Efforts to rollback protections under the Endangered Species Act (ESA) have been in the works since the beginning of the Trump administration. In January, President Trump’s executive order on the “Core Principles for Rebuilding the Economy” criticized the ESA, saying strict environmental regulations had made it difficult to develop American resources and allowed “energy domination” to slip through its fingers. Executive orders in the past few months have instructed federal agencies to rewrite ESA rules in ways that could expedite fossil fuel development, by-passing standard environmental reviews.

Burgum and other conservatives argue that the ESA’s recovery rules are toothless, with strict timelines and artificial triggers that don’t help species to come back. But many scientists and legal experts say the issue is not the ESA’s framework, but rather long-standing underfunding and political inconsistencies.

“The problem isn’t with the Act, but with how it’s been used,” said David Wilcove, professor of ecology and evolutionary biology at Princeton University. “We continue to wait until species are in dire straits before we protect them, which makes recovery far more difficult and expensive.”

A record of prevention, not just recovery

Although the ESA is often criticized for how few listed species recover and go extinct while under federal protection, experts say it has an uncelebrated history of preventing total extinctions. In 1973, when the ESA became law, the federal government was already monitoring at least 115 species that were on the path to extinction. Since then, just 26 listed species have been declared extinct, all under federal protection.

By contrast, at least 47 species are estimated to have gone extinct after being recommended for listing but denied protection, or while waiting on a final determination. “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.”

The bald eagle is the ESA’s most famous success story. The pesticide DDT, which was commonly used in the 1960s, along with habitat loss, left just a few hundred nesting pairs of bald eagles in the lower 48 states. After banning DDT and adding the bird to the endangered list in 1978, the U.S. Fish and Wildlife Service (FWS) worked to create and expand protections for eagle habitats. By 2007, eagle populations had grown to nearly 10,000 pairs nationwide and they were removed from the endangered list.

The ESA also helped American alligators and Steller sea lions to rebound, thanks to specific protections.

The challenges on private lands

The ESA’s mandates on both public and private lands are a source of continual controversy. In 2015, the Center for Biological Diversity found that more than two-thirds of all listed species depend on private lands for survival and about 10 percent exist on private lands alone.

“Your ability to use that land is going to be limited, and you can be prosecuted,” explained Jonathan Adler, professor of environmental law at William & Mary. “That discourages landowners from cooperating.”

Research on red-cockaded woodpeckers, an endangered species, for example, shows that landowners take actions that are “consistent with perverse incentives created by environmental laws.” In other words, timber was harvested early in areas where the bird nested, possibly to avoid anticipated federal restrictions on logging on that land.

Congress has long tried to offer incentives to private landowners such as tax breaks and conservation easements, which reduce taxes for owners who agree to protect certain species or habitats. But the programs have been slowly declining in recent years, according to researchers.

Looking to the future

The ESA used to be popular across party lines, but in recent years, it’s become one of the most litigated environmental laws in U.S. history. The Trump administration is the latest to try to roll back ESA protections, and could be the first to have lasting success if the conservative Supreme Court gets involved.

Conservationists and researchers are also concerned about the species that could be left out. Congress regularly overrules the Fish and Wildlife Service when it proposes a new listing, and an administration push to rewrite the rules could reduce that backstop. An aggressive rollback would come at a time when habitat loss and climate change are driving more species towards crisis, according to scientists.

“There is certainly the real possibility that we could lose an enormous amount of ground,” said Andrew Mergen, who worked in the U.S. Department of Justice Environment and Natural Resources Division for decades, litigating ESA cases, and is now a professor at Harvard Law School. “But this isn’t an argument about deregulation. The law has averted extinctions, the challenge is providing the funding and political will to help species recover, not taking away the protections that have kept them alive.”

A hint of optimism

Despite the ESA’s fraught political landscape, conservation groups are pointing to recent success stories as examples of what’s possible. In July, the U.S. Fish and Wildlife Service announced the Roanoke logperch, a small freshwater fish, is no longer endangered. After recovering from habitat loss and a decline in water quality, it is one of only two fish in the country to have ever been delisted, according to the FWS. Burgum says it’s the type of proof the ESA is no longer “Hotel California.”

But conservationists point out that the logperch recovery is a result of nearly 40 years of federal effort—including dam removals, wetland restoration, and expensive reintroduction efforts—that began long before the Trump administration took office.

“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.”