climate change and habitat loss are taking a greater toll on species, with more pushed toward critical levels.

Andrew Mergen, who spent two decades litigating ESA cases at Harvard Law School’s environmental law clinic, doesn’t buy the idea of the ESA as “Hotel California.” The law has done what it set out to do—prevent extinctions, he argues—and the real challenge is funding and political will.

“The law has kept the lights on, but we haven’t put a lot of energy or effort into investing in their recovery,” Mergen said.

What actually worked in Roanoke County

In July, the U.S. Fish and Wildlife Service (FWS) made a bit of news when it declared the Roanoke logperch had recovered enough to be delisted. Burgum called it “proof positive that the ESA is no longer Hotel California.”

Conservationists point out the fish’s recovery took more than three decades. A species of freshwater fish once found along the Roanoke River in Virginia, extensive damming and habitat loss brought it to near-extinction levels in the 1980s.

A complex set of dam removals, wetland restoration, and (costly) reintroduction efforts followed, launched long before Trump took office. It’s the type of long-game investment in recovery that, once the politics are taken out, experts agree has worked under the ESA. (Virginia’s FWS regional office even shot down Burgum’s contention that the recovery shows the ESA isn’t broken.)

“The optimistic part,” Wilcove said, “is that we know how to save species when we invest in them. The question is whether we’ll make that commitment.”