Powerful Lawmaker Who Wants to 'Invalidate'
by Darryl Fears
The congressman who said he "would love to invalidate" the Endangered Species Act is closing in on his goal.
Rep. Rob Bishop, R-Utah, recently shepherded five bills out of the Natural Resources Committee he chairs that would dismantle the law piece by piece. Many Republicans on the panel say the proposals are necessary changes that would modernize the 1973 law. Democrats and conservationists say the bills would whittle away the law's ability to save wildlife from extinction.
One measure would force the federal government to consider the economic impact of saving a species rather than make a purely scientific call. Another would require the U.S. Fish and Wildlife Service, which administers the act along with the National Oceanic and Atmospheric Administration, to defer to data collected by states as the "best scientific and commercial data available," although state funding related to the act accounts for a small fraction of that supported by the federal government.
Under a third proposal, citizens and conservation groups would be stripped of a powerful tool that allows them to file court claims against the government when they believe its protections fall short. Among other actions, the remaining bills would also remove protections for gray wolves in Midwestern states and block courts from ruling on the validity of the government's decisions.
The legislation is setting up a titanic clash over a law that forms the foundation of American wildlife protection and has been copied around the world.
"This will be a battle royal," said Bob Dreher, vice president for conservation programs at Defenders of Wildlife, a nonprofit group in Washington, D.C. "You're going to see a strong, strong movement opposing cuts to the ESA. I don't want to sound overly confident or cocky that we're going to defeat this. It's going to be the fight of my conservation career."
Unlike earlier GOP attempts to weaken the act, Bishop is poised to realize his ambition because of Republicans' control of both chambers of Congress and the White House. A Senate committee that previously held hearings on modernizing the act is preparing companion legislation, and a president who favors oil-and-gas development on federal land is more likely to sign it into law.
Bishop, who declined requests to comment for this story, exuded confidence about the bills' prospects before the committee acted in July. "Hopefully, working with our colleagues in the Senate and the administration, we can lay a foundation for ESA reform that will do us well," he said.
All of the measures, approved almost completely along party-line votes Oct. 4, are awaiting consideration by the full House.
Their passage would mark Bishop's most significant legislative victory since the former high school teacher and debate coach entered politics in Utah, where he served as a charismatic leader of the state Republican Party and co-founded the Western States Coalition.The eight-term congressman has long been an opponent of the law, which is credited with saving the bald eagle, humpback whale, grizzly bear, California condor and the Florida manatee.
"It has never been used for the rehabilitation of species. It's been used for control of the land," Bishop said this year. "We've missed the entire purpose of the Endangered Species Act. It has been hijacked."
Bishop's disdain was clear in the hearings, Democrats say. On witness panels, they charge, farmers, dam operators, state wildlife managers and others opposed to the act got their say about its supposed shortcomings, without comparable opportunities for scientific and federal government experts to check those claims. The Interior Department even barred Fish and Wildlife staff members from meeting with the minority caucus' staff members as they attempted to gather information for hearing preparations, according to lawmakers such as Rep. Raúl M. Grijalva of Arizona.
"The bias and the setup begins at the hearing," said Grijalva, the Natural Resources Committee's ranking Democrat. "We get one witness, they get three or four, and the drumbeat begins with the onerous things that are wrong with the act: It's too cumbersome, it allows too many radical lawsuits, the states can do a better job, let them make the scientific and biological opinion of when wildlife should be listed."
The law was essentially 73 years in the making. It followed the Lacey Act of 1900 that was passed to conserve wildlife after carrier pigeons that once filled America's skies went extinct and bison nearly disappeared. Other conservation acts that preceded it were the Migratory Bird Treaty of 1929 and Endangered Species Preservation Act of 1966.
Seven years later, that preservation act was strengthened to become the Endangered Species Act. The new legislation was approved by overwhelming and bipartisan margins -- 355 to 4 in the House and 92 to 0 in the Senate. President Richard Nixon made it official with his signature that December.
The law gives the federal government control over regulating use of land that serves as habitat for endangered species, with assistance from states. It specifies that decisions should be based on only science, without consideration of the economic effect. The law also helps people sue for the protection of animals or plants through the Equal Access to Justice Act, which pays the attorney fees of individuals and organizations that take the government to court and win.
Today, more than 2,000 species are listed as endangered or threatened, including Loggerhead sea turtles in parts of the Atlantic Ocean, whooping cranes in the West and the Texas golden gladecress.
Over time, some lawmakers began to argue against the law's species management and protection. Protecting animals such as the spotted owl and blue whale cordoned off enormous chunks of forest, ocean and desert. Private landowners were sometimes restricted or blocked from certain activities on their property, from logging and oil or gas drilling to cattle grazing and housing development.
This year, Sen. James M. Inhofe, R-Okla., noted that of the total species listed since 1973, only about 3 percent have been delisted. "As a doctor, if I admit 100 patients to the hospital and only three recover enough to be discharged, I would deserve to lose my medical license," he said.
Peter S. Alagona, author of "After the Grizzly: Endangered Species and the Politics of Place in Southern California," says some concerns about the law have never been sufficiently addressed. He thinks it is due for "an update," but he disagrees with what he calls Republicans' "false pretenses."
"If the complaint is (that) the recovery of a species takes too long, the question is for whom," he said. The agencies responsible for the effort "have lacked resources" to address critical issues, "and part of the reason is they have been starved by the politicians who are now claiming it takes too long."
GOP lawmakers argue that states better understand species within their borders and should take a leading role in protecting them. But Alagona and others say animal populations have withered over the decades because of neglect by states.
A 2016 study by the University of California at Irvine showed that state spending to protect endangered and threatened wildlife over the 10 years ending in 2014 was "negligible" compared with federal spending -- a collective $57 million vs. more than $1.1 billion.
Most state regulations cover fewer species than the federal government does, and 17 states do not bother to protect plants. West Virginia and Wyoming have no legislation protecting species, the study said, although Wyoming allocates more than most states on species management. Half of the states do not require any scientific evidence as a basis to list species or remove them.
Conservationists are worried about the ESA bills now before the House, but they are especially concerned about the proposal that would require federal wildlife officials to consider the "likelihood of significant, cumulative economic effects" of listing an animal or plant. Its author, Rep. Pete Olson, R-Texas, who has characterized the act as "a political weapon for extreme environmentalists," said potential revenue and job losses as a consequence of species protection can no longer be ignored.
Olson's bill would demolish a tenet that historically set U.S. species protections apart from those of other countries: Science should be a much stronger factor than money.
Dan Ashe, a Fish and Wildlife director under the Obama administration who is now president and chief executive of the Association of Zoos & Aquariums, warns that putting economic interests first would be a serious blow to the law. The 2008 protection of polar bears under the George W. Bush administration, he said, is just one example of action that probably would not have happened.
"What a hard decision that was," Ashe said. "If (agency officials) were required to consider the economic impact of the polar bear listing, would they have listed it? I think not."
The drive to weaken the Endangered Species Act is coming at a crucial time, Ashe said. "Wide scientific consensus is that we're living amid another great extinction crisis -- people are calling it the sixth mass extinction," he said. "Looking at these five bills, I see no sign that there's a concern for improving the implementation of the Endangered Species Act."
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