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Controversial Attack on Endangered Species Act May Backfire

by Christopher Getzan

Draft legislation that would effectively hobble the Endangered Species Act may have the inadvertent effect of mobilizing conservationist forces – including some Republicans – to stand fast behind the ESA.

July 12, 2005 – A new bill being drawn up by Republicans on a key House Committee may severely curtail the government's power to enforce the Endangered Species Act (ESA) and eventually do away with the landmark law.

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A recently leaked draft of the planned legislation suggests Republicans wish to replace the 32-year old Act by narrowing the kinds of data used to define threatened or endangered species; tweaking the law's definition of "conservation" so that full recovery of at-risk species from possible extinction is no longer its goal; and eventually "sunset" all provisions of the Endangered Species Act (ESA) by no later than 2015. The draft was made public by Endangered Species & Wetlands Report.

Titled the "Threatened and Endangered Species Recovery Act of 2005," the draft bill's controversial changes to the widely hailed environmental legislation also include exempting government actions that could further harm endangered species from independent agency review, and omitting from the category of potentially harmful invasive species those that are reared or cultivated for "food or fiber or other human use."

Republican members of the House Resources Committee, which has legislative and funding oversight of the Endangered Species Act, are behind the new legislation. Insiders all agree that committee chairman and longtime critic of the ESA, Richard Pombo (R-California), is the draft bill’s driving force.

By environmentalists' accounts, the ESA's neglected list of species is missing hundreds of plants, animals and habitats in need of protection.

Enacted in 1973, the Endangered Species Act requires that the federal government protect all species "in danger of extinction throughout all or a significant portion of [their] range[s]," as well as threatened species, or those "likely to become endangered in the foreseeable future throughout all or a significant portion of [their] range[s]."

There are currently 1,246 species of fish, plants, and wildlife on the endangered species list. While just 25 species placed on the list in the history of the ESA have managed to make it off as "recovered," only nine listed species have gone extinct, and many scientists and environmental groups consider this ratio a successful one.

Critics of the Act – including some conservative politicians and industrialists – consider the lack of fully recovered species a sign that the ESA is ineffective and wrong-headed.

While some conservationist groups have begun an online letter writing campaign to stave off the impending Recovery Act, a spokesperson for the Republican leadership of the House Resources Committee said that the leaked draft is "an old document." Because it is "still evolving," said Bryan Kennedy, the final draft may come to resemble something more agreeable to environmentalists and Democrats when it is introduced in either late July or early August.

Kennedy would not provide The NewStandard an updated draft, however.

Among its more significant changes, the leaked draft calls for the research used in making determinations for endangered or threatened species be based on what the Secretary of the Interior determines as the most "relevant." Environmentalists say this provision could potentially invite political or corporate interests to overrule scientific judgments. In addition, other federal agencies would be able to ignore the impacts of historic or even current ESA decisions when evaluating information about a threatened or endangered species.

Pombo's office released a report in May that, while critical of the ESA, was much milder in contrast to the draft Recovery Act.

Another section of the Recovery Act loosens the definition of "conservation" in the original Endangered Species Act, making it possible to construe that federal agencies are only required to "protect," or maintain current endangered or threatened species populations, rather than work to fully rehabilitate them.

The most dramatic change is found in Section 24 of the draft, which would submit the ESA and obligations to the bill to a "sunset clause" in October of 2015, effectively killing the law.

"The bill contains at least seven proposals, each of which would cripple the federal effort to help endangered species," Defenders of Wildlife President Rodger Schlickeisen said in a statement. "It also creates a whole new series of loopholes that enable oil companies, large-scale developers, timber companies, mining corporations, and other special interests to dodge the Act’s protections. The bill runs counter to the very intent of the Endangered Species Act, which was put in place to ensure that human activity does not cause wildlife to go extinct."

Jim Sims, former director of communications for Vice President Dick Cheney’s Energy Task Force and current head of Partnership for The West, a nonprofit organization that provides network and issue orientation for numerous businesses and groups that advocate for property owners, says the draft bill will permit greater flexibility in working with commercial interests. The "great majority" of such parties, Sims told TNS, "want to do the right thing" when they find endangered species on land they wish to develop or use.

