By ALLISON A. FREEMAN
Congress is considering a rewrite of the nation's law overseeing the protection of imperiled plants and wildlife – in a move that could make sweeping changes to the Endangered Species Act for the first time since it was put into law over 30 years ago.
The House of Representatives has already passed its overhaul of the act, which would throw out many of the existing mandatory requirements in favor of voluntary measures.
The measure faces a tougher slog in the Senate, but efforts are also brewing on that side of the Hill. Several moderate Republicans are working on drafting their own bills, which could come forward as soon as this month, and the chairmen of the committees with authority to take up changes to ESA have spoken in favor of a congressional rewrite.
If Congress succeeds in making changes, it could drastically alter the way the federal government protects at-risk plants and wildlife and the land they inhabit.
Enacted in 1973 and extolled and vilified by various interest groups over the years, the Endangered Species Act provides protection for more than a thousand species, including charismatic mammals like the blue whale and gray wolf as well as lesserknown plants and animals like the Alabama cave shrimp, the noonday snail, the kangaroo rat or the Elfin tree fern.
The bill's wildlife protections have also ensnared development and recreation projects and been the target of numerous lawsuits.
The act's foes characterize it as a case of good intentions gone awry, saying the law allowed the federal government and environmentalists' lawsuits to hold land hostage without compensation. They contend those restrictions create perverse incentives – a "shoot, shovel and shut up" phenomenon – and encourage landowners to get rid of species they might find on their property, lest they prevent them from moving forward with farming or development.
Further, they argue the act has provided little actual benefit for species. Of all protected species, only 1 percent has been removed from the endangered list.
"The overriding problem with the ESA is that it doesn't balance species protection with human needs," said Reed Hopper of the Pacific Legal Foundation, a property rights group.
Many environmentalists agree the law has some areas for improvement, but they also say that recovery is a longer-term process and in the meantime, it has kept the bald eagle, whooping crane, Florida panther, Canadian lynx and other listed species from tumbling into oblivion.
"When the nation rejoiced last month at the return of the ivory-billed woodpecker, [Interior] Secretary [Gale] Norton said that we rarely have a second chance to save wildlife from extinction," Defenders of Wildlife's Jamie Rappaport Clark told senators at a hearing on ESA this fall. "But the Endangered Species Act is all about first chances to do the same thing, about preventing wildlife extinction now, just in case nature is out of miracles."
Congress has amended the act three times over the years, while keeping its overall structure intact, but has not reauthorized the measure since 1988. Hill staffers say the current momentum for changing the law is the most since 1997, when Sen. John Chafee (R-R.I.) oversaw a bipartisan compromise that sailed through committee but never made it to the floor.
The House of Representatives has already surpassed that benchmark, approving an ESA rewrite that would dramatically depart from existing law in a 226-193 vote in September.
Rep. Richard Pombo (R-Calif.), who chairs the House committee with jurisdiction over the act, sponsored the bill. Its passage marked an incredible career and personal victory for Pombo, who has been a harsh critic of ESA since he first came to Congress over a decade ago.
But his victory did not come without a fight. A group of Democrats and moderate Republicans, including House Science Committee Chairman Sherwood Boehlert (R-N.Y.) and Fisheries Subcommittee Chairman Wayne Gilchrest (R-Md.), mounted opposition on the House floor in the form of a substitute amendment that would have altered key provisions of Pombo's plan.
That substitute was narrowly defeated, in a 216-206 vote. Its backers said that although the House did not accept their proposal, the close numbers indicate significant concerns among members that would send a message to the Senate and burden the bill with uncertainty as it moves forward.
"The bill will not become law in its present form," Boehlert said in comments after the vote. "I can't conceive that the Senate would keep it when a vote is that close."
Feature SEJournal, P.O. Box 2492, Jenkintown, Pa. 19046 Winter 2005 17 Species-protection law overhaul sits in Senate Photo courtesy of U.S. FISH AND WILDLIFE SERVICE The threatened desert tortoise is one of the species whose habitat may be affected by current legislation. (Continued on next page) The bill Pombo ushered through committee and the House floor was not as extreme as proposals he has floated in the past. But it does propose major changes to the way the government would protect listed species.
The bill would throw out many of the current act's mandatory requirements, including "critical habitat." It relies instead on recovery plans, which state and federal wildlife officials would draft for each species. The recovery plans could include habitat provisions but they would not have the same legal force as the current act. The bill says recovery plans are binding, but specifies that federal officials cannot write regulations to go with them.
