Endangered Species Act Gets Toxic Tune-Up

By Amanda Griscom Little, Grist.org. Posted October 11, 2005.

There's been much wailing and gnashing of teeth in the environmental community since Rep. Richard Pombo (R-Calif.) pushed his overhaul of the Endangered Species Act through the House of Representatives last week. All eyes are now on the Senate to see whether Pombo's bill -- described as "so toxic it's radioactive" by Jamie Rappaport Clark, who oversaw implementation of the ESA during the Clinton administration -- will make it through that august body and onto the desk of President Bush, who's indicated his support.

Despite assumptions that the Senate -- the more deliberative, and generally more eco-friendly, chamber of Congress -- would block an initiative so controversial, enviros worry that Pombo is harrowingly close to getting his way. "I can't remember a time when any major environmental statute was under greater threat," said John Kostyack, senior counsel at the National Wildlife Federation.

Pombo, a former rancher who once famously (and fraudulently) claimed that his family farm was hobbled financially because it was designated as critical habitat for the endangered kit fox, has been trying to dismantle the ESA for more than 12 years. His bill is designed to wipe out the critical-habitat protections esteemed by many conservationists, thereby making it impossible for the government to prohibit harmful projects on lands deemed necessary to the recovery of imperiled species.

In a big coup for property-rights activists, the legislation would also require the feds to pay landowners for lost profits if the presence of an endangered species limits their development options. Because the U.S. Fish and Wildlife Service lacks funding to make such payments, this could effectively eliminate regulatory restrictions on commercial developers, according to critics.

"It gives developers the right to say to the government, 'You have two options: either grant me a permit to destroy sensitive habitat, or pay me market value not to,'" said Patrick Parenteau, director of the Environmental Law Clinic at Vermont Law School.

The measure could actually encourage more development plans for sensitive habitat, according to Erich Zimmermann, senior policy analyst at the nonpartisan group Taxpayers for Common Sense. "Pombo's bill creates a perverse incentive for landowners to come up with a plan to develop on the most biologically sensitive areas of their property, simply so that they can cash in on a government rebate." The bill is so rife with loopholes, said Zimmermann, that "there's nothing in it that would stop landowners from collecting multiple times on proposals for species-threatening projects on the same piece of property."

Also of grave concern to critics is a provision that would remove restrictions on the use of pesticides in biologically sensitive areas for five years, including chemicals that have been linked to the declines of Pacific salmon, sea turtles, and other aquatic species. The bill would also invest political appointees with greater power to make decisions about species protections. And it would limit the time period for government evaluation of land-use proposals to 180 days (a blink of an eye in the world of federal bureaucracy), with landowners getting de facto permission to proceed with development plans if they don't receive a response within that time frame.

"We've seen a lot of attacks on environmental laws in the past five years, but most have been piecemeal -- a waiver here, an exemption there," said Kostyack. "What we've not seen since we enacted this cornerstone body of laws three decades ago is an attempt at a full-frontal dismantling of a statute -- and one with unnervingly strong chances of victory, at that."

Depends What You Mean by "Fix"

Pombo touts his bill as an effort to enhance species recovery, not weaken it. His office did not respond to Muckraker's request for comment, but last week on the House floor he summed up his philosophy by saying, "We protect private property owners. That is what leads to recovery." He says his bill is needed because both sides are unhappy with the status quo: "[E]verybody [is] saying that there is problems with the law and we have to fix it."

Amanda Griscom Little writes the Muckraker column for Grist Magazine.

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