Thursday, October 06, 2005

Congress: Thumbs-Up To Extinction

If you love life, you ought to take heed—these days herald the bleakest for America’s wild bounty since 1973.

That is because your congress last week decided it wise to blow up the Endangered Species Act, the longtime stalwart of the otherwise-overlooked.

For the past thirty-three years, the federal Endangered Species Act has proved a limited but significant check on the rapacious bulldozing of this country, blocking a strip-mall here and a clearcut there, shielding a gamut of wild things from bald eagle to arroyo toad—but hardly grinding development to a standstill.

And time and again, the Act has withstood siege by interest groups bent on unraveling its staunch prohibitions, which are often the sole redoubt for the luminously odd myriad of lifeforms driven to the brink by incoherent growth and under-regulated industry.

But profit-motive and self-interest finally snared their quarry last week, when a lock-step Republican House of Representatives enacted a bill that rips out the entrails of the Act.

The Threatened and Endangered Species Recovery Act of 2005 (TESRA) would emasculate ESA by maliciously fouling the decisionmaking machinery with bogus procedure, atrophying established protective standards, allowing end-arounds of federal obligations, and, perhaps most outrageously, requiring the federal government to pay landowners to comply with the law.

In effect, TESRA, if the Senate accepts it in substance when it votes sometime in 2006, would end thirty-three years of progressive, intelligent stewardship of our imperiled living-legacy.

And acting with hypocrisy that ought to enrage Americans of any political stripe, the House cloaked its deed in laughably transparent language claiming TESRA strengthens the Act's impact on species recovery.

Maybe we should not be surprised.

Congress regularly engages in this sort of patronization of American citizens, a wink-wink exchange that simplistically overstates the reality in ways even a child could smoke out. The public is expected to accept interest-group-engineered tripe as moderate, necessary, and practical.

Richard Pombo, the northern-California Republican and House Resources Committee Chair that introduced the TESRA bill, claims "the whole underlying premise of what we’re trying to do is recover species."

Bullshit. Conservationist trappings fit Pombo particularly poorly, considering he has been jousting at ESA for a decade.

But nobody claims ESA worked perfectly, so let’s break down his proposal.

He spins the measure as a "reform," appealing to Americans’ love of that word, suggesting that ESA is hopelessly ineffective and outdated, or as he clumsily puts it, stuck in the 1970s "wearing leisure suits."

Pombo accuses ESA of spawning "conflict, bureaucracy, and rampant litigation," all populist horrors—but necessary evils. His TESRA, meanwhile, "fixes" ESA by "increasing openness and accountability, . . . providing incentives, . . . strengthening scientific standards, . . . [and] eliminating dysfunction."

Methinks the lady doth protest too much. So do the many newspaper editorialists and law professors that rushed to point out Pombo’s disingenuousness last week.

Simply reading the cynical moniker attached to this work of deceit floods your gullet.

For starters, protection of the "threatened" species of the title, currently mandatory, would be left up to the discretion of the Interior Secretary. Experience dictates that politicians ignore discretionary duties, especially politicians that made their careers circumventing environmental laws for mining companies (Gale Norton). So much for preventative medicine.

Furthermore, TESRA obscures the very meaning of "recovery" under the original ESA by equating it with mere survival.

Animals need habitat; that’s a maxim of logic and science; but TESRA would restrict habitat protection to paltry acreages insufficient to foster real population stability.

Before one examines the full impact of Pombo’s "reform," however, it helps to know exactly how ESA works.

The ESA creates a process whereby organisms faced with decline are considered, in light of the "best available scientific and commercial data," for inclusion on a list of endangered species and a companion list of threatened species, each sheltered by an umbrella of protections outlined in the Act itself.

Prominent among these, the ESA sets significant limits on federal projects, such as road-building, timber sales, and dam operation, when they harm endangered and threatened species of plants and animals.

Perhaps more importantly, ESA tempers the ability of private citizens to destroy habitat on land they own. As such, it is one of the few federal laws that restrict a man’s land-use activities in his own back yard.

Titled Sections 7 and 9, respectively, these provisions capture the essence of ESA.

Section 7 of the Act requires a federal agency contemplating a project to "consult" with the relevant agency charged with ESA implementation to ensure agency action does not "jeopardize" species recovery or damage the designated "critical habitat" of the species. Either the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) makes the jeopardy determination, depending on the species affected.

A so-called "federal nexus" section 7 consultation.

Clearly, if the federal government itself acts on the ground, say by building a dam, ESA comes into play.

But the federal nexus also satisfies when the agency licenses private individuals or corporations to use federal land. Obvious federal involvement, such as U.S. Forest Service awarding of logging contracts or grazing permits, reaches this threshold. More ephemeral agency involvement also suffices, such as when private irrigators withdraw water under state law using diversion equipment originally constructed by the federal Bureau of Reclamation.

