Whittled Down, Endangered Species Act Continues to Be Chipped Away
The Endangered Species Act is under attack. A number of Congress members have introduced legislation designed to chip away at the law, which is the bedrock of wildlife protections in the United States. While it's unlikely that any of this legislation will become law—thanks to the “green line” that still exists in the Senate—the proposals are nevertheless alarming, as they illustrate some representatives’ eagerness to promote human interests over the needs of other species, even if that means extinction.
President Nixon signed the Endangered Species Act into law a few days after Christmas in 1973. At the time, the idea of using federal law to protect threatened species was uncontroversial, and the legislation received bipartisan support. Only four legislators in the House of Representatives voted against the bill. The law establishes standards for protecting threatened animals and plants based on their risk of extinction. It’s also an enforcement tool to halt development and human encroachment on natural habitats, with the ultimate goal of protecting biodiversity.
In many cases, the law has worked as intended. The Endangered Species Act was an essential tool for the comebacks of bald eagles, peregrine falcons, southern sea otters, humpback whales, and green turtles.
Over the years, however, amendments and exemptions have blunted the ESA’s effectiveness. In 1982, Congress amended the act to include what are called “Habitat Conservation Plans,” which permit private landowners and non-federal-land managers to begin development within endangered-species habitats. While on the surface, habitat-conservation plans look innocent enough—and no doubt are disdained by many developers—they have actually undermined the intent of the law and made the ESA reactive. The original idea of “do no harm” became “let’s try to minimize harm as best we can.”
Now, several bills to weaken the ESA are moving through the House of Representatives. In October 2017, Utah representative Bob Bishop, the Republican chair of the Natural Resources Committee, advanced a number of them through the committee in an attempt to “modernize” the law. But don’t be fooled: This isn’t about “modernization” or “reform.” These bills would make the ESA into a shadow of its former self.
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H.R. 717, introduced by Texas representative Pete Olson, a Republican, amends the ESA so that federal wildlife managers will have to consider economic factors as one of the primary criteria when deciding whether to accept or deny listing a new species or designating critical habitat. The bill also authorizes the U.S. Fish and Wildlife Service and the National Marine Fisheries Service “to prioritize petitions to list a species as endangered or threatened under ESA at their discretion, as opposed to the current order in which a petition was received.” Such a rule would make it possible for a listing petition to slip into a kind of bureaucratic limbo.
Introduced by Washington representative Dan Newhouse, a Republican,
H.R. 1274 amends the ESA to prioritize state-collected data that uses the “best available scientific and commercial data when reviewing the status of the species.” But ESA listings already rely on the best available evidence, and one of the strengths of the law is that its listings are backed by sound science, supported largely through federal funds. This “reform” bill is really a smoke screen. The problem with state agency data is that it may be used for several different reasons, including development and city planning, unrelated to species protection.
H.R. 3131, introduced by Michigan representative Bill Huizenga, a Republican, would replace the standard for recovering attorney’s fees under ESA suits. It also caps attorneys' fees for successful citizen plaintiffs. Environmental litigation is expensive—and fortunately the ESA includes a provision that allows individual citizens and conservation to recover attorney fees, even if they fail to win their case in court. This provision makes it possible for public interest groups to work on behalf of endangered species (which obviously have no money). Without the attorney fees provision, a judicial hearing would be less likely for many claimants.
H.R. 424, introduced by Minnesota representative Collin Peterson, a Democrat, permanently removes ESA protections for gray wolves in Wyoming, Wisconsin, Michigan, and Minnesota, and portions of North Dakota, South Dakota, Iowa, Illinois, Indiana, and Ohio. It would also prohibit judicial review of the removal, essentially allowing Congress to make the final decision on this species, as opposed to scientific review.
The current version of the farm bill includes three provisions that could drastically harm threatened species.
Sections 9111 and 9114 of the proposed farm bill would change the rules governing how the EPA regulates some pesticides—essentially allowing pesticides to be used without considering the harms posed to endangered species, as long as actors are in compliance with the pesticide label. “It’s currently the biggest threat to the ESA,” says the Sierra Club national policy associate Jordan Giaconia. “It circumvents the [ESA] and basically doesn’t hold anyone accountable.” The proposed pesticide exemption contrasts from decisions made a few decades ago, when one of the great