ESA Challenged in Congress and Supreme Court

Liberty Matters News Service

7/29/04

Washington, D.C. - The House Resource Committee approved two bills to reform the Endangered Species Act, reform that has languished since 1993.

The committee voted 28-14 in favor of Rep. Dennis Cardoza's (D-CA) bill, H. R. 2933, to improve the method by which critical habitat is determined.

The bill would require critical habitat designation confined to areas where the subject species actually resides.

"It is only logical to look at occupied areas first. The way to determine is with a field survey, not some wild-ass guess," observed Chairman Richard Pombo, (R-CA).

The second bill, H.R. 1662, introduced by Rep. Greg Walden (R-WA), requires "sound science as the basis for determining the threatened or endangered status of a species as well as requiring field-tested and peer-reviewed data before any listing can be considered.

Rep. Nick Rahall, a Republican from Virginia, argued the current requirement of "best available data" should be retained.

Rep. Billy Tauzin (D-LA) shot back, "I love the acronym of the current law, best available data, BAD." Recognizing the difficulty of any legislative fix of the ESA, the American Land Foundation is funding a lawsuit directed at the "Take" provision of the ESA and challenging it's constitutionality to regulate non-commercial species on private property.

The suit is now pending in the U.S. Supreme Court with national support from dozens of foundations and organizations.

RELATED STORY:

Divided House committee advances ESA reform bills

Environment & Energy Daily
Allison A. Freeman, Environment & Energy Daily reporter

July 22, 2004
The House Resources Committee passed two bills yesterday that would alter controversial areas of the Endangered Species Act, including critical habitat designations and the required science for listing of species.

In a vote mostly divided along party lines, the committee voted 28-14 to approve H.R. 2933, Rep. Dennis Cardoza's (D-Calif.) critical habitat reform measure, and 26-15 in favor of H.R. 1662, a "sound science" bill from Rep. Greg Walden (R-Ore.).

Backers of the legislation said the bills would streamline and modernize a broken act that has been characterized more by litigation than by actually recovering species. Critics of the reform measures claimed they would weaken ESA, potentially placing species at greater risk, and further cloud the legal quagmire that has surrounded sections of the act.

Overall, the votes came as a victory for Committee Chairman Richard Pombo (R-Calif.), who had targeted the two bills as the standard bearers for ESA reform, his top priority this session. But with only four Democrats voting in favor of the Walden bill and six backing the Cardoza proposal, the measures face a rocky road to further passage.

At the beginning of the markup yesterday, Pombo said he would hold out hope that Democrats and Republicans could work out their differences before the bills head to the floor and pass them on the suspension calendar. But in an interview after the hearing, Pombo said the bills as they stand right now would be "too big" and contentious to bring to the suspension calendar.

"My hope is we can work out parts of the bill in dispute," Pombo said.

So far, those negotiations have not been completely successful. Democratic and Republican staffers said efforts were made on both sides of the aisle to iron out differences before the markup, but opposing sides were not able to reach complete consensus.

"We came close, but no cigar," said Resources Committee ranking member Nick Rahall (D-W.Va.).

Critical habitat deadlines set, requirements dropped

The Cardoza bill aims to further define the critical habitat designation process, altering the deadlines for habitat and excluding land that is involved in any other federal, state or local habitat conservation plan from critical habitat consideration. The legislation also gives more weight to landowners and state and local governments in the decisionmaking process.

ESA's critical habitat requirements have been a source of contention and lawsuits for years. The act mandates designation of critical habitat -- an area deemed essential for a species' survival and recovery -- for almost all federally listed species.

But FWS rarely designates critical habitat when it lists a species. Current and Clinton-era FWS officials have said that in 30 years of implementing ESA, they have found little to no additional protection from the designation.

Environmental groups maintain habitat is crucial for species health and have frequently sued FWS to force the designations. Once habitat proposals are made, they often meet more lawsuits from industry groups, which have dragged FWS back into court for allegedly not weighing economic effects adequately.

The Cardoza bill gives landowners and state and local governments a ticket into the process from the beginning, requiring FWS to take into account data from those groups, including local land use maps. And economic analysis would be completed before, not after, the critical habitat designation.

