The bald eagle was one of the first species to be protected under the Endangered Species Act. Photo by Don Burkett/Flick

The Republican Plan to Dismantle the Endangered Species Act

The Endangered Species Act is a watershed environmental statute, but some members of Congress want it gone.

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Sep 3 2015, 12:00pm

The bald eagle was one of the first species to be protected under the Endangered Species Act. Photo by Don Burkett/Flick

Over the past few months, Republican members of Congress have been attempting to systematically dismantle the Endangered Species Act (ESA) through dozens of legislative proposals. They say the ESA has been abused and is no longer an effective way to protect our vulnerable plants and animals, but some environmental groups say this erosion of the ESA will put species at more risk than we've seen in decades.

"They're trying to starve the beast," said Don Barry, a senior vice president at Defenders of Wildlife, a nonprofit conservation organization. "If you can't kill the beast outright by getting rid of the law, just turn off the federal funding spigot and watch it starve to death."

Enacted in 1973, the ESA gives the federal government the ability to list any plant or animal species as threatened or endangered. Once listed, federal agencies enact restrictions and regulations (both on public and private groups) to try to protect the species from further decline, while investing money into programs to try to restore its population.

The ESA is a watershed statute with a history of success, from saving the bald eagle to easing the grizzly bear back from the brink, and studies have quantified its effectiveness at preventing species from disappearing. And while Republicans have a long list of quibbles with the ESA, they're also frank about their desire to prevent wildlife protection from getting in the way of economic development.

The gray wolf is one species some politicians want to be exempt from ESA regulations. Photo by Lou Gold/Flickr

"Take it with an enormous, bone-crushing grain of salt when proponents of these bills say, 'hey, don't get me wrong, I'm all for endangered species conservation,'" Barry said. "It's clear who stands to benefit from this. Take your pick: oil and gas leasing, miners, timber guys, real estate developers. It's a who's who of individuals who have an economic piece of the action. That's what's driving this."

Barry helped create the ESA while working at the Department of the Interior's Fish and Wildlife Services (FWS), and has overseen its implementation, first with the government and then with Defenders of Wildlife, for more than 40 years. He said the dozens of bills from congressional Republicans aimed at defunding and dismantling the ESA constitute the worst attack on the act he's ever witnessed, and argued that every single proposed measure would undermine the ESA's ability to protect species at risk.

But congressional Republicans say that's not the case. They argue that in recent years the ESA has been misused, often as a way to shift land ownership to the federal level rather than to meet specific conservation and restoration goals.

"It doesn't work. Of all the government programs, it is probably the least effective, and the least efficient," Representative Rob Bishop, a Utah Republican who's leading the charge on ESA reform, told me over the phone. "The Endangered Species Act is used now as a litigation tool for controlling land, not actually for rehabilitating species. That's not part of the act, it's not what it was intended to do. That is the way it is being used—or abused—now."

Bishop told me he'd really like to see the act replaced wholesale, but that seems out of reach right now. So in the short term, Bishop and other members have proposed 84 different pieces of legislation to "play around with the edges of the act" (as Bishop put it), and shift more power to the state level while removing some of the ESA's bite.

These proposals include sweeping bills like one that would require the Secretaries of Interior & Commerce to report on the costs of ESA lawsuits once a year and post information about ESA suits on an online searchable database. There are also smaller, more specific bills and amendments that focus on certain species like the gray wolf, the lesser prairie chicken, and northern long-eared bat, seeking to either keep these species off the ESA list, or to prevent the ESA from being enforced if they're already listed.

And there is variation in the boldness of the bills. On one end: this lengthy bill from Senator Rand Paul that would upheave most parts of the ESA, making it harder to list species and requiring them to be automatically removed from the list after five years. (It got punted to a committee and hasn't been revisited). On the other end: more subtle pieces of legislation, like an amendment to the National Defense Authorization Act, allowing the Navy to be exempt from ESA crackdowns if its actions kill or disturb the endangered southern sea otter while working in certain areas. (That bill has already passed both the House and the Senate.)