The mainstream League of Conservation Voters has given Pombo’s environmental voting record an average rating of just 3 percent for the last congressional term.

"There are those who don’t want the Endangered Species Act updated under any circumstances," Sims said. "If you care about recovering species, there is no way you can argue the Endangered Species Act doesn’t need to be improved."

Critics of such changes, asserted Sims, only care about keeping land from being used for development and industrial purposes, rather than aiding endangered or threatened species.

However, many environmentalists and conservationists are themselves critics of the ESA in its current form. By environmentalists' accounts, the ESA's neglected list of species is missing hundreds of plants, animals and habitats in need of protection.

Liz Godfrey, Program Director for the Endangered Species Coalition, a national umbrella group of scientific and citizens’ organizations, says the ESA requires even more funding for species listing purposes to be more fully effective.

Godfrey's position appears to be supported by the committee’s ranking Democrat as well. In an April statement, Representative Nick Rahall said reforming the currently hobbled ESA instead of fully funding it was "like putting the patient under the knife when all he needs to do is eat better." According to Rahall, " The blame [for ESA's failures] rests on decades of shortsighted policy and actions, and scarce funds supplied by the Congress."

Kieran Suckling, policy director for the Center for Biological Diversity, said that the "sixty-four-thousand dollar question" for conservationists is just what Rep. Pombo has in mind if he submits a bill that would be unlikely to pass the gauntlet of Committee Democrats in its current form. In fact, Pombo's office released a report in May that, while critical of the ESA, was much milder in contrast to the draft Recovery Act.

"Democrats and moderate Republicans [could] say that they're tired of Pombo's chest beating over the Endangered Species Act, and go and write their own bill," said Suckling. "A lot of Republicans are sick of getting beat up by Pombo over the Endangered Species Act."

Recent findings by the Government Accountability Office, Congress's investigative and auditing agency, were considerably less sweeping in their recommendations for improving the effectiveness of the law. In April, the GAO recommended that the Department of the Interior and the US Fish and Wildlife Service (USFWS) make periodic reviews of spending allocations to ensure the animals and habitats in most danger are receiving the funding they should.

A month later, GAO testimony to the Senate on problems executing ESA prerogatives highlighted instances of creative cooperation between USFWS and normally less conservation-minded federal agencies like the Department of Defense, and recommended government organizations work harder and communicate better to ensure more cost-effective and less bureaucratic implementation of the ESA.

Though Rep. Pombo has been clamoring to overhaul the ESA since arriving to Congress in the mid 1990s, he was nonetheless elevated to the chair of the House Resources Committee by House GOP leaders in 2004. Many environmental groups suspicious of his motives criticized his ascension to the chairmanship.

The mainstream League of Conservation Voters has given Pombo’s environmental voting record an average rating of just 3 percent for the last congressional term. Meanwhile, Pombo has been a steady recipient of largesse from the dairy industry, agribusiness, real estate interests, and energy companies – all industries in need of unencumbered access to large swathes of land.

Pombo's legislative work has also been lauded by organizations within the so-called "wise use" movement, a loose assemblage of conservative politicians, "free market" advocates, big ranching interests and resource extraction companies. Wise users – also known as "land rights" advocates – are dedicated to shaking off what they consider to be burdensome federal regulations governing the use of private and public lands, epitomized by those found in the ESA. In fact, some of the criticisms of the ESA contained in Pombo's May 2005 report parrot traditional complaints wise users level against the Act.

Though Suckling of the Center for Biological Diversity considers the draft of the Recovery Act "completely consistent with every bill [Pombo has] submitted" related to the ESA, he recalled that Pombo had been talking about reaching out to more moderate Republicans on ESA issues. "If he had done so," Suckling said, "[that] bill would've had much more of a chance of succeeding. I think Pombo has shot himself in the foot, and there are few people on the right or the left who will want to be associated with the bill.

According to multiple sources close to the original leak, it was a disgruntled Republican lawmaker who originally revealed the controversial draft version of the Recovery Act to the media and conservationists.

"The [Committee] Democrats are more charged up than I've ever seen before," commented Suckling. "I think [the Pombo bill has] energized the pro-Endangered Species Act people."

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The NewStandard ceased publishing on April 27, 2007.

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Christopher Getzan is a contributing journalist.

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