Endangered Species Act Under Scrutiny

By Beacon Staff

The 40th anniversary of the nation’s bedrock conservation law — the Endangered Species Act — is being met with celebration, appreciation and not surprisingly, renewed conflict.

Last week a group of 13 Republican lawmakers in Congress called for an overhaul of the influential federal law that safeguards imperiled fish, wildlife and plants.

The effort, spearheaded by U.S. Reps. Doc Hastings of Washington and Cynthia Lummis of Wyoming, is centered on “targeted reforms” that would “not only improve the eroding credibility of the Act, but would ensure it is implemented more effectively for species and people.”

Though experts don’t expect the recent attempt to go anywhere, supporters of the ESA warn that the new proposals are an attack that would strip the law of any substance.

The ESA, which President Richard Nixon signed into law in 1973, is credited with fully recovering 31 species, including bald eagles, American alligators and gray whales, and giving additional protections to more than 1,500 others across the nation. In Montana, 12 species including the grizzly bear and whooping crane are protected as endangered or threatened.

Yet Hastings’ report states that only 2 percent of the overall protected species have been recovered despite billions of dollars in federal and state spending, and that the ESA unnecessarily stalls proper land-use and is abused by environmental groups that perpetuate litigation.

Hastings, who chairs the House Natural Resources Committee, and his camp want to hand over more power to states, tribes, local governments and private landowners for species protection and management; curb persistent litigation and encourage settlement reform; increase transparency and prioritization within the ESA with a greater focus on species recovery and delisting; and increase scientific transparency and accountability involving impact studies.

U.S. Rep. Steve Daines, R-Mont., said he supports Hastings’ proposed reforms and agrees that the ESA has created unintended consequences and costs across the U.S.

“What sums it up best for me is the ESA is like an old ranch pickup. It once served a useful purpose but it’s in bad need of repair,” Daines told the Beacon. “It’s 40 years old … I think there’s some areas we can reform.”

Daines said he wants to strike a balance between wildlife protection and economic development.

“I have a passion for the outdoors and ensuring we protect our treasured resources and unique wildlife,” he said. “But I believe we can do that and balance economic developments and common sense use of our lands.”

He continued, “I want to see more Montana-driven solutions and less Washington, D.C. driven policies. If we can put more of the control back to the states, back to Montanans, I think that’s a better direction to head than to put that power and control in D.C.”

Yet others say the latest reforms would strike at the heart of the ESA and effectively dismantle it, and that states like Montana would not have enough resources or funds to properly manage and protect imperiled species.

“Their idea for reforming the ESA is to kill it or gut it completely,” said Don Barry, executive vice president of Defenders of Wildlife, an environmental group.

Barry has been closely tied to the ESA for nearly its entire 40-year lifespan, having spent 19 years in the U.S. Department of Interior as the chief counsel for the U.S. Fish and Wildlife Service, among other posts within environmental agencies. Defenders of Wildlife has been one of the foremost groups to challenge decisions related to the ESA.

He said the Hastings report reflects a false reality and bogus appreciation for conservation.

“Under this bill, if adopted, it would stop completely in the tracks the listing of any new species,” Barry said. “You would not be able to recover any new species and you would basically take away most of the protections for threatened and endangered species.”

He continued, “Time and time again, it’s been proven that unless we have some environmental protections on the landscape we end up with dirtier water, dirtier air and species sliding into extinction.”

Barry said that handing over power to the states would put a sizable burden on agencies that are already short on funds and resources.

He also said that constant litigation stems more as a result of the government not doing its job than environmental groups suing at every turn.

“The Justice Department is not settling if they have a strong case,” Barry said. “These lawsuits end up with the environmental plaintiffs having a strong case to make that the government is not complying with the law.”

Daines sees it differently.

“I think we can strike a balance here. I think that the pendulum has swung too far in the direction of lawyers and litigation and some of these fringe extreme groups that tend to impose their will on the people of Montana,” he said. “Unfortunately it seems like political science is driving these debates instead of sound science and focusing on how do we recover these species.”

Daines said the Hastings reforms would try to get a vote on the House floor as a next step forward.

J.B. Ruhl, a Vanberbilt Law School professor and expert on the ESA, doesn’t expect Hastings’ proposals to survive beyond committee. It’s the latest in a long line of attempts at reforming one of the nation’s environmental cornerstones.

The ESA was last amended in the 1980s and has withstood several similar attempts since then, the last coming a decade ago. But all have been futile, reflecting the ESA’s impressive stature and entrenched support among most Democrats and Republicans.

“There have been several attempts at bipartisan reform of the ESA in the past 15 years. I’m not saying that the motivations aren’t genuine and that there aren’t real issues out there to be debated,” Ruhl said. “But the political reality is when you have the kind of divided Senate that you have, it’s just highly unlikely.”

He added, “It’s a very important law and it has social and economic consequences that are very significant. It’s become a very divisive wall over time.”

RELATED: The Road to Recovery

RELATED: How the Endangered Species Act Changed Everything

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