The legislation also includes a host of landowner payments and protections. The most controversial required the Interior Department to pay landowners for value lost if a species halts development on their land. Critics say it could bankrupt the act.
Pombo described the bill as an effort to enlist private property owners as partners in the species recovery process. Critics said it would leave imperiled plants and wildlife in limbo, with even their continued existence in question.
Throughout this year's ESA debate, lawmakers admitted the real question is what could happen on the other side of the Hill. Analysts following the bill see the Senate as the real gatekeepers in a potential overhaul, noting that proposals that could pass in the GOP-dominant House would never make it through the filibuster requirements of the more closely-divided Senate.
Sen. Lincoln Chafee (R-R.I.), who chairs the wildlife subcommittee, has said he is interested in moving on legislation to alter the act, but is on a slower timeline than the House. He has said he has some concerns with Pombo's bill and would like to wait to see what recommendations come out of a planned stakeholder summit in Keystone, Colo., before moving forward.
Chafee, who is facing a tight election race next year in an environmentally conscious state, and the ranking Democrat on his panel, Sen. Hillary Clinton (D-N.Y.), have said they are leaning toward a much less extensive overhaul than the House bill. Both have noted their desire to make sure environmental groups are on board with whatever proposal they put forward.
Meanwhile, Sens. Mike Crapo (R-Idaho) and Blanche Lincoln (D-Neb.) have formed their own ESA working group and have said they would like to propose legislation this year. Crapo has said he wants to increase landowner incentives and the role of states.
But for any bill to move forward in the Senate, it will have to first meet the approval of Sen. James Inhofe (R-Okla.), who chairs the full committee with jurisdiction over the ESA and to whom Chafee must report.
Inhofe has said he is willing to defer to Chafee and Clinton to work on their own proposal for now. But he reserved the right to step in and take the reins and possibly introduce the Pombo bill. For his part, Chafee has said he would use his late father's bill to guide his approach to revising the law. That bill revamped ESA's recovery program and deadlines and gave additional protections to landowners.
But lobbyists who have followed the issue for years said that trying to move a bill forward in the Senate could be even harder now than when Chafee's father worked on his legislation nine years ago. At that time, the blessing of then-President Clinton was enough to garner Democratic votes, but now members are more fractured.
"I think consensus is possible," said Mike Senatore of Defenders of Wildlife. "But saying there is interest and desire is one thing, and actually getting down to do it and trying to get agreement on legislation another. It's tough to see a process that would get us to a bill."
Chafee has acknowledged that the road ahead could be rough. "Is it possible? That's the big question," he said after a hearing earlier this year, noting that even his father's bipartisan bill did not win full Senate approval. "It's not going to be easy."
One chief area of ongoing debate will likely be what changes to make to the act's existing critical habitat requirements, one of the more contentious issues and the chief source of ESA lawsuits. Pombo's plan eliminated the requirement, to the chagrin of environmentalists. The Keystone summit the Senate is organizing will focus on critical habitat.
While opinions differ on how to change critical habitat, consensus is growing around the need to make some alterations. The substitute amendment that challenged Pombo's proposal also eliminated critical habitat. And even Democrats on his committee who ultimately opposed the bill said they were willing to give up critical habitat, as long as some sort of binding agreement was in its place.
The current ESA mandates designation of critical habitat, defined as an area "essential for species' survival and recovery." Agencies or developers within those designations who want federal permits must consult with Fish and Wildlife Service officials before undertaking activities that might harm the species or its habitat.
FWS officials from the Bush and Clinton administrations have said the habitat designations are redundant and burdensome and provide little protection beyond other safeguards that come with a species' listing.
Scientists have gone back and forth on the value of critical habitat, with some peer-reviewed articles showing it provides little to no added benefit and others showing that species with habitat designations can be twice as likely to recover.
But regardless of the benefits or burdens of critical habitat, the surrounding controversy has indisputably kept federal officials in the courtroom. ESA requires the designations at the time of listing, but the government almost never designates habitat until forced to by a lawsuit. Then, even after designations are made, the agency is often met with another string of lawsuits from environmental groups or developers challenging the specifics of the proposals.
Some environmentalists have said a better alternative would be to keep critical habitat requirements, but move the deadlines out, which would give FWS more time to research a species and hopefully lead to a stronger scientific basis for the designation, making it less vulnerable to court challenges.
Allison A. Freeman is a reporter for Greenwire and Environment & Energy Daily, www.eenews.net
** From SEJ's quarterly newsletter SEJournal Winter, 2005 issue