July 4, 2005
The New York Times
By FELICITY BARRINGER
WASHINGTON, July 3 - Republican critics of the Endangered Species Act in
Congress have drafted legislation hedging the government's obligation to
take all necessary steps to bring back to robust health any species on the
brink of extinction. The draft envisions more limited government obligations: ensuring that the
status of an endangered plant or animal gets no worse and helping to make it
better.
Representatives of environmental groups who have seen the draft legislation
said that the change, achieved by redefining the act's interpretation of
"conservation," would severely undercut the law.
The draft measure, said Jamie Rappaport Clark, the executive vice president
of Defenders of Wildlife, "takes a wrecking ball to the whole Endangered
Species Act" by changing its mission, disabling enforcement tools and
loosening controls on agencies like the Forest Service and the Army Corps of
Engineers.
But Jim Sims, the executive vice president of Partnership for the West, a
group representing Western ranchers, farmers and industries, said that the
draft has a "common-sense" emphasis on incremental improvements that are
achievable, rather than on long-term recovery that may take decades. "The
aspirational change is necessary," he said. "It's more important to
incrementally improve the species' health as much as we can rather than set
the bar at total and complete recovery, and nothing else."
The draft legislation, prepared by the Republican staff of the House
Resources Committee, also narrows the law's reach, potentially exempting
many federal actions that are now subject to review. In addition, it
requires that the authority to list subgroups of a species of fish or
wildlife as endangered be used "only sparingly." The draft would
automatically take the Endangered Species Act off the books in 2015.
Richard W. Pombo, Republican of California and chairman of the House
Resources Committee, has long been a critic of the Endangered Species Act,
although in recent months he has spoken more favorably of its goals, and
indicated that his revisions would make them more achievable.
The draft legislation was given to The New York Times by a lawmaker opposed
to its provisions, who requested anonymity because the legislation had not
yet been introduced. It has been circulating among interest groups focused
on the issue, which tends to pit environmental groups against a loose
coalition of Western ranchers, farmers and business interests. Most
lobbyists believe that the committee's legislation will provide the
framework for rewriting and reauthorizing the act.
The law has been a magnet for controversy since its passage in 1973. It is
credited with playing a major role in preventing the extinction of hundreds
of species of plants, insects, animals and birds in the United States.
Nonetheless, only a handful of the more than 1,200 species listed over the
years have recovered sufficiently to permit their removal from the list.
The law, as interpreted by a series of federal judges in the past
quarter-century, has been instrumental in blocking dam construction, ending
most logging in the old-growth forests of the Pacific Northwest, overturning
state or regional decisions on the allocation of scarce western water, and
preventing some development on public and private land.
Over the past decade, efforts to rewrite the law failed to pass the House or
were blocked by Senate Republicans, but Mr. Pombo said in a recent interview
that he believed he could forge a consensus and win passage of the bill,
given Republican gains in the House and the Senate in the last election.
Some of his supporters are not as sure. But Mr. Sims, of Partnership for the
West, is not among them. "The prospects for some updating of the Endangered
Species Act are very high in this Congress," he said.
"I think the chairman has a very reasonable marker out there with this
draft," Mr. Sims added. "It's not too far to the left, not too far to the
right. A number of my members don't think this goes far enough."
Environmental groups are gearing up their own campaign in opposition to the
legislation as currently drafted.
They may find unusual allies in property-rights advocates who have focused
their criticism on the bill's requirement that the government designate, and
potentially restrict the use of, territory that is essential to a species'
recovery. In a June 16 letter to Mr. Pombo, representatives of groups
including the Competitive Enterprise Institute, Americans for Tax Reform and
Gun Owners of America urged that the bill ensure that all property owners be
compensated if their land values drop.
The draft legislation permits compensation only when a property owner shows
that a government action diminishes a property's value by at least 50
percent.
On the issue of what constitutes the "best available science" for making and
supporting decisions under the law, the draft measure takes the unusual step
of giving one scientific method preference over another. It calls for
"empirical data" - which can be hard to obtain when a species's numbers are
small and scattered - to be used when possible. More common currently are
studies based on statistical models of a species's number, range and
viability.
The draft legislation also sets new restrictions for mapping the territory
considered essential for the recovery of an endangered species. It would
limit such territory, called "critical habitat," to areas currently occupied
by the species; the law now allows for the inclusion of a larger portion of
the species's historic range. In the new proposal, expansion of the current
range is possible only if that range is inadequate to prevent the species's
extinction.
"It shortchanges habitat protection," said Ms. Clark of Defenders of
Wildlife. "And habitat destruction is the primary reason for most species
becoming endangered." She added that the law "places almost overwhelming
restrictions on sound science."
Mr. Sims, in turn, argued that some of the law's proponents care more about
keeping land unused than ending threats of extinction. "This is the
Endangered Species Act," he said. "I would argue that a great majority of
the American people believe that a focus on efforts to recover a species are
more important than efforts to lock up land.