McClatchy's America

If Congress really wants to fix the Endangered Species Act, it should try these 5 ideas

Three 2-year-old grizzly bears are startled by a female elk as they roam Swan Lake Flats in Yellowstone National Park in 1998.
Three 2-year-old grizzly bears are startled by a female elk as they roam Swan Lake Flats in Yellowstone National Park in 1998. Statesman file

Republicans hope that having both houses of Congress and the White House will allow them to rewrite the most powerful environmental law that exists anywhere in the world.

The House Resources Committee has approved five different bills its members say will modernize the Endangered Species Act, passed in 1973. Critics accurately say the bills would gut the law, which hasn’t had a major rewrite since the 1980s.

The law is a powerful statement in defense of creation that requires the federal government to protect all species, a message that goes all the way back to Noah’s Ark.

The House bills would strip away the right for citizens and environmental groups to sue to enforce the law, would require authorities to consider the economic impacts of listing a species and would defer to state-collected scientific data when making a listing decision. One bill would delist wolves in the Midwest, recognizing what science has shown for years: The wolves have recovered.

The act has legitimate problems: Its processes have become inefficient, poorly funded and mired in litigation, at a time when biologists warn the world could lose 20 percent to 40 percent of its species in the next century.

If Congress is truly interested in repairing it, these five changes would solve many of the problems Western Republicans identify, while conserving our animals, plants and their habitats more efficiently:

1. Turn recovery and authority for issuing habitat conservation planning permits over to the states.

2. Exempt property owners with up to five acres of land from the law.

3. Give federal agencies more flexibility when they assess whether a government action will harm a species.

4. Acknowledge the impacts of climate change.

5. Create a biodiversity trust fund, paid for with a new royalty on minerals from federal lands.

First, some history.

The last time Republicans had the power to pass an endangered species reform bill was in 2005, when House Resources Chairman Richard Pombo, a California rancher, got his one-sided bill out of the House, only to see it stopped in the Senate. Current chairman Rep. Rob Bishop did not help the newer efforts when he said he “would love to invalidate” the law, which has saved the bald eagle, the peregrine falcon, grizzly bears and whooping cranes.

Had Pombo agreed to an amendment offered by supporters of the act, he might have gotten the 2005 bill through the Senate with more changes. But I’m skeptical Bishop is willing to make the compromises necessary or that ESA supporters will be willing to deal.

In 1998, then-Idaho Sen. Dirk Kempthorne wheeled and dealed with Interior Secretary Bruce Babbitt, only to have his reform bill killed by Majority Leader Trent Lott based solely on Mississippi concerns – Lott’s home state.

As long as the main goal of reform is simply to reduce the power of the federal government — not to make the law more effective and efficient for all sides — it is going to be a heavy lift. People love animals, and as the president’s recent intervention on the importation of elephant trophies shows, animal lovers can turn the tide.

But there is frustration that some environmental and animal-rights groups want to keep species on the list as a way to block states’ power to manage them. Congress had to weigh in to delist wolves in the Rocky Mountains long after they had reached their recovery goals. Similar lawsuits have been filed against the decision to delist Yellowstone grizzlies, solely because it will allow the states to open a hunting season.

There also is a recognition that the law is wrapped up in litigation. Most of that comes from a lack of federal funding to consider listings; advise other agencies about actions that could affect wildlife and plants; and write recovery plans or delist species.

The Endangered Species Act works best when it is wielded as a shield, not a sword. Kempthorne’s brilliant observation — that protecting species is cheaper and less restrictive if we act before they need to be listed — should be the watchword of all sides of the debate.

States can get ahead of the game and act to conserve species and their habitat at any time — they don’t have to wait for the threat of listing. Even when listing is a possibility, this approach can work.

That’s what happened with sage grouse.

The Obama administration worked closely with Western governors from both parties to develop a sage grouse plan that protected the sagebrush steppe ecosystem and still allowed ranching, oil and gas development, mining and other development across 11 states. Based on the plan, the U.S. Fish and Wildlife Service decided listing the grouse was not warranted.

The Trump administration is reconsidering the land management plans on which the decision was based. It also reversed a plan to protect 10 million acres of grouse habitat from oil, gas and mineral development. How much current officials weaken the plans, and whether they shield the best habitat from development, will decide whether the grouse eventually is listed or not.

So here’s my plan:

Turn recovery over to the states.

The major criticism of the law is that it doesn’t recover many species. So let’s turn over the recovery process — and perhaps more of the work to designate a species’ critical habitat — to the states or tribes, who have an incentive to recover species faster. This would include authority for issuing habitat conservation planning permits to private landowners.

Exempt property owners with up to 5 acres of land from the law.

Few species’ survival will be decided by such small landowners. If their land is needed for conservation, pay them. All landowners should have incentives to protect species and habitat.

Give officials more flexibility when reviewing actions that might hurt species.

Under the act, federal agencies are required to consult with the Fish and Wildlife Service or NOAA Fisheries about any proposals that may affect a threatened or endangered species. Give the wildlife agencies the option of reporting an “unlikely effect” that doesn’t trigger a more formal and drawn-out consultation process.

Acknowledge climate impacts.

Listing decisions and the priorities they help create take a long time, and the process is totally driven by litigation that results in the “sue and settle” dynamic that critics such as Bishop hate. Put funding and openness into this process, and add a clear guide that shows when a species is likely to go extinct because its habitat is doomed by climate change. This needs to happen earlier and faster.

Currently the Endangered Species Committee (informally, the “God Squad”) is the only body that can allow the federal government to give up on an endangered species. It is made up of administration officials and scientists. I’d weigh its makeup more toward the scientists, and empower the panel to allow federal agencies to pursue a lower standard for species likely to go extinct because of climate change, protecting them “where practicable.”

A biodiversity trust fund.

There is never enough money for states and private landowners to do the kind of conservation that would speed a creature’s recovery. Establish a biodiversity trust fund and pay for it through royalties on hard-rock mining. (This would also require reforms to the Mining Act of 1872.)

Rocky Barker: 208-377-6484, @RockyBarker

About the writer

Rocky Barker is the author of “Saving All the Parts, Reconciling Economics and the Endangered Species Act” (Island Press 1993). He has reported on endangered species in the West and Pacific Northwest for 32 years, including a six-month series on Columbia salmon this year.

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