"The more data the Service obtains, the better informed the decision," Cardoza said. Environmental groups opposed to the bill respond that the requirements would further slog the process.

The bill also details that the critical habitat itself must be within areas where field survey data has shown existence of the species and must include physical and biological features that are necessary to avoid jeopardizing the species' continued existence.

"It is only logical to look at occupied areas first. The way to determine is with field surveys, not some wild-ass guess," said Pombo, arguing FWS has made past habitat designations, including for the red-legged frog, without such data.

Cardoza successfully offered a substitute amendment to his previous version of the bill that met at least one concern of critics, setting specific deadlines for the critical habitat designations. Previously, the bill had said critical habitat should be completed with species recovery plans but did not mandate when, which critics said would essentially leave species without either protection for years.

The measure now requires the Fish and Wildlife Service to designate critical habitat within one year of the recovery plan or three years after the final listing of the species, whichever comes first.

Nevertheless, Rahall said negotiations for full support of the Cardoza bill largely broke down over one word: practicable. The Cardoza measure requires the secretary of the Interior to designate critical habitat when it is "practicable, prudent and determinable."

Rahall and other critics said use of the word "practicable" might give too much legal leeway for the Interior Department to rule out critical habitat in tight budgets or other circumstances.

"What is practicable to me might not be practicable to the secretary of the Interior on a bad hair day," Rahall said.

"Frankly, I am ashamed that in this period of extinction, we are weakening out ability to address the problem," said Rep. Jay Inslee (D-Wash.).

But Pombo said "practicable" -- used nine times in ESA, as well as in the National Environmental Policy Act and other legislation -- should not put the proposals back in the court room.

"I'm a little mystified as to why this word has become such a hang up in this legislation," Pombo said.

The committee turned down 14-30 a substitute amendment from Rahall that would have set a higher standard for critical habitat, requiring the habitat in all cases unless it would "preclude conservation of the species" rather than just to keep the species from jeopardy.

The panel accepted by voice vote the only other amendment, from Rep. Joe Baca (D-Calif.), which includes Indian tribes' plans among the state and federal habitat plans that FWS can accept as an alternative to critical habitat.

'Sound science' measure pushes through

The Walden "sound science" measure made it through the committee with just one amendment proposal, a substitute amendment from Walden. But the bill did meet some contention, with debate on the measure stretching on for over an hour.

The Walden bill would require the Fish and Wildlife Service and the National Marine Fisheries Service to give greater weight to field-tested and peer-reviewed data before listing a species under ESA. Sen. Gordon Smith

(R-Ore.) has introduced a companion bill in the Senate.

The legislation would require agencies to gather more information before writing a recovery plan for each proposed species. The substitute would set minimum standards for scientific or commercial data, requiring it to include some field-survey data and give greater weight to field work that has been peer-reviewed.

Walden's substitute amendment also mandates consultation with a state's governor.

"Sound science is kind of like pornography, you know it when you see it," said Rahall in criticizing the bill. He said ESA's current requirement for "best available data" is more appropriate.

Rep. Billy Tauzin (R-La.) countered that the best available data requirement is no better.

"I love the acronym of the current law, best available data, BAD," Tauzin said. "The best available data is often bad. We have to rely on the worst data, just because it is available to us."

The Cardoza measure also requires the Interior secretary to create a peer review board of three individuals from a list of qualified individuals from the National Academy of Sciences to weigh in on the designation.

Critics of the bill said the panel could overly politicize the designations.

Representatives backing the bill said Interior has wrongly estimated species too many times in the past. Walden proposed the bill partially in response to conflicting data Interior released on salmon recovery in the Klamath basin. Tauzin said federal alligator reproduction rates were off by 300 percent. And Rep. Stephanie Herseth (D-S.D.) complained that the black tailed prairie dog was found to be endangered one year and plentiful the next.

Despite its support in committee, even one of the bill's backers said it could see a rough future. "I doubt it will fly through Congress any faster than anything else right now," Tauzin said.