July 5, 2005
The New York Times
The Endangered Species Act of 1973 is far and away the most controversial of
all the landmark environmental statutes enacted during the Nixon years. It
is especially so among those libertarians and property owners who think that
commercial development is unduly restricted by the mandate to protect not
only plants and animals, but also the habitats essential to their survival.
The law is up for reauthorization again this year, and the pressures to
weaken it are great. There are ways to streamline the law and make it less
litigious that would not come at the expense of its core values and purpose.
Regrettably, the Bush administration is not waiting for this debate to take
place. Since the day they took office, Bush officials have tried to subvert
the law administratively and in the courts. They have slowed the process by
which species are listed as threatened or endangered, cut scientists out of
important wildlife decisions, encouraged and then sided with industry
lawsuits against habitat designation, and tortured the very meaning of the
act to evade its obligations.
The most recent example involves endangered salmon species in the Columbia
and Snake River basins in the Pacific Northwest. These fish have long had
trouble catching a break. A comprehensive recovery plan devised by the
Clinton administration was tossed out by a federal judge, James Redden, who
found the prescriptions too vague and the projected outcomes too
speculative. But the Clinton administration never tried to shirk its lawful
obligation to provide for the recovery of the species by settling, as this
administration has, for the lesser goal of keeping the current rate of
decline from getting any worse.
Nor did it descend to the same depths of casuistry. Among other things, the
National Marine Fisheries Service proposes to include millions of
hatchery-raised fish in its assessments of wild fish - a bit of mathematical
gymnastics that would instantly make endangered wild salmon populations seem
healthier than they are and thus ease the need for protection. No less
preposterous is its argument that it cannot remove the dams on the lower
Snake River - an option the Clinton administration held in reserve in case
all other recovery measures failed - because they are immutable parts of the
landscape, like a mountain.
An angry - indeed, flabbergasted - Judge Redden has now tossed out this plan
as well. For good measure, he has ordered the government to increase the
volume of water spilled over the dams this summer to ease the passage of
young fish to the ocean and thus increase their chances of survival. Given
the dwindling number of wild salmon, he was quite right to do so. The only
downside is that the ruling has inflamed various members of Congress, and
some of them are muttering darkly about legislative retaliation.
This would not be helpful, either for the salmon or for a broader discussion
of the Endangered Species Act. In his recent ruling, Judge Redden invited
all the stakeholders - the dam operators, the developers, the commercial
fishermen and the Indian tribes that depend on salmon for their living - to
get together to devise a common plan.
Any discussion of the law itself should be conducted with comparable
transparency. It is a fundamentally sound statute with wide public support
and a demonstrable record of success. By forcing a better balance between
commerce and nature, it has often constrained human behavior in ways that
lead to a healthier environment for everyone. The law, and our environment,
deserve far better than the guerrilla warfare with which the opponents of
the Endangered Species Act have tried to undermine it.