Engineered Wood Journal: Endangered Species
Long-Awaited ESA Reforms Not Likely Until After November Elections
Congress has been attempting to update and improve the Endangered Species Act (ESA) since 1992. Unfortunately, despite the fact that the law has been causing economic and social pain throughout large sectors of the economy-the wood products industry being one of the hardest hit-no reform legislation has actually been considered on the floor of either the House or the Senate.
The reason? Simply stated, the ESA is the most emotionally charged piece of environmental legislation ever adopted. The environmental community considers it to be its crown jewel, and environmental groups and their supporters in Congress have consistently dug in their heels and refused to make even the most basic and common-sense changes to the law. This obstructionism is particularly frustrating when one reviews the numerous examples of economic hardship that the ESA's implementation has caused, combined with the fact that, to date, not a single species has been recovered as a result of actions taken under the ESA.
Changes must be made, and while it is unlikely they will be made in 2000, the pieces are being put in place to make reform a reality in the 107th Congress in 2001.
What Is Happening Now?
At this moment, there are over 30 ESA-related pieces of legislation pending before Congress. The chance that any of these bills will be passed into law in 2000 is slim due to the political polarization which is common during a presidential election year. But the ideas embodied in those bills will form the basis for the reform activities which will begin immediately after the elections in November. Some of the key legislation currently pending before Congress includes:
H.R. 3160, the Common Sense Protections for Endangered Species Act-This process-oriented bill was introduced by Congressman Don Young (R-AK), the chairman of the House Resources Committee, which has jurisdiction over the ESA. This legislation would improve the ESA in a number of ways. First, it would ensure that the best possible science is used to make key listing, delisting, and species protection decisions. Second, it would improve federal efforts to keep the public informed and give people an opportunity to comment on ESA decisions which directly impact their lives. Third, the bill mandates that species must be delisted once their recovery goal is met. And finally, it provides federal agencies such as the U.S. Forest Service more latitude in how the ESA is implemented on their lands.
H.R. 1142, the Landowners Equal Treatment Act of 1999-This legislation, also introduced by Chairman Young, would ensure that private property owners are compensated when their land must be used by the federal government as habitat for endangered or threatened species.
S. 1202, the Private Property Protection Act-This legislation, introduced by Senator Ben Nighthorse Campbell (R-CO), would require federal employees to obtain permission from private property owners before they could enter the property to search for endangered species. If the landowner refuses, the government would have to obtain a court order allowing government access.
H.R. 574, the Science Integrity Act-Congressman Richard Pombo (R-CA), a leader in the ESA reform effort in both the 105th and 106th Congresses, sponsored this legislation. Its purpose is to require peer review of all scientific data used in support of federal regulations. While the bill does not specifically mention the ESA, the legislation, if passed, would require the Fish and Wildlife Service to conduct peer review on all science used to promulgate regulations under the Act. Another key player in the upcoming ESA reform debate is freshman Senator Mike Crapo (R-ID). Senator Crapo, a Harvard educated conservative who served three terms in the U.S. House of Representatives, was elected to the Senate in 1998 and was immediately appointed the chairman of the Environment and Public Works (EPW) Subcommittee on Fisheries, Wildlife, and Drinking Water, the subcommittee with jurisdiction over the ESA. He has held numerous hearings on various aspects of the ESA in an effort to determine what areas present the best potential avenues for compromise, and what are the issues for which reformers must be prepared to fight.
Senator Crapo is expected to use the information gathered from these hearings to produce a comprehensive ESA reform bill. Because of his position as the Chairman of the subcommittee with jurisdiction over this issue, whatever legislation he puts on the table will immediately become the vehicle by which the Senate considers ESA reform. At this point, the exact issues which the senator will address remain unknown, but based upon conversations with him and his staff, one can assume that principles such as creating incentives to conserve habitat, improving the science used for listing and management decisions, and protecting the property and water rights of the nation's citizens will be among those addressed.
Changes Bring Opportunities
Other key factors which will impact how Congress addresses ESA reform now and in the future include: Senator Bob Smith (R-NH) Takes Control of the EPW Committee-Senator Smith became the new chairman of the Senate EPW Committee in November 1999, replacing the late Senator John Chafee (R-RI). While both senators hailed from New England, Smith's politics stand in stark contrast to those of Chafee, who championed many environmental causes. For his part, Smith falls comfortably into the GOP's most conservative wing and has a 36 percent lifetime rating from the League of Conservation Voters (as compared to Chafee's 70 percent). That is good news for supporters of reform.
New Leadership in the House of Representatives-Regardless of which party controls the House of Representatives, there will be a new chairman of the House Resources Committee in 2001. The current Chairman, Congressman Don Young, will step down as a result of term limits on committee chairmen imposed by the Republican Caucus. His most likely successor will be Congressman Jim Hansen of Utah. While seen as an adversary by most of the environmental community, Hansen is respected by colleagues from both parties for his even-handed chairmanship of the House Ethics Committee. Hansen has been a long-time supporter of ESA reform, and it is expected that he would continue to support reform as Chairman. Should the Democrats retake control of the House there is some uncertainty as to who would lead the Resources Committee.
