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September 20, 2005

"Threatened and Endangered Species Recovery Act of 2005" Introduced

On Sept. 19, Representative Richard Pombo (R-CA), Chairman of the House Committee on Resources, introduced legislation {H.R. 3824} under the title Threatened and Endangered Species Recovery Act of 2005 (TESRA). Rep. Pombo’s stated intent is: “To amend and reauthorize the Endangered Species Act of 1973 to provide greater results conserving and recovering listed species,amend the ESA…” Here’s a link to a Thomas search page for bill text, cosponsors, etc.

The New York Times immediately blasted it in a Sept. 20 article titled, House Bill Would Limit U.S. Power to Protect Species, by Felicity Barringer.

... In a news conference Monday, Mr. Pombo said his legislation "will put the focus on recovery where it should be and will eliminate a lot of the conflicts we have had with private property owners."

The proposal was markedly different from draft legislation circulated earlier this summer, which put even greater restrictions on federal agencies that enforce the law, and which would have automatically taken the law off the books in 2015. The new measure abandons the latter goal but creates new hurdles for federal agencies - chiefly the Fish and Wildlife Service - as they take actions to protect species.

The Endangered Species Act has been a flashpoint for landowners, property-rights advocates and state and local governments, most in the West, who see its provisions as onerous and costly, and chafe at the ability of people not directly involved in a dispute to sue the federal government to ensure compliance with the law.

At the same time, the law is credited with preventing the extinction of hundreds of species of insects, plants and animals in the past quarter-century, though only a handful of the more than 1,200 listed species have recovered sufficiently to be removed from the list.

Mr. Pombo's first effort to rewrite the law, in the mid 1990's, failed. Since becoming chairman of the committee, he had made this goal a priority.

An important part of the legislation is a provision that allows the Interior Department, the parent agency of the Fish and Wildlife Service, to provide "conservation grants" to property owners who are deemed to be helping conserve an endangered species. The legislation also requires that property owners be paid "fair market value" if, in the view of federal biologists, their development plans would violate the law.

The purpose of the compensation would be "to alleviate the burden of conservation measure imposed on" landowners who forgo their plans in order to help a species' survive.

Chuck Cushman, the executive director American Land Rights Association, praised this approach, saying: "We're getting away from the command-and-control penalty concept. More landowners will feel free to help species and not feel that they're going to lose their land.

Right now, Mr. Cushman added, "there's a fair amount of shoot, shovel and shut up going on," by landowners who would rather break the law and kill an endangered animal than risk facing land-use restrictions.

But Michael Bean, who heads the wildlife protection program at Environmental Defense and was an early proponent of working with landowners, criticized the new measure as a "big step backwards for endangered species conservation." He faulted a new requirement that federal scientists provide, within 90 days, an answer to any landowner's question about whether a planned activity would run afoul of the act by harming an endangered species.

Under the new law, if the government has not answered within 90 days, the landowner can proceed with the plans. Mr. Bean said "there's potentially no limit to the sorts of requests that could be made of" federal biologists "by businesses seeking to develop, build, cut trees."

The Fish and Wildlife Service and the National Marine Fisheries Service, he added, have traditionally been stretched in trying to meet deadlines in the existing law and have frequently failed to do so.
The Center for Biological Diversity calls it “Pombo’s Anti-Endangered Species Bill” and provide on their site “Pombo’s own section by section analysis,“ along with perspectives from various environmental groups.

Posted by Dave on September 20, 2005 at 03:21 PM | Permalink


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Posted by: Martin Nie

Though very little surprises me these days when it comes to Washington politics, I am astounded by the level of dishonesty and misrepresentation displayed by some supporters of Pombo’s proposed Threatened and Endangered Species Recovery Act of 2005. It has nothing to do with species protection whatsoever. There are lots of ways that the ESA could be improved, but none of them are included in this mess of a bill. Put simply, some people will not be happy until every last acre of the U.S. is fully economically developed. The ESA, NEPA, and other environmental laws stand in their way, so these laws are being dismantled in a piecemeal fashion. It is death by a thousand cuts.

The bill is also founded upon an ahistorical and illogical understanding of private property rights and takings law. The ESA, and other federal environmental laws, are not nearly as onerous as Pombo and others make them out to be. Just look at the relatively few number of ESA decisions that have been found by the Courts to constitute a takings as prohibited by the 5th Amendment. As the nonpartisan Congressional Research Service noted in an update of the ESA-takings issue, “[O]nly one of the 12 ESA-based takings decisions revealed by research has found a taking.” (CRS, The Endangered Species Act and Claims of Property Rights “Takings,” March 9, 2005). The ESA is hardly the rabid pitbull as characterized by its opponents. Through various measures, including special rules allowing for all sorts of managerial flexibility (e.g., 10(j) and 4(d) rules), and habitat conservation plans, among other provisions granting increased discretion, the ESA is more like an emaciated pitbull partly tranquilized. It is usually starved of funding and chained to a side of a tree.

Pombo’s fundamentalist views of private property and regulation even runs counter to the conservative Supreme Court’s interpretation of takings. I am all for providing economic incentives to landowners who go above and beyond what is required of them by law. Such action would be a worthwhile federal investment and help build constructive relationships. There is also a lot that can be done before ESA listing and the “trainwreck” stage of litigation and conflict management. But having to pay land owners any time a federal law diminishes even a small part of their property value is a very scary and radical idea. What would such a principle mean for all of our federal and state environmental and land use laws? As the Supreme Court summarized in 1922, “government hardly could go on” if it had to pay for every change in the law that diminishes property values (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

Those champions of more collaborative conservation must also speak up. The ESA, among other laws, have provided various interests that were once relegated to the sides a seat at the center of the table. Without the potential hammer of the ESA, industry and development interests will have no incentive to collaborate any further.

I am not prone to hyperbole, but there is a lot at stake here. And the public deserves a more honest analysis that has been offered thus far. The media, scientists, academics, and resource professionals in our public land agencies, and others, have an obligation to ensure the credibility of this important debate.

Martin Nie

Martin Nie | Sep 30, 2005 10:41:54 AM

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