Depending on your perspective, the Endangered Species Act is either an incredible waste of money and effort, or a highly successful tool that protects species from extinction.
Both viewpoints were presented to the House Natural Resources Committee, where the Republican majority came away seeing a need to "strengthen and update" the ESA.
In a hearing before the full committee Tuesday that brought together critics and proponents of the ESA, the GOP leadership walked away with the impression that too often the act is used as "tool for litigation" that is both costly in dollars and work for the U.S. Fish and Wildlife Service as it endeavors to recover species on the list.
"Instead of focusing on recovering endangered species, there are groups that use the ESA as a way to bring lawsuits against the government and block job-creating projects,” said the committee's chairman, Rep. Doc Hastings, R-Washington. “By strengthening and updating the Endangered Species Act, improvements can be made so it’s no longer abused through lawsuits and instead can remain focused on fulfilling its true and original goal of species recovery.”
Among those testifying during Tuesday's hearing was Karen Budd-Falen, a fifth-generation Wyomingite whose law practice is focused on private property rights.
"While I do not advocate the complete repeal of the ESA, and neither do the landowners, families and communities I represent, this Act is a threat to private property use, working ranch families and resource and job providers," said Ms. Budd-Falen.
Part of the problem, she said, is that "if the federal government fails to respond to a petition to list a species within the 90-day time period mandated by the ESA, an environmental group can sue and almost always get attorneys fees paid. In these cases, the court is not ruling that the species is in fact threatened or endangered, but only that a deadline was missed by the FWS.”
Also testifying was John Leshy, a former solicitor for the Interior Department under President Clinton. In his prepared testimony Mr. Leshy told the committee that the Endangered Species Act is a success story "with only rare resort to the courts."
"While the Act puts endangered species concerns squarely on the table when decisions about projects that could affect them are made, in the vast majority of situations, those concerns are accommodated with modest adjustments, little disruption, and no litigation," he went on. "Of the many thousands of formal and informal 'consultations' – the Act’s central procedural requirement - that take place every year, almost all either allow the project to proceed with little change (because it has been planned with the Act in view), or result in modest changes.
"Often these changes make projects better, from an economic as well as environmental perspective. Only a relative handful are ever challenged in court. As this suggests, with nearly 40 years of operation, the Endangered Species Act has become embedded in project planning and resource management, and that is a good thing."
But Doug Miller, general manager of Public Utility District No. 2 of Pacific County in the state of Washington, testified that a species listed under the Act, the marbled murrelet, effectively led to the downfall of a proposed a wind farm.
Studies associated with the project's environmental assessment "concluded that the Project was not likely to have a significant adverse impact" on the murrelets or any other "sensitive species," his prepared testimony said. Additionally, those behind the wind farm obtained an option on 261 acres for use as mitigation against any marbled murrelet habitat lost to the project, he noted.
However, after Fish and Wildlife Service delays and decisions that further studies, including a full-blown environmental impact statement, were needed, the agency "outlined a new Project alternative that would have rendered the Project uneconomic if adopted" and those behind the project walked away, Mr. Miller said.
"A lesson I would take away from this experience is that a more transparent, reliable permitting process is needed under the ESA to permit renewable energy projects. I would also say that more formal oversight by Congress of the permitting process is needed to insure that waste of public resources can be avoided," he said. "Finally, I would say a need exists for independent review of FWS decisions, short of litigation, to insure that the agency makes its decisions without delay, and on the basis of the best available scientific information."
Among others presenting testimony was Dan Ashe, director of the Fish and Wildlife Service.
While the committee's Republican majority focused on one aspect of his testimony in its press release of the hearing -- that in FY2011 the agency had a nearly $21 million "resource management allocation for listing and critical habitat," of which it spent nearly $16 million on substantive actions required by court orders or settlement agreements resulting from litigation -- it wasn't clear how much of that $15.8 million was spent on legal fees vs. species recovery-related work that might have been court-ordered.
Also not making the release was Director Ashe's comment that the country is facing "an extinction crisis."
"The ESA provides a critical safety net for America’s native fish, wildlife, and plants. And we know it can deliver remarkable successes. Since Congress passed this landmark conservation law in 1973, the ESA has prevented the extinction of hundreds of imperiled species across the nation and has promoted the recovery of many others – like the bald eagle, the very symbol of our Nation’s strength," said the Fish and Wildlife Service director. "Well-known examples include the recovery of the American alligator and brown pelican. Likewise, in August of this year, the Service delisted the Tennessee purple coneflower. This was the culmination of another Service-facilitated alliance of multiple diverse partners coming together to achieve the unified goal of recovery for an endangered plant species."
While Director Ashe acknowledged litigation over the Act can be costly, he pointed out to the committee that the agency recently reached settlements with conservation groups to speed action on listing petitions and reduce litigation.
"As a result of those settlements, we now expect to be able to address the backlog of species awaiting final determinations for protection under the Act, and for the first time in years, the wildlife professionals at the Service will have the opportunity to use our objective listing priority system to extend the safety net to those species most in need of protection, rather than having our work priorities driven by the courts," the director pointed out.
"The Service will systematically, over a period of 6 years, review and address the needs of more than 250 species now on the list of candidates for protection under the ESA, to determine if they should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. All of these species were previously determined by the Service to warrant being proposed for listing, but action was deferred because of the need to allocate resources for other higher priority listing actions. The Service will make listing determinations for each species, carefully reviewing scientific information and public comments before determining whether listing is still warranted and, if so, whether to designate the species as threatened or endangered."
Rep. Hastings has promised additional hearings on the ESA. It will be interesting to see what, if any, legislation comes from them.