Nothing is all good or all bad, and H.R. 3824, the latest attempt to reform the Endangered Species Act introduced this week by Representatives Pombo (R-CA), Greg Walden (R-OR) and others has positive features. But it makes the one provision in the Endangered Species Act that looms above all others in the carnage it has caused throughout the West worse: Section 7.
Section 7 of the Act declares that federal agencies must avoid taking action that would "jeopardize the continued existence of listed species". Lawsuits filed under section 7 are responsible for exterminating small timber operators (owls), Klamath Basin farmers (suckers), doubling electricity rates in the Pacific Northwest (salmon), and creating countless other poster children for Endangered Species Act reform.*
Once upon a time, the meaning of "jeopardize the continued existence of" was clear: Congress wanted to make sure that agencies did not exterminate a listed species. If an agency did wish to take action that would do so, the agency would have to get an exemption from the "God Squad". It was called the "God Squad" because the premise was that if an exemption were given, the species would be exterminated. Other parts of the Act call for recovery plans for listed species, but Congress wisely recognized that some federal actions might have to proceed whether or not they impeded the recovery of listed species.
Pombo's bill changes section 7 by adding a definition of "jeopardize the continued existence of" to the Act: "The action reasonably would be expected to significantly impede, directly or indirectly, the conservation in the long-term of the species in the wild". This is a radical departure from the simple concept of not wiping species off the face of the earth. Now any and all federal agency actions must cease if they would "significantly impede" "conservation", even "indirectly".
From a definition already in the Act, we know that "conservation" means "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary". In other words, "conservation" means doing everything necessary to fully recover listed species to the point where they can be removed from the list of protected species.
If the Pombo bill passes, the question will no longer be whether federal agencies threaten to exterminate an entire species; the question will be whether or not what they do is would "directly or indirectly" impede the conservation programs of the fish and wildlife agencies. In a context where those agencies are infested with biologists eager to spend hundreds of thousands of dollars to save a single fish or rodent, nearly any use of public resources (other than paying biologists) can and will be characterized as "significantly impeding" conservation.
The inevitable result of Pombo's bill is that environmentalists will have a much more powerful tool for shutting down any federal agency action with which they disagree. To make matters worse, the Pombo bill removes the "God Squad" from the Act entirely, so that now, when federal judges issue crazy Endangered Species Act injunctions, the people of the United States will be utterly powerless to stop them through their elected representatives. It is true that we haven't elected anyone with the courage to actually convene the God Squad in a long time, but why on earth would anyone remove this safety valve from the Act?
Representative Pombo and Walden may not have fully considered the implications of their changes. But the meager benefits of their bill pale beside the larger harm these problems threaten. If this is an innocent mistake, they should be willing to revise the bill to remove these changes to section 7. If not, the bill should be killed on the floor.
© James Buchal, September 23, 2005
*Almost none of these animals were genuinely endangered, and Pombo's bill does nothing to solve the fundamental problem of bogus listings. Indeed the bill arguably makes it harder to get rid of bogus listings because "fundamental error" may now be required instead of mere "error".
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