The newly empowered Republican majority on Capitol Hill will grease the skids for plenty of legislation that's sure to gall environmentalists and delight developers, but the most galling and delighting of all could be sweeping changes to the 30-year-old Endangered Species Act.
Business leaders, top Bush officials and many Republicans in Congress have been arguing for the past four years, if not longer, that this cornerstone environmental law is outdated and ineffective, in particular its critical-habitat provision, which constrains development in certain biologically sensitive areas deemed necessary to species rehabilitation.
The top priority next year for the House Resources Committee, chaired by Rep. Richard Pombo, R-Calif., will be to "completely revamp this skewed ... and broken [critical-habitat] provision that offers little if anything to the effort of species recovery," said committee spokesperson Brian Kennedy.
Another focus, according to Kennedy, will be a proposal that would require government data related to listing and rehabilitating endangered species to be peer reviewed by outside scientific panels, with panelists selected by the interior secretary. Though currently panels are not mandated, they are convened regularly by biologists within the Fish and Wildlife Service. Environmentalists argue that the peer-review process could be used as an obstacle to species listing, particularly if panel members are appointed by political (rather than scientific) officials who might favor a more development-friendly lineup.
Kennedy believes the prospects for reform are "frankly looking very good," despite failed attempts in the past to rewrite the critical-habitat provision: "Not only has the makeup of the House and Senate changed for the better, there's consensus that the law needs to be revamped ... We're going to capitalize on it."
The House Resources Committee in July OK'd the Critical Habitat Reform Act, introduced by Rep. Dennis Cardoza D-Calif., but for scheduling reasons the bill never made it from there to a floor vote in the full House. Cardoza is among a number of pro-development Democrats who contribute to the growing "consensus" on ESA reform to which Kennedy referred. His bill proposed much of what Pombo and other Republicans want, and will likely be the boilerplate for critical-habitat reforms going forward. It shifts the deadline for designating critical habitat from the time when a species is listed to the time when the recovery plan is put in place -- a reasonable notion, enviros acknowledge, except that it could enable the DOI to indefinitely stall the process of designating habitat.
Cardoza's legislation would also limit the size of necessary critical habitat to the amount of territory currently inhabited by an ailing species, while enviros argue that extending the habitat is critical to the rehabilitation process. "Habitat loss and destruction is the No. 1 reason why species are imperiled," said Brian Nowicki, conservation biologist at the Center for Biological Diversity. "Clearly, if a species is close to extinction, it's occupying a habitat far smaller than it was when it was healthy. How can we expect a species to rebound if we don't give it expanded habitat to do so?"
According to Nowicki, the majority of lawsuits waged over endangered-species protection invoke critical habitat or listing. If the critical-habitat provision were stripped of its teeth as proposed, he said, it would make it very difficult for environmentalists to impose legal checks and balances on endangered-species management.
The Bush administration, which complains of being bogged down in ESA lawsuits, would be all too pleased to curtail the litigation, but enviros say such suits are the only way to ensure that the act is implemented. They point out that the Bush administration has given protection to only 31 new endangered and threatened species -- a trifling few compared with the 521 species listed under President Clinton and the 234 listed under the first President Bush. "Every single species listed under [George W.] Bush has been the result of a court order, petition or settlement," said Nowicki. "There's not a single one they've done proactively."
Kennedy counters that the emphasis should be on how many species are recovered, not how many are listed, and that the listing process is totally flawed given that less than 1 percent of the 1,200-some species listed in the past three decades have been recovered and de-listed. "It's like we're checking [patients] in willy-nilly but we're not checking them out. It's totally dysfunctional. We're heading toward an implosion in the [ESA] system."
Enviros dismiss this line of reasoning. "This is a preposterous complaint," said Nowicki. "No scientist will tell you that these species on the brink of extinction can be turned around on a dime. It's only reasonable to assume that it will take 15, 20 years at least to bring a species back from the edge." Another common complaint about the ESA is the burden it places on private landowners. Some 75 percent or more of listed species are believed to have habitat on privately owned land, which Kennedy says has led to the "Shoot, shovel and shut up" phenomenon, where landowners take steps to get rid of an endangered species on their land or manage their land so it's not habitable by endangered species -- that way they avoid getting regulated and penalized. Herein lies the basis for the GOP argument that there should be voluntary, incentive-based programs that encourage landowners to protect species by giving them federal grants to preserve habitat, instead of slapping them with regulations and costly lawsuits. In fact, such ideas go back further than the Bush administration. Clinton-era Interior Secretary Bruce Babbitt was a strong supporter of landowner incentives, as well as revamping the critical-habitat program. To its credit, the Bush administration has increased the budget for such incentive-based programs more than fourfold, from roughly $28 million in 2000 to roughly $121 million in 2004.
Environmentalists applaud these efforts, but argue that the carrot cannot be offered without wielding the stick. "Their logic for removing penalties is hopelessly bogus," said Brent Plater, staff attorney at the Center for Biological Diversity. "It's like saying we shouldn't regulate child molesters because they'll continue to do horrible deeds in darker shadows. Instead we should reward them for not doing crimes."
Still, Nowicki and Plater agree that the ESA has some problem areas that could use improvement, but not the kinds of drastic fixes GOP leaders are pushing for. For example, they'd endorse a proposal to allow critical-habitat designation to occur after a recovery plan is in place, but only so long as it included mandatory deadlines within a reasonable timeframe.
Unfortunately for enviros, Republican leaders of the 109th Congress don't seem too interested in compromise. According to Kennedy, critical-habitat and peer-review issues are just the beginning of the reforms they will push for. "These are the areas where we have most consensus for change, [but] they will be starting points for a bigger and broader discussion" on revamping ESA, he said. Other priorities will include increasing the role of states in endangered-species management, a subject that troubles enviros because species habitat often straddles state borders.
Plater worries that eventually the whole act will be dismantled: "There is a very strong push from developers to get Congress to repeal the Endangered Species Act, one piece at a time," he said. "This is a make-or-break moment for the environmental movement. If [reformers] are successful, everything I've dedicated my life to protect will be lost."