Rep. Richard Pombo has been trying to revise the federal Endangered Species Act (ESA) for nearly a decade, having been handed that seemingly Sisyphean task by the GOP leadership shortly after the party took control of Congress in 1994. The Tracy Republican has never made much headway in what he calls an effort to “improve”— critics typically substitute “cripple” or “gut” — one of the nation’s key environmental laws. His 11 previous efforts were stymied either by a certain White House veto or opposition by more moderate Republican members of Congress.
This year, however, the stars seem to have aligned for Pombo, who now chairs the House Resources Committee and has strong support from the Bush Administration and a larger Republican majority in Congress. In September, with startling speed, the House approved Pombo’s 12th ESA rewrite on a 229 to 193 vote, sending the bill to an uncertain fate in the Senate.
Pombo and the Resources Committee began laying the groundwork for the legislation earlier this year, issuing a series of “reports” — typically authored by Pombo or his staff — on the ESA’s alleged shortcomings. He also launched a multi-state road show, conducting field hearings at which invited speakers told tales of ESA-related woe.
After lawmakers returned from their summer recess, Pombo moved swiftly. He introduced the Threatened and Endangered Species Recovery Act (HR 3824) on September 19; the Resources Committee approved the bill four days later. It went to the floor of the House on September 29, with 90 minutes allowed for debate. By the end of business that day, House lawmakers had approved the bill.
The bill Pombo pushed through the House was not as draconian as environmental activists had feared. It would, however, make several significant changes in the 1973 law.
The most far-reaching of these is the elimination of the requirement that the federal government designate critical habitat for a species when it is listed as threatened or endangered. That has long been a Pombo bête noire, a provision he argues is tantamount to an unconstitutional taking of private property. More than 10 years ago, during testimony before a Senate subcommittee, he offered a reason for his antipathy toward that aspect of the ESA: His family land had been stripped of its value when the U.S. Fish and Wildlife Service (USFWS) declared it critical habitat for the San Joaquin kit fox. Inconveniently for Pombo, however, the agency had done no such thing, and he had to backtrack on his personal tale.
But if Pombo has had no direct experience with the ESA’s limitations on private property, plenty of his constituents have. It’s probably not a coincidence, therefore, that the critical-habitat repeal and other provisions in his bill read like a wish list from the agricultural and building industries that play dominant roles in his Central Valley district: a blanket exemption from ESA regulation for pesticide use; a mechanism by which to force the government to pay private landowners for the cost of complying with the ESA or to reimburse them for reductions in property value as a consequence of species protections; and a 180-day deadline for the federal government to respond when a property owner proposes an action that might harm a listed species.
Other provisions less directly tailored to Central Valley interests would allow the secretary of interior to unilaterally decide what scientific data to use in determining a species’ status; authorize the president to suspend all provisions of the ESA in cases involving disasters and national security; and establish an undefined “alternative” to the formal consultation process by which federal agencies are required to check with the appropriate wildlife service before issuing permits.
In his opening statement during the brief floor hearing on HR 3824, Pombo repeated his oft-made assertion that the ESA has a success rate of less than 1%, as only 10 of the nearly 1,300 species listed since the act became law have recovered sufficiently to be removed from the list. Although well-intentioned, the law isn’t working and needs to be fixed, he argued.
“Now we all know it takes time to recover endangered species, but after three decades of implementation, do these sound like the statistics of a successful law? Of course not,” Pombo said.
The bill won plaudits from the National Association of Home Builders, which called it “a common-sense, bipartisan approach to update and improve the law.” The Competitive Enterprise Institute (CEI), a think tank that champions free-market policies and opposes government regulation, was similarly approving, arguing that compensating property owners for species protections is long overdue and will enlist them in the effort to save imperiled wildlife.
“The ESA threatens the constitutional rights of all Americans and has violated the rights of countless thousands of landowners,” said Myron Ebell, CEI director of international environmental policy.
The bill may not win such overwhelming praise in the Senate. Rhode Island Sen. Lincoln Chaffee, a moderate Republican with a green constituency, is working with Sen. Hillary Clinton (D-New York) on a bill that is unlikely to look anything like HR 3824. Chaffee is reportedly worried about the high price tag associated with the landowner compensation provisions in Pombo’s bill, and other senators are likely to share the concern. The Congressional Budget Office estimates compliance with HR 3824 would require nearly doubling the USFWS budget and boost spending by $2.6 billion over four years.
Other critics says Pombo’s bill would eviscerate bedrock environmental protections.
“This bill takes a wrecking ball to our nation’s most important wildlife protection law,” said Kieran Suckling, policy director at the Center for Biological Diversity. That group has had notable success using litigation to force USFWS to designate millions of acres of critical habitat in California for such species as the red-legged frog, peninsular bighorn sheep and arroyo southwestern toad.
The proposed elimination of critical habitat designation has stirred particular outrage because many experts consider habitat loss the primary reason species become threatened with extinction. In an article in the April issue of the journal BioScience, Suckling and two co-authors (conservation biologist Martin Taylor and Cornell law professor Jeffrey Rachlinski) presented an analysis of federal data that found species were more likely to be recovering if critical habitat had been designated. A peer-reviewed article in Ecology Letters in September, written by Timothy Male and Michael Bean at Environmental Defense, found no such correlation, but did conclude that the species showing the most improvement were those that had been listed the longest and had received the most funding for recovery.
U.S. Rep. Richard Pombo, (202) 226-9019.
Center for Biological Diversity, (520) 275-5960.
National Association of Home Builders, (202) 266-8252.