In a seasonal pattern as sure as the coming of fall, there’s been another effort to modernize the Endangered Species Act.
On Tuesday, Sept. 24, the Congressional Western Caucus held a roundtable event on the need to reform the Endangered Species Act (ESA). Several pieces of draft legislation seeking to reform the ESA were also announced during the roundtable.
The two-and-a-half-hour long event hosted by the Western Caucus—a group originally focused on the West but now involves representatives from almost every state and several territories—included comments from 15 representatives and Karen Budd-Falen, Department of the Interior Deputy Solicitor for Fish, Wildlife and Parks; and testimony from 31 different stakeholders from various industries impacted by the ESA.
There were no opposition voices at the roundtable. All participants speaking in favor of reforming the ESA and almost everyone highlighted the ESA’s abysmal success rate of 3 percent in recovering species.
“This program is probably the least efficient and least effective program in the pantheon of federal programs that happen to be out there,” declared Rep. Rob Bishop (R-UT-01), calling it stupidity to just try to make the ESA as is work.
“We also should have a different goal. The goal should be rehabilitation of species, not just listing a species and trying to control the land all around it as though that’s going to be panacea for it.”
Most of the roundtable’s participants also noted that the way the ESA is used today bears little resemblance to its original purpose of protecting and recovering species at risk of extinction.
“Perhaps the biggest effect of the Endangered Species Act has been to incentivize litigation,” summarized Jonathan Wood, senior attorney with the Pacific Legal Foundation.
“As an environmental attorney, I appreciate the work, but we’re not doing well by the species we all care about:
“The ESA has been twisted from its original purpose of protecting and recovering species. It’s now become a bludgeoning tool for frivolous lawsuits from special interest groups,” argued Rep. Greg Gianforte (R-MT-At Large). He also described the act as damaging other ecological efforts in his state.
“Abuse of the ESA is also shutting down our forest management in Montana. It’s been weaponized and now we’re at a point where, instead of managing our forests, we breathe them every summer,” he said in allusion to the growing wildfire threat.
Several participants put the blame for this weaponization on the shoulders of the Equal Access to Justice Act (EAJA). Rep. Bruce Westerman (R-AR-04) observed that the EAJA was “laudably designed so that anyone could work with the government to save a species.” But he outlined how environmental litigation groups have “subverted well-intentioned policy” with what is often called the “sue-and-settle” strategy; submit hundreds of listing petitions, overwhelm the U.S. Fish and Wildlife Service’s abilities to meet the required 90-day response timeline, sue for failing to abide by the ESA, settle and collect attorney’s fees.
This lucrative sue-and-settle strategy was only one of what Rep. Tom McClintock (R-CA-04) called the “perverse incentives” the ESA has created. Another that several roundtable participants mentioned was the “SSS policy” among landowners, which does not help species.
“A lot of people’s policy on endangered species is ‘shoot, shovel, and shut up’ because they cannot afford to have someone know they’ve got an endangered species, or they are going to lose their livelihood and go broke,” Rep. Louie Gohmert (R-TX-01) noted, suggesting the ESA needs to be reformed to incentivize conservation.
“Or at least don’t make it painful,” he added.
Wood noted that the country has learned a lot about what does and doesn’t work in the ESA over the years.
“One of the most important lessons we’ve learned is that, although the law works at preventing the extinction of species, it does not work at promoting recovery. The reason for that is the most important factor for recovering species is creating incentives for the private landowner to protect and restore species.”
Both Wood and Stefanie Smallhouse, president of the Arizona Farm Bureau Federation, praised the reform efforts for including bills aimed at improving the ESA, building trust with property owners, incentivizing conservation, and de-incentivizing lawsuits.
“Modernization, although it generally receives some opposition, is a good thing. With such a poor success rate for recovery, how can we not try to improve upon the act after 40 years? With over 60 percent of critical habitat existing on private land, how can we not take actions to build trust with the landowner, as they are critical in this effort of species conservation?” Smallhouse asked rhetorically.
“Nothing in this package of bills will hurt species recovery or the listing process. It will however build trust and make listing less profitable for the environmental activist community.”
Reform efforts
Nineteen different pieces of draft legislation were announced at the roundtable. As of press time, none of them had been introduced to the House or posted on the Library of Congress. Most of them however are re-submissions of previous bills that died in the 115th Congress or similar to previous bills.
Some of the bills, with brief descriptions according to a summary sheet released by the Western Caucus, are as follows:
• EMPOWERS Act—The Ensuring Meaningful Petition Outreach While Enhancing Rights of States Act would seek to increase consultation between federal agencies and states when it comes to ESA listings. The prior version in the 115th Congress was HR 6345. Other draft bills announced at the same time that pursue similar goals include the Localizing Authority of Management Plans Act (LAMP Act, previously HR 6364), and the Encouraging Voluntary Conservation Activities Through Regulatory Certainty Act.
• PETITION Act—The Providing ESA Timing Improvements That Increase Opportunities for Nonlisting Act seeks to address the listing petition process that is often used by litigative environmental groups. It would give the secretary the ability to declare a “petition backlog” to reduce the incentive for frivolous petitions. The previous version of this was HR 6355.
• The Endangered Species Transparency and Reasonableness Act—The bill would require several pieces of information be made publicly available online: listing decision data; states that might be affected; resources (money and employees’ time) spent in response to ESA lawsuits; attorney’s fees paid in ESA litigation and settlement under the EAJA. It also seeks to cap attorney fee payments at $125/hour as set down in the EAJA. The previous version of this was HR 3608. Another draft bill with a similar goal was the Listing Reform Act, previously HR 717.
• The American Sovereignty and Species Protection Act—This bill would seek to limit ESA-related spending on domestic species. Currently, ESA protections can be applied to non-native species.
• Property Rights Protection Act—This bill would prohibit the designation of private property as critical habitat unless the property owner gives written consent or if there is risk of extinction to a species without the designation. In the latter case, the Secretary of the Interior would have to pay the property owner 150 percent of fair market value for the land and allow the property owner to protect themselves and their property from violent species in the case of active threats.
• Streamlining bills—Both the Saving America’s Vulnerable and Endangered Species Act (SAVES Act, previously HR 2603) and the Federally Integrated Species Health Act (FISH Act, previously HR 3916) seek to streamline or consolidate management related to the ESA. The SAVES Act seeks to eliminate repetitive permitting processes for non-native species moving across state lines. The FISH Act seeks to make the Fish and Wildlife Service solely responsible for administration of the ESA. Currently administration is shared with the National Marine Fisheries Service. — Kerry Halladay, WLJ editor