Though section 7 of the ESA envelopes our vast public lands, section 9 covers a much broader swath of American land; the private sector. The provision restricts land use that causes a "take" of a protected species. The Supreme Court extended the scope of the term "take" to include habitat destruction that actually harms the animal. Consequently, indirect "takes" are possible; they do not require showing a landowner went out and shot an owl, or hooked a rare fish.

In essence, then, section 9 greatly restricts a landowner's discretion to use his land as he chooses. It might prevent a rancher from running cows on land that supports an endangered orchid, or likewise, it might prevent a developer from shaving every ounce of topsoil from ten-million-dollars worth of suburban woods, home to a listed salamander.

This latter effect, coupled with limits section 7 sets, by proxy, on resource extractors like logging corporations that use federal land, has spawned righteous indignation and a riot of interest-groups that enthrall the ear of Congress. As we shall see, one of TESRA’s most significant provisions plays to their complaints.

Property rights advocacy groups spearhead ESA criticism. They embrace the romantic imagery of the yeoman farmer and self-reliant rancher, and echo Lockian notions of property ownership engrained in American thought—that is, that hard work and industriousness sanctifies property ownership.

The rhetoric is steeped in patriotism and moralism. As often as not, though, the bereaved is not a boot-strapping, sun-leathered rancher, but a Wall Street corporation wrapped in a flag.

It is painful to see agricultural communities hurt by federal regulation, yes. But government regulation is necessary—even when it stings individuals—to maintain this country’s over-arching fabric of the wild with the civilized. That is what distinguishes us from countries, like France, that saw their own wilds perish a thousand years ago.
A detailed discussion of property rights philosophy is beyond the ken of this essay, but in brief, the implication raised by ESA opponents is that section 9 restrictions effect a constitutionally-prohibited "taking" of private property without just compensation.

These groups ignore, however, a long-recognized limitation on the property right: the need for government to regulate in the common interest.

Since the property right exists courtesy of government’s institutional recognition and protection of private property (as opposed to self-defense by armed individuals, one supposes), it is natural to assume that government retains the power to limit the right, when necessary for the greater good.

"Well then," some private property advocates pipe up, "very well, limit our rights, but pay us, because the effect of ESA falls disproportionately on certain segments of Americans, namely rural westerners."

This is true, but other regulations fall disproportionately on other segments of Americans, and the federal government does not pay them to comply with the law. Such a precedent would be disastrous, and buck the very notion of a government of laws. Paying motorists not to speed is a frequent analogy, paying homeowners not to booby-trap sidewalks another.

Yet paying landowners to comply with ESA is one of the main "reforms" of TESRA, dressed up as an "incentive," the "carrot." With some quick figuring, one can see this provision alone would up-end ESA, bankrupting the coffers allocated to species protection. Approximately 1,300 species are listed under ESA, and the vast majority of them can be found on privately-owned land. Probably, Pombo intends the amendment to render species conservation financially impracticable.

TESRA defines a 50% reduction in property value, incurred because of section 9, to constitute a so-called "regulatory taking." While the Supreme Court has long recognized regulatory taking in principle, it has set the threshold much higher—"total diminution of economic value."

One can see that Pombo’s 50% threshold would pave the way for attacks on many universally-accepted forms of land-use regulation, such as zoning laws that prevent developers from building high-rises in single-family subdivisions, or strip clubs next to schools.
Furthermore, "forum-shopping" by developers should be expected. The measure would create the perverse incentive for developers to purchase land where endangered species live, so that government would be forced to pay the developer not to bulldoze, the way businessmen pay kickbacks to the mob not to get their teeth smashed. It is wholly unacceptable.

That is not to say true "incentives" are inappropriate. During the Clinton administration, when Bruce Babbitt served as Interior Secretary, the Department promulgated the "Habitat Conservation Planning" regulation that established an acceptable "incidental take" of listed species permitting otherwise-legal development to proceed without fear of recrimination. While controversial and perhaps vulnerable to hedging, the measure at least attempted to placate developers without pulling ESA’s teeth.

Perhaps some money could be freed-up, not as a bribe to the property owner, but as a habitat improvement fund that might defray unavoidable habitat degradation. (Probably even this would be abused, as developers do the "wetlands mitigation banking" program.)

Another Pombo claim, that TESRA improves the science used in ESA decisionmaking, also fails to stand up to scrutiny. This euphemism-filled salmonella bologna hearkens back to Pombo’s past efforts to weaken the ESA.
Pombo figured prominently in a 2001 water dispute that flared on the Klamath River, which flows through his district—ignited when FWS and NMFS advised the Bureau of Reclamation to restrict water use by farmers to protect endangered and threatened fish.

The administration requested the National Academy of Sciences (NAS), a non-political body of scientists, review the scientific data used by the Fish and Wildlife Service in ordering the shut-off of irrigation water. When NAS concluded the data were insufficient to show, without a statistically-significant doubt, that mandating minimum instream flow would protect fish, Pombo seized on the report, trumped it up, and misstated it, claiming it showed that ESA had no underpinnings in credible science.