A New President-Come 2001, the country will have a new president for the first time in eight years. While it is impossible to know who this person will be, it is certain that he will alter both how the ESA is implemented and how his administration deals with congressional efforts to reform the Act. Conventional wisdom states that a Republican administration would be more receptive to reform efforts than a Democratic one, but to what degree this receptivity would extend depends on the individual.
Al Gore, of course, is one of the nation's most celebrated environmentalists and has a long history of supporting the agendas of national environmental groups. Bill Bradley was recently endorsed by the Friends of the Earth and shares many of Gore's environmental concerns. In fact, Bradley actually scored a higher lifetime environmental rating from the League of Conservation Voters (LCV) than did Gore by a score of 88.5 to 66.5 percent. Bradley also cosponsored legislation in 1993 that contained most of the environmental community's "wish list" for changes they wanted to see made to the ESA. However, unlike Gore, he has not made the environment a lead issue in his political career and thus far during his presidential campaign has not made any statements directly concerning the ESA.
Among the Republicans, George W. Bush and John McCain are both viewed as being favorably disposed toward enacting reforms to environmental laws. Their reforms would likely give impacted businesses and communities more say in how those laws are implemented. As Governor of Texas, Bush has had to deal with one of the most contentious ESA issues in the country--the conflict between environmentalists attempting to preserve habitat for the golden cheeked warbler in the hill country around Austin, and developers who want to utilize the space to build much needed housing for the rapidly growing area. Texas is also host to a score of other endangered species conflicts.
All of these experiences would give Bush firsthand knowledge of just how difficult these issues can be, knowledge that no president has had since the ESA was enacted in 1973. For his part, McCain has not taken any public position on efforts to update the ESA. However, he has championed efforts to return decision-making authority to the state and local levels, a key concept in the mind of most ESA reformers.
ESA and the Courts-Finally, 2000 is expected to bring a decision in at least one major court case filed by the environmental community. That case questions the validity of the Clinton administration's "No Surprises" policy, a central component of the administration's efforts to avoid environmental train wrecks by having landowners sign habitat conservation plans (HCPs). HCPs spell out exactly what a landowner can and cannot do with his or her property when an endangered species is present.
The No Surprises element of an HCP basically means "a deal's a deal." When the government and the landowner agree to a plan, the government can't come back later and require more mitigation, so long as the landowner complies in good faith with the plan. The primary incentive for landowners to join an HCP is certainty about the actions they will be able to take. No Surprises ensures that the government will be able to offer this certainty.
In the case of the Spirit of the Sage Council v. Babbitt, the environmental community has sued to eliminate the No Surprises guarantee on the grounds that it does not allow for proper protection of listed species and because there is no language in the ESA allowing the administration to implement such agreements. Should the environmental community win its case, and there is a good chance it might, then the government would lose one of the very few incentives it has to offer landowners to work with them to protect species.
As a result, the number of costly and prominent train wrecks which defined government/industry relations in the late 1980s and early 1990s would again skyrocket, causing even more economic hardship. Should this happen, Congress will be under even more pressure to reform the ESA and reinstate the No Surprises guarantee.
ESA Reform Will Become a Reality
While the ESA will likely not be updated until 2001, pressure to amend the law is building every day, ensuring that ESA reform will become a reality. Additionally, while the ESA continues to cause economic hardship for many of America's citizens, the ESA isn't saving species and reflects the worst kind of public policy-one which creates fear in our citizens. Because of the ESA, the very existence of threatened or endangered species is a threat to people's homes and livelihoods.
It shouldn't be this way. We've learned too much over the past quarter century to let such a pervasive law just keep clunking along when there are common-sense improvements that can be made. Codifying the Clinton Administration's "No Surprises" policy, increasing the role of state and local governments, increasing public input, ensuring the use of the best possible science, and improving the recovery planning and implementation processes are all modifications that will not only make the law easier for people to live with, but which will make the law work better for the species it was designed to protect.
It must be remembered, however, that congressional action does not occur in a vacuum, and quick action on ESA reform is not guaranteed. Supporters of ESA reform must view 2000 as a building year in which we work to keep the issue in the minds of the nation's legislators and push them to act. To that end, I and the members of the National Endangered Species Act Reform Coalition encourage you to contact your members of Congress and let them know just how important reforming the ESA is to you.
Working together we can make ESA reform a reality.
James A. McClure represented the State of Idaho in both the U.S. House of Representatives and U.S. Senate from 1966 to 1990. As a Senator in 1973, McClure voted in favor of the original ESA both on the floor of the Senate and during its consideration by the Senate Environment Committee. Mr. McClure currently serves as the Chairman of the National Endangered Species Act Reform Coalition, a broad-based coalition of organizations representing millions of individuals across the United States. It includes rural irrigators, municipalities, farmers, utilities, and many other individuals and businesses that are directly affected by the ESA.
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