Crying Fowl: Further Endangerment on the Way

Abstract

The Endangered Species Act (ESA) is under attack again. California Congressman Richard Pombo's recent reform of the Act would make vast changes to the law, putting the focus on “recovery”, while giving developers and landowners a windfall. Estimates are that more than 90% of all endangered species have at least a portion of their habitats on private land. Currently, landowners discovering such a beast or plant on their land could lose the use of their property and face tough regulations, costs, and uncertainty. Pombo, using his clout as House Resources Committee Chairman, has sponsored a means to dilute federal protection for endangered wildlife and their habitats. The Bill passed the House on September 29th and awaits Senate action. This controversial revision sailed through the House of Representatives along partisan lines, at a speed characterized by one reporter as “normally seen only for motions to adjourn for Christmas vacation”. If the ironically named “Threatened and Endangered Species Recovery Act” (Bill) is approved, successful efforts that have saved hundreds of species of plants and animals in their natural state for future generations may be undone. A more moderate rival bill narrowly failed, and counterparts are certain for Senate consideration. The Washington Post reported that the Bill “is, even by the low standards of this Congress, an unusually loophole-ridden piece of environmental legislation”. Pombo, a long-time personal critic of the ESA who once erroneously claimed that his California ranch was threatened financially because it was critical habitat for the endangered San Joaquin kit fox, clearly has an agenda, which he has not bothered to hide. The new legislation, dubbed “The Extinction Bill” by opponents, would eliminate most existing and future critical habitat protections, a provision of the current ESA considered essential in protecting threatened species. It doesn't take an ecologist to discern that a species cannot be preserved in a wild state without some sort of protected habitat in which to thrive. However, the Bill would no longer allow designations of protected habitat but would substitute recovery plans that are vague and perhaps unenforceable. And it gets worse. Some of the Bill's provisions will directly affect species that were nearly extinct, for instance repealing provisions restricting the use of the pesticides that once nearly wiped out many bird and aquatic species. While I have nothing against reasonable protection of landowners' rights, the legislation goes overboard in creating an entitlement program for property owners who might suffer some restriction under the Bill. This is nothing new. Reformers have long called for “wetlands-like” property compensation in exchange for fully protected habitat. However, the new Bill would potentially enable landowners to collect payments repeatedly for the same property and, by choosing their own appraisers, to effectively determine themselves the amount of money owed to them by the federal government. In what sounds like a self-fulfilling prophesy, the legislation would require that the government respond to a landowner's request to develop previously restricted habitat within 180 days. While I would be the first to agree that the wheels of bureaucracy grind slowly, the legislation mandates that, failing a response, the landowner is free to go forward. If the agency denies the request, it would be required to compensate the property owner for any losses incurred by the limits on development. Don't you just love built-in, slapdash subsidies disguised as regulatory action? The Fish and Wildlife Service, primary custodian for the ESA, does not have funding for this catch-22 scenario. As one report describes it, “The only species that will prosper and multiply under this law are developers indifferent to wildlife and biological diversity”. It is no secret that all has not been rosy with the cumbersome ESA. Some in the environmental community would admit that the 32-year-old law is in need of a “tune-up”. Although the law has aided some species, such as the grizzly bear, American alligator, California condor, gray wolf, peregrine falcon, and bald eagle, conservationists are anxious to improve the pace of recovery. Many argue that the habitat designation and recovery plan processes need to be revised, and in particular that dwindling species need to be listed much earlier, before they are so depleted that recovery would take decades or centuries. Also, there may be consensus that cooperative, incentive-based programs could improve land-management practices, restore habitat, and head off the listing of further endangered species. Incentives only seem to work, however, if there are real teeth to such legislation. It is sad that the best hope may be that Pombo's Bill fails and that nothing is done to the ESA. One environmental activist put it plainly: “What is a fish without a river? What is a bear without woods? The answer: dead”. Douglass F Rohrman Lord, Bissell & Brook LLP, Chicago