There's been much wailing and gnashing of teeth in the environmental community since Rep. Richard Pombo, R-Calif., pushed his overhaul of the Endangered Species Act through the House of Representatives last week. All eyes are now on the Senate to see whether Pombo's bill -- described as "so toxic it's radioactive" by Jamie Rappaport Clark, who oversaw implementation of the ESA during the Clinton administration -- will make it through that august body and onto the desk of President Bush, who's indicated his support.
Despite assumptions that the Senate -- the more deliberative, and generally more eco-friendly, chamber of Congress -- would block an initiative so controversial, enviros worry that Pombo is harrowingly close to getting his way. "I can't remember a time when any major environmental statute was under greater threat," said John Kostyack, senior counsel at the National Wildlife Federation.
Pombo, a former rancher who once famously (and fraudulently) claimed that his family farm was hobbled financially because it was designated as critical habitat for the endangered kit fox, has been trying to dismantle the ESA for more than 12 years. His bill is designed to wipe out the critical-habitat protections esteemed by many conservationists, thereby making it impossible for the government to prohibit harmful projects on lands deemed necessary to the recovery of imperiled species.
In a big coup for property-rights activists, the legislation would also require the feds to pay landowners for lost profits if the presence of an endangered species limits their development options. Because the U.S. Fish and Wildlife Service lacks funding to make such payments, this could effectively eliminate regulatory restrictions on commercial developers, according to critics.
"It gives developers the right to say to the government, 'You have two options: Either grant me a permit to destroy sensitive habitat, or pay me market value not to,'" said Patrick Parenteau, director of the Environmental Law Clinic at Vermont Law School.
The measure could actually encourage more development plans for sensitive habitat, according to Erich Zimmermann, senior policy analyst at the nonpartisan group Taxpayers for Common Sense. "Pombo's bill creates a perverse incentive for landowners to come up with a plan to develop on the most biologically sensitive areas of their property, simply so that they can cash in on a government rebate." The bill is so rife with loopholes, said Zimmermann, that "there's nothing in it that would stop landowners from collecting multiple times on proposals for species-threatening projects on the same piece of property."
Also of grave concern to critics is a provision that would remove restrictions on the use of pesticides in biologically sensitive areas for five years, including chemicals that have been linked to the declines of Pacific salmon, sea turtles, and other aquatic species. The bill would also invest political appointees with greater power to make decisions about species protections. And it would limit the time period for government evaluation of land-use proposals to 180 days (a blink of an eye in the world of federal bureaucracy), with landowners getting de facto permission to proceed with development plans if they don't receive a response within that time frame.
"We've seen a lot of attacks on environmental laws in the past five years, but most have been piecemeal -- a waiver here, an exemption there," Kostyack said. "What we've not seen since we enacted this cornerstone body of laws three decades ago is an attempt at a full-frontal dismantling of a statute -- and one with unnervingly strong chances of victory, at that."
Pombo touts his bill as an effort to enhance species recovery, not weaken it. His office did not respond to Muckraker's request for comment, but last week on the House floor he summed up his philosophy by saying, "We protect private property owners. That is what leads to recovery." He says his bill is needed because both sides are unhappy with the status quo: "[E]verybody [is] saying that there is problems with the law and we have to fix it."
Many in the environmental community concur that the 32-year-old ESA is in need of a tune-up. "It's way overdue -- everybody agrees that it needs to be fixed," said Clark, who now serves as executive vice president of Defenders of Wildlife.
Although the act has aided some species such as the grizzly bear, gray wolf, and bald eagle, conservationists are anxious to improve the pace of recovery. Many argue that the habitat designation and recovery-plan processes need to be fine-tuned, and that dwindling species need to be listed earlier, before their numbers have depleted to the point that they take decades or centuries to recover.
There is also widespread agreement that cooperative, incentive-based programs could improve land-management practices, restore habitat, and head off the listing of further endangered species -- programs that would, for instance, provide technical assistance and funds to help landowners control invasive species. "There's plenty of evidence that a voluntary, incentive-based program can be successful," Parenteau said. "But as a supplement -- not an alternative -- to the regulatory framework at the statute's core."
Pombo's bill includes some such incentive programs, but critics say they would be funded inadequately under his legislation, as money would be siphoned away to property-compensation payments. And they don't care for his approach to their other concerns either.
More to enviros' liking is a rival bill offered up by Reps. George Miller, D-Calif., and Sherwood Boehlert, R-N.Y., which proposes ramping up cooperative, incentive-based programs, but omits some of the more controversial provisions in Pombo's version, maintains key components of the critical-habitat provision, and keeps the pesticide restrictions intact. It lost narrowly in a 216-206 vote; Pombo's victory vote was 229-193.
The Boehlert-Miller bill did better than expected, though, and contains some proposals that Sen. Lincoln Chafee, R-R.I., chair of the Senate Fisheries, Wildlife, and Water Subcommittee, is considering incorporating into an ESA-update bill, according to Christy Plumer, a staffer for the subcommittee. Chafee, who has a strong environmental record, is under pressure from GOP leaders to come out with such a bill. Plumer said the senator "has several concerns about the [Pombo] bill -- anything he puts together would look decidedly different." She said Chafee is now holding hearings and listening to stakeholders, and does not expect to begin drafting a bill in earnest until early next year.
But Chafee's good intentions don't assuage the fears of environmentalists. "Even if the Senate passed the best bill imaginable, it's essentially dead on arrival in conference," Clark said. She believes that negotiations between the House and the Senate to reach a compromise on the bill could result in something far closer to Pombo's vision than Chafee's, particularly because the lead negotiator on the Senate side would be Sen. James Inhofe, R-Okla., chair of the Senate Environment Committee and no friend to enviros.
Whether or not Chafee offers up a bill, Sen. Mike Crapo of Idaho, a Republican member of the Agriculture Committee, plans to unveil his own, possibly before the end of the year, he said yesterday on E&E TV. "I think the House bill is a very good bill," he said. "My objective here is to make sure that we get a bill that has as much of those reforms that the House has and maybe even some more that we can get consensus on through the Senate."
According to Parenteau, the best enviros can hope for is that the pressing issues of Katrina response, the war in Iraq, and consideration of a new Supreme Court nominee will make ESA reform a low priority in the Senate, and neither Chafee nor Crapo will find time to hold hearings and introduce bills in the coming year. "It's a sad state of affairs that our best-case scenario is essentially that this thing will be pushed to the back burner," he said.