June 26, 2005
The New York Times
By FELICITY BARRINGER
WASHINGTON, June 22 - More than three decades after the Endangered Species Act gave the federal government tools and a mandate to protect animals, insects and plants threatened with extinction, the landmark law is facing the most intense efforts ever by the White House, Congress, landowners and industry to limit its reach.
More than any time in the law's 32-year history, the obligations it imposes
on government and, indirectly, on landowners are being challenged in the
courts, reworked in the agencies responsible for enforcing it and
re-examined in Congress.
In some cases, the challenges are broad and sweeping, as when the Bush
administration, in a legal battle over the best way to protect endangered
salmon, declared Western dams to be as much a part of the landscape as the
rivers they control. In others, the actions are deep in the realm of
regulatory bureaucracy, as when a White House appointee at the Interior
Department sought to influence scientific recommendations involving the sage
grouse, a bird whose habitat includes areas of likely oil and gas deposits.
Some environmentalists readily concede that the law has long overemphasized
the stick and provided fewer carrots for private interests than it might.
But some of them also fear that the law's defects will be used as a
justification for a wholesale evisceration.
"There's an alignment of the planets of people against the Endangered
Species Act in Congress, in the White House and in the agencies," said Jamie
Rappaport Clark, executive vice president of Defenders of Wildlife, a
lobbying group based in Washington.
On the opposite side, Robert D. Thornton, a lawyer for developers and Indian
tribes in Southern California, has argued for years that the government goes
too far to protect threatened species and curtails people's ability to use
their own land.
"I've raised a child and sent him through college waiting for Congress to
amend the Endangered Species Act," he said. "But I do think that a lot of
forces are joining now."
The Endangered Species Act of 1973 set out a goal that, polls show, is still
widely admired: ensuring that species facing extinction be saved and robust
populations be restored.
Currently 1,264 species are considered threatened or endangered. Some, like
the bighorn sheep of the Southern California mountains, have obvious popular
appeal and a constituency, while others, like the Kretschmarr Cave mold
beetle in South Texas, are an acquired taste.
But in the past 30 years lawsuits from all sides have proliferated. And more
private land, particularly in the West, has been designated critical habitat
for species, potentially subjecting it to federal controls that could limit
construction, logging, fishing and other activities.
A "critical habitat" designation gives the federal government no direct
authority to regulate private land use, but it does require federal agencies
to take the issue into account when making regulatory decisions about
private development.
The conflicts are becoming sharper as the needs of newly recognized
endangered species are interfering more often with the demands of exurban
development.
Western governors, who convened in San Diego last year in a mini-summit on
the act, are also weighing in with Congress, for the most part seeking to
explore new means of species conservation while clarifying - or limiting -
local and state government obligations under the law.
And Representative Richard W. Pombo, the Republican chairman of the House
Resources Committee, whose district near the Central Valley of California
was the epicenter of a battle over the delta smelt, is preparing legislation
that is likely to curb how much land or water can be defined as critical
habitat.
Mr. Pombo, who attended the gathering in San Diego, said in an interview
that there was some common ground on the critical-habitat issue. But, he
added, consensus will be harder to find on proposals he is considering that
would change how the agencies weigh available science.
Even without Congressional rewriting, the federal agencies involved have
taken a different attitude in the past four years, sometimes raising the bar
of scientific proof and giving more weight than before to the economic
impact of Endangered Species Act decisions.
In one instance, a top aide to Craig Manson, the assistant interior
secretary who oversees the Fish and Wildlife Service, edited the scientific
assessment of the sage grouse's status, playing down accounts of its range
and population declines. The edited assessment and the original document
prepared by scientists were sent to an expert panel, which recommended
against listing the grouse as endangered; the Interior Department did not
list it.
In the case of the salmon, a federal district judge in Portland, Ore., last
month rejected the Bush administration's interpretation of its obligation to
endangered fish, including its argument that dams should be considered part
of the landscape.
Noah Greenwald, a biologist with the Center for Biological Diversity, said
the Interior Department under President Bush has been much less aggressive
than under President Bill Clinton in putting species on the endangered list.
Under Mr. Clinton, he said, the Interior Department agreed to place a
species on the list in 88 percent of the instances in which it made a
decision. Under Mr. Bush, the figure is 52 percent, according to Mr.
Greenwald's analysis of federal data.
The Bush administration has expanded on the Clinton administration's
reluctance to delineate critical habitat. The administration includes a
statement in all documents on the subject saying that the designation of
critical habitat "provides little real conservation benefit, is driven by
litigation rather than biology, forces designations to be made before
complete scientific information is available" and "imposes huge social and
economic costs."
Economic analyses, which the law allows for in decisions on territory, are
now the leading reason for reducing the size of species' critical habitat,
according to a report by the National Wildlife Federation.
In 2003, the report says, lands proposed as critical habitat by biologists
were reduced by one-third; 69 percent of those reductions were based on
economic factors, up from fewer than 1 percent in 2001. Territory can also
be removed from proposed critical habitat if higher-ranking officials
believe a species does not need it.
Mr. Manson, the assistant interior secretary, said in an interview that the
interior secretary has discretion to make such decisions, and that
guidelines from the Office of Management and Budget are followed in
performing economic analyses.
The National Wildlife Federation argues that the administration assigns
little economic benefit to habitat designations, to which Mr. Manson
responded: "The National Wildlife Federation and other groups have a
different view of what ought to count as benefits. That's a legitimate
policy difference."
Environmental groups argue that the land-use provisions of the law have been
working, because federal data shows that 68 percent of listed species whose
statuses are known have stable or recovering populations.
Even so, some environmentalists indicate gingerly that some of their number
may have overreached or, more precisely, over-sued.
"Litigation is a hammer, but not every problem is a nail," said Michael
Bean, a co-director of the Center for Conservation Incentives at
Environmental Defense. "The good news about litigation has been that it has
forced the government to take seriously its obligations."
Environmentalists have had considerable success in the courts, most
memorably in 1978, when the Supreme Court blocked - temporarily -
construction of the Tellico Dam in Tennessee to preserve a tiny fish, the
snail darter.
This month, the Supreme Court refused to hear a case challenging enforcement
of the law, in a dispute involving six endangered species of small insects
that live in caves in Texas, including the Kretschmarr Cave mold beetle.
Developers said the property would be worth $60 million if development were
not limited by the Endangered Species Act.
And in the desert around Palm Springs, Calif., the Agua Caliente Band of
Cahuilla Indians is suing the government because more than half the tribe's
31,000 acres fall into an area the Fish and Wildlife Service says is
critical to the conservation of the endangered bighorn sheep. The sheep's
numbers in the area were down to about 280 when they were listed as
endangered in 1998. A recent count put the number above 700.
The tribe says the designation creates "an economic impact of hundreds of
millions of dollars" by complicating plans to develop resort condominiums
and a golf course near tribal land.
There have been compromises on habitats. In hundreds of areas, the various
groups with an interest have cooperated on "habitat conservation plans" to
help species on the brink.
Such plans, like one around Tucson regarding the endangered pygmy owl, have
been promoted by the Clinton and Bush administrations.
But the plans do not tend to flourish where litigation is rife. And Steven
P. Quarles, an industry lawyer with the Washington firm of Crowell & Moring,
said that until there was a legislative compromise that Senate moderates
could support, "what we'll see is a chipping away at the act by federal
rules and guidances from the executive branch, and litigation from both
sides."