Will Republicans Provide Grist for Environmentalists’ Mill? Senate Consideration of New Endangered Species Bill Bad News for Species and People

Environmentalists who have accused the Republican Congress of conspiring with powerful industry groups to protect corporate profits at the expense of the environment may soon have some solid evidence to back up that claim.

Over the next several months, the U.S. Senate could take up an Endangered Species Act (ESA) bill sponsored by Senator Dirk Kempthorne (R-ID) that would reauthorize the ESA for another six years, but fail to address underlying flaws in the law that make it both ineffective in species recovery and an unbearable burden on many small property owners. The bill, the Endangered Species Recovery Act (S. 1180), contains no compensation for property rights losses resulting from application of the ESA — an absolute prerequisite for saving endangered and threatened species. What it does contain, however, are several features favored by big industry.

Since the ESA was enacted in 1973, more than 900 plants and animals have been granted the protection of the ESA, through “endangered” or “threatened” designations. But this protection doesn’t appear to count for much. Only eight species have ever made their way off the endangered and threatened lists. What’s more, the Washington, D.C.-based National Wilderness Institute says not one of the delistings was due to species recovery attributable to the ESA. In a study conducted last year, “Conservation Under the Endangered Species Act: A Promise Broken,” the group found that half the delisted species never should have been listed in the first place, one-quarter were well on their way to recovery even before they were listed and one-quarter owed their recovery to initiatives other than the ESA, such as the ban on the pesticide DDT.

The ESA’s poor track record can be attributed in large part to the fact that the law gives federal authorities sweeping powers to restrict activities on land it deems suitable habitat for endangered or threatened species without requiring the government to pay land owners for any property value losses that result. Because such restrictions often mean huge losses in property values, the current ESA gives land owners every incentive to make their land inhospitable to rare wildlife and plant life. A property owner who owns land with little economic value beyond its standing timber, for example, might rationally decide to cut down all the trees at once rather than risk inviting rare wildlife to and thus government regulation of his or her land. This scenario, which is frequently played out across the nation under current law, represents a serious threat to the very species the ESA is supposed to protect. Unfortunately, Senator Kempthorne’s Endangered Species Recovery Act would do nothing to resolve it.

Small land owners have other reasons to be concerned about the Kempthorne bill. For example, the bill would exempt biological information collected by the government from Freedom of Information Act requirements, allowing federal officials to conceal this data from the public. This provision would make it all but impossible for property owners to challenge the validity of the government’s data and thus difficult to contest even those species listings and recovery plans that are unjustified. The bill would also codify a great deal of unauthorized regulatory authority the Secretary of Interior has claimed for himself in recent years.

Despite the weaknesses the Kempthorne bill, it stands a fair chance of being scheduled for a vote in the Senate this year. This is because powerful industry groups — most notably the Endangered Species Coordinating Council, which represents such timber giants as Georgia Pacific and International Paper — is fighting hard for the bill. They want Kempthorne’s bill because it would codify Habitat Conservation Plans (HCPs). HCPs are extra-legal arrangements between landowners and the federal government that permit use of land for activities that might otherwise be prohibited under the ESA. But HCPs have a catch: In exchange for the government’s concession, landowners must agree to limit their use of all or part of their property to federally-approved activities. The problem with HCPs beyond the fact that they essentially establish federal land use planning and generally favor large land owners over small ones is that they do not exist under current law. Big timber, real estate developers and others who have spent many thousands of man-hours and dollars developing and negotiating HCPs are fast coming to the realization that their HCPs aren’t worth the paper they are written on, and that the federal government could renege on its commitments at any time. That’s why they are pushing for Kempthorne’s ESA bill, regardless of its consequences for small landowners and regardless of its consequences for the environment.

But Republican leaders would be ill-advised to schedule this bill for a vote. Over the past three years, environmentalists have been engaged in a public relations campaign to convince the public that the Republican Congress has been conspiring with industry to “roll back 25 years of environmental progress.” When environmentalists argue that Senator Kempthorne’s Endangered Species Recovery Act will benefit industry at the expense of the environment, this time they will be right. Unlike previous Republican initiatives, there will be no small landowners and no genuine grassroots support for the bill. With control of Congress at stake in this November’s elections, Republicans can’t afford to add additional grist to the environmentalists’ mill.


David Ridenour is vice president of The National Center for Public Policy Research in Washington, D.C. Comments may be sent to [email protected]

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