January 2005     

Endangered Species Act Reform

By Henry Lamb

Reform of the Endangered Species Act has been a high priority since the Act expired in October, 1992. Congress has continued the Act through annual appropriations, but fundamental reform has been blocked by conflicting political pressures.

House Resources Committee Chairman, Richard Pombo, says the next two years offers the best opportunity we've ever had. He says "It's our best shot to move forward, and I'm going to do it."

Pombo, who represents California's 11^th District, was elected to Congress by campaigning to reform the ESA and to protect private property rights. In his first term, he wrote a comprehensive, 1500-page bill that fixed every problem in the Endangered Species Act.

"I got beat severely," Pombo says. The bill never saw the light of day.

As Committee Chairman, he has been able to influence legislation, and guide it through the House, only to watch it die in the Senate. For the next Congress, a new strategy is being developed.

The new approach will not be another 1500-page bill. Instead, there will be multiple single-focus bills, introduced by different Congressmen. Each bill will aim at correcting a single problem. Rather than creating a single, big target for the opposition, several targets, moving at different times, will be much more difficult to defeat.

On the Senate side, Senator Michael Crapo (R-ID), chairs the Environment and Public Works Subcommittee on Fisheries, Wildlife and Water. He and Pombo were elected to Congress the same year, and discovered they shared many of the same values and goals. Both are now in powerful positions, and will coordinate their efforts to reform the ESA. Both men agree that without grassroots support, there is no hope of passage.

The National Endangered Species Act Reform Coalition (NESARC) has existed since 1992. It consists of about 100 organizations, trade associations, and businesses. It is managed by the beltway law firm, Van Ness Feldman. They have developed what they call "A New Approach" to reforming the ESA. Their plan calls for (1) giving the states the option of "partnering" with the feds in implementing the ESA; (2) expanding "voluntary" conservation efforts; and (3) providing additional funding for state programs. Their overall emphasis is to promote "species recovery," rather than "species listing."

A second grassroots ESA Coalition is also developing a reform strategy for the 109^th Congress. This group has also been around since the early 1990s, and represents grassroots organizations across the country. This group has no staff, and is managed by a group of volunteers who operate by sheer determination. Their goal is to repeal the ESA. They know, however, that repeal is not yet a realistic possibility. Therefore, their strategy will likely be to advance the minimum goals that define real reform and work toward incorporating these goals into single-focus bills for consideration by Congress. These goals would include such things as compensation for land use restrictions imposed by critical habitat designation; elimination of third-party law suits, or at least setting a higher bar for standing in citizen-suits.

The wide difference in the goals of these two groups could kill reform efforts again. It is imperative that all who want ESA reform find a way to avoid fighting with each other, and direct all our energies toward gaining whatever ground may be won. Opponents of ESA reform want to strengthen the law by relaxing listing requirements and expanding habitat designations.

A third influence on ESA reform will come from the administration. The point man for ESA implementation is Craig Manson, Assistant Secretary for Fish, Wildlife and Parks, in the Department of Interior. This administration's environmental policy arises from the philosophy that conservation should be voluntary, rather than forced. The function of government should be to encourage and provide incentives, rather than to force through regulations. Therefore, new programs are being developed that could transform "critical habitat," on private property into something that looks very much like the land set-aside programs in the Department of Agriculture.

Instead of forcing people to stop using their land because it is home for a bug-eyed beatle, the government might offer the landowner payments in exchange for leaving the land idle. This solution addresses the compensation issue, and would eliminate endless litigation. Opponents of reform, however, despise this option.

The President's recent Cooperative Conservation Executive Order also provides ESA reform opportunities. This EO provides the authority for agencies to modify rules of implementation, thereby requiring field personnel to comply with measures designed to protect private property rights.

This administration is also working to change the agency culture that remains from the 1990s. The Department of Interior was filled with activists from environmental organizations during the Clinton-Gore-Babbitt years. Because most of these people are covered by civil service rules, they cannot be summarily replaced. Mid-level management positions must be approved by the Assistant Secretary. Manson said that his approval is granted only to individuals who have demonstrated agreement with the administration's philosophy. Turn-over in these positions has been slow during the first Bush term. It will accelerate during the second term. Manson said that he has received "a clear message to move forward in the second term."

It is important that all grassroots activists keep abreast of the strategies and campaigns that are being developed for the next Congress. We will keep you posted in these pages, in our on-line publications, and, as appropriate, though our on-line email alert network.

Henry Lamb is the Executive Vice President of the Environmental Conservation Organization (ECO), and Chairman of Sovereignty International.