Center for Biological Diversity

June 28, 2005

Kieran Suckling, (520) 275-5960

Pombo’s Endangered Species Act Bill Revealed

Seeks to Bury Federal Agencies Under an Avalanche of Paperwork; Promote Industry Lawsuits; Weaken Protection Standards; Bankrupt Conservation Programs

A summary of Richard Pombo’s long awaited Threatened and Endangered Species Recovery Act of 2005 was revealed today. Despite its name, the bill does precious little to help species recover. It eliminates essential habitat protections, buries wildlife agencies under a mountain of costly, inefficient bureaucracy, and encourages industry groups to paralyze the government with lawsuits over Byzantine paperwork rules. It also threatens to throw government regulation of all kinds into chaos by overturning traditional property law to make the federal government pay to regulate private property. This provision would quickly bankrupt federal conservation budgets and spawn lawsuits challenging all federal regulations.

A detailed review of this biological, economic, and bureaucratic disaster is presented below.

More Bureaucracy, Higher Costs, Less Conservation

Listings, critical habitat, and recovery plans are the heart of the recovery process. Scientific studies show the each contributes to the recovery of endangered species. Yet they are chronically delayed.[1][1] Pombo’s bill will make things worse by increasing bureaucracy and costs. It will replace conservation with endless paperwork, process, and review.

Section One falsely implies that states are not permitted to comment on draft recovery plans. Untrue. Every draft recovery plan is provided to affected states for comment. Virtually every federal recovery team since 1995 has included a state one representative. This extensive review process was established to fulfill Section 4 of the Endangered Species Act, which already requires that:

“The Secretary, in developing and implementing recovery plans, may procure the services of appropriate public and private agencies and institutions and other qualified persons…The Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan. The Secretary shall consider all information presented during the public comment period prior to approval of the plan…If, in the case of any regulation proposed by the Secretary under the authority of this section, a State agency to which notice thereof was given in accordance with subsection (b)(5)(A)(ii) files comments disagreeing with all or part of the proposed regulation, and the Secretary issues a final regulation which is in conflict with such comments, or if the Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency under subsection (b)(3), the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency’s comments or petition.”

Listing and critical habitat decisions go through an even more rigorous review and comment process. At least one proposal (often two) is published in the federal register and a final decision is not issued until the public, and state and tribal governments are given an opportunity to comment. Separate public comment periods are established for the draft designations and economic analysis.

Pombo’s bill implies that Endangered Species Act decisions are not peer-reviewed or scientifically sound. Untrue. The U.S. Fish and Wildlife Service and National Marine Fisheries Service established a peer-review policy on July 1, 1994.[2][2] All listing and critical habitat decisions since then have been peer-reviewed.  At the request of Congressman Pombo, the U.S. General Accounting Office issued a report in 2003 examining whether Fish and Wildlife Service decisions were scientifically sound. Entitled Fish and Wildlife Service Uses Best Available Science to Make Listing Decisions, but Additional Guidance Needed for Critical Habitat Designations, the report concluded:

“The Service’s policies and practices generally ensure that listing and critical habitat decisions are based on the best available science. The Service consults with experts and considers information from federal and state agencies, academia, other stakeholders, and the general public. Decisions are subject to external “peer review” and extensive internal review to help ensure that decisions are based on the best available science and conform to contemporary scientific principles.”

Ignoring the GAO study and the existing peer-review policy, Pombo’s bill creates new levels of extraneous reviews that serve no purpose other than to delay decision-making, drive up expenses, and invite litigation over paperwork errors. The 2001 Data Quality Act was written by industry lobbyists to paralyze government decision-making.  It has increased government spending by millions of dollars each year and contributed nothing to better decision-making. Pombo’s bill would interject this industry behemoth into the Endangered Species Act itself.

Section Two requires that all information used to list or delist species, designate critical habitats, and revise recovery plans be duplicated and made available in every state where the species occurs. For species like the bald eagle, this will require that over 20,000 pages of information be duplicated 49 times and housed in 49 different offices. Making the same effort for the nearly 1,300 species currently on the endangered list will require the duplication and housing of more than a million of pages of information.

Section Four requires that listing petitions be ignored unless all studies cited in them are sent by the petitioner to the U.S. Fish and Wildlife Service. But most information in most petitions is already possessed by the Service. Indeed, much it is produced or funded by the Service. Requiring that the information be duplicated and stored over and over again is senseless waste. Current U.S. Fish and Wildlife Service policy requires that the agency possess all information cited in its listing decisions. Thus it need only request information from petitions that it does not already have in its own files.

Section Ten establishes a mediation and appeals process that will likely do little to resolve conflict while forcing expensive, time-consuming bureaucratic processes on agencies that are already woefully underfunded and understaffed. Mr. Pombo is well aware of this as he regularly complains of litigation under the National Environmental Policy Act even though that law is implemented through an appeals process.

Politicizing Science

The Endangered Species Act balances the need to base decisions on the best available scientific information and to allow all citizens and state and local governments to participate in decision-making. In the case of recovery plan development, the U.S. Fish and Wildlife Service uses a two tiered system in which the Recovery Team consists only of state, federal, tribal, university and industry scientists with proven expertise in endangered species biology. A separate Recovery Implementation Team (sometime called Stakeholders Team) consists of a broader spectrum of conservation, economic, or other interests. The two teams work together, but the Recovery Team is ultimately responsible for ensuring that the plan reflects the best available scientific information.

Section Two blurs the line between science and politics by inserting economic and political interests into the scientific Recovery Team itself. It eliminates the current system of checks and balances.

Weakening Protection of Threatened Species

Section Three weakens protection standards for threatened species that currently enjoy essentially the same protections as endangered species. By definition, threatened species are declining toward endangered status. Pombo’s head-in-the-sand approach will limit the protection of these species until they actually become endangered. This is like withholding medicine from a patient until he starts to die. 229 species are currently listed as threatened including the Northern spotted owl, Mexican spotted owl, marbled murrelet, bald eagle, grizzly bear,Louisiana black bear, Apache trout, Central California steelhead trout, and Oregon coast coho salmon.

Pombo’s bill implies that endangered species are not being prioritized for protection. Untrue. At the request of Congressman Pombo, the U.S. Government Accountability Office issued a report in 2005 examining the Endangered Species Act priority system. Entitled Fish and Wildlife Service Generally Focuses Recovery Funding on High-Priority Species, but Needs