A bill he introduced shortly thereafter, that would have required outside peer-review of agency decisionmaking, hopelessly snarling the process in bureaucracy and imposing scientifically impracticable standards, thankfully failed to emerge from committee.

At the time, scientists criticized Pombo’s meddling, pointing out that his claims about science missed the mark, suggesting that Pombo had merely found, in his science crusade, the tube to torpedo ESA.

Pombo’s latest model seeks to bloat FWS decisionmaking with lengthy "external peer-review" procedures, simultaneously abbreviating the consultation period to 160 days. If the agency cannot reach a defensible scientific position in this short time, the project would, by default, go forward.

The Fish and Wildlife Service already uses the "best available" science, and subjects itself to peer-review pursuant to regulations developed in 1994. All decisions on listing and critical habitat designation undergo the public notice and comment period required by the Administrative Procedure Act, a law designed to ensure public accountability. Any scientist, any mine owner, any affected landowner or garden-variety hooligan is encouraged to weigh in.

A record-of-decision must also withstand court scrutiny, in the event agency determinations are questioned. If the agency decisionmaking process fails to answer valid criticism adequately, the court will reject the agency action as "arbitrary and capricious."

Pombo’s "reform" does not strengthen the scientific standard; it obfuscates it, meanwhile sabotaging FWS’s will to act.

FWS already engages in rigorous internal data review, and hardly rushes to decisions. FWS employees are accountable, through their appointed superiors, to the president, in turn accountable to voters. Any action taken by the agency needs to weather the inevitable political backlash, and that alone makes FWS queasy.

Subjecting agency decisions to a "fifth branch of government"—an outside body of "experts" subjugate to no elected official—risks tainting the purity of a process reserved by congress to agency scientists. Lobbyists could co-opt this dynamic because it lacks oversight.

Pombo references the 2001 Data Quality Act, a measure similar to his peer-review freight in TESRA, as support for his proposal. But that law, written by industry lobbyists, has proven a bureaucratic nightmare to agencies charged with protecting our health and welfare.

What must be remembered is that certainty in science is rare; reams of incontrovertible data simply are not available, especially for scarce species like the arroyo toad. FWS operates in a pressure-cooker of time sensitivity and precautionary prudence, and often must feel its way through the dark.

Pombo contributes ink, not light.

Though the architects of ESA strove to insulate the law from political and economic pressures, commentators such as Oliver Houck (a law professor at Tulane University) have pointed out that FWS’s implementation of ESA is already sadly politicized. FWS is a so-called "expert agency," staffed with scientists, but chaired by politicians. FWS fails to act with timeliness often enough as it is. It does not need TESRA’s added burden.

The "best available science" standard and FWS’s current procedures, policed by the courts, though imperfect, are preferable to TESRA’s bureaucratic monkeywrench. Accountability and "sunshine" are Pombo’s code for bureaucratic clusterfuck, and careful reading of TESRA leaves little doubt that Pombo’s amendments are harpoons designed to drag the law to watery death.

Congress accorded the utmost worth to biodiversity, describing its value as, "quite literally, incalculable." Take congressional sincerity how you will, but this characterization begs the exercise of extreme caution—to the point of error, because error in the opposite direction results in extinction. This view fits with the "precautionary principle," or what Aldo Leopold called "intelligent tinkering," and feels conservative in the true sense of the word.

While some charge that ESA produces an inequitable result that the 1973 Congress could not possibly have intended, I submit the source of their outrage is simple; the law works. Though not perfectly, it accomplishes its purpose more efficaciously than interest groups prefer to tolerate, satiated as they are on sweetmeats.

Pombo and his allies premise TESRA on the need to "fix" the ESA, claiming it has failed. They cite some misleading statistics to support this. Most prominently, they state that only ten of 1300 listed species have "recovered" in ESA history.

ESA does establish "recovery" as the eventual statutory goal. The term as defined authorizes government to de-list a species when its population has reached a stable level. But recovery is a long, arduous road, considering that most species are nearly extinct by the time they finally receive protection. Sadly, the rarest may have declined past the point of viable recovery, and may live on as little more than shades in the woods of our collective memories.

But this does not mean the law has failed. TESRA neglects to recognize that only 9 of the 1300 listed species have become extinct since protection kicked in.

True reformists should look to the flaws in the Act that limit its conservation efficacy, not the points in the law that cost developers money. (A follow-up piece will discuss suggestions for improvement.)

Foresight and caution are wonderful virtues. When government codifies them, they modulate the profit-motive and self-interest native to man, which unchecked, would lead to a cacophonous and ugly society.

If the Senate makes Congressman Pombo's bill law, our nation will slide inexorably towards a dreary, homogeneous future; quite possibly a future unfit for human enjoyment.


Meanwhile, a proposal to sell off national parks leaked from Pombo’s office this week. This is not sarcasm. Thank you, Congressman, we appreciate your efforts to protect life.


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