The southern sea otter, an endangered species that will lose some protections under one amendment. Photo by J. Maughn/Flickr

"Some of the little ones might get through, specifically exempting out one thing or another, because that's happened before," said Jeffrey Rachlinski, an environmental law expert at Cornell University.

Rachlinski pointed out that a big point of contention for many Republicans is the issue of private party litigation. All of the US's major environmental statutes have clauses that allow private citizens to take the government to court if they don't believe the law is being properly enforced. For a long time, this was a relatively rare occurrence, but over the last few years a handful of environmental groups have become increasingly litigious, taking the government to court whenever they see an opportunity. And if they win, the government has to pay the private party's legal fees.

A few pieces of the proposed legislation seek to change this, either by making it harder for private groups to go to court, eliminating the government requirement to pay for the lawyer fees, or getting rid of private litigation altogether.

"The only ones I saw that I thought would really do much are the ones involving civil litigation by private parties," Rachlinski said. "That would have a big effect, to either prevent citizen lawsuits or end fee-shifting. A lot of the litigation is funded by the fees paid back from a previous lawsuit."

Representative Bishop argued state governments are more than capable of achieving the goals of the ESA on their own. He pointed to the greater sage-grouse, a large, ground-nesting game bird, and an oft-cited example of the current debate over ESA reform.

A male greater sage grouse, known for their elaborate mating displays. Photo by Bryant Olsen/Flickr

Historically, North America was home to millions of greater sage-grouse, with a habitat that spanned the continent. But the bird's natural habitat has been gradually eroded by human encroachment, and now the population is estimated between 200,000 and 500,000, living on about 44 percent of its historic range.

The population took a particularly dramatic nosedive between 2007 and 2013, decreasing by 56 percent, according to a Pew Charitable Trusts survey. In response, state agencies, along with some federal agencies like the Department of Agriculture, enacted a number of programs to try to protect and restore the sage-grouse, including paying ranchers to make their properties more grouse-friendly. These efforts have shown some success: the Western Association of Fish and Wildlife Agencies reported that the number of male greater sage-grouse has increased 63 percent since 2013.

"There was a period of five years in which the sage-grouse population was decreasing and that's what certain environmental groups and special interest groups are always quoting," Bishop said. "But we have increased the population in each of the last two years. That's been done by the states—at least in Utah's case—stepping in and doing it the right way."

The greater sage-grouse is on a watch list for the ESA, and could potentially be removed from that list when FWS reconsiders its classifications in the fall. However, it can't be listed as threatened or endangered thanks to a rider tacked on to a massive budget bill at the end of last year that prohibits the agency from listing the greater sage-grouse—an indicator of how far some members are willing to go to prevent the ESA from being enforced.

But the sage-grouse's expansive habitat is also comprised of areas that developers (from oil to agriculture) are salivating over: raw land that has remained relatively untouched for generations. And therein lies part of the motivation to keep the ESA out of the situation.

Plenty of congressional Republicans were candid about this side of the issue, saying they want to find a way to balance conservation with economic interests. Representative Doug Lamborn, speaking on an amendment that would end enforcement of the ESA for the endangered Preble's meadow jumping mouse, said protections for the rodent have caused development headaches.

"The little acrobat's most famous feat was its leap onto the Endangered Species list in May 1998, a move that has hindered development in moist meadows and streamside areas," the Colorado Republican said. "Among many projects that have been affected: the Jeffco Parkway southeast of Rocky Flats, an expansion of Chatfield Reservoir, and housing developments in El Paso County along tributaries of Monument Creek."

The amendment was agreed to.

Many of the members who introduced these bills said they felt the ESA was too draconian, not allowing for some grey area, like when a species is at risk due to disease rather than habitat destruction.

Even so, none of the people I talked to thought the bulk of the bills would get passed into law, including Representative Bishop. He told me he was not very confident the legislation would make it through the Senate and the president, saying most people don't see the same flaws that he does in the ESA.

Cornell's Rachlinski raised a similar point.

"Major reform is, I think, very unlikely given the need to get 60 votes in the Senate and pass the presidential signature. And it's a fairly stable and wildly popular statute, on the whole," he told me. "And there's a ton of evidence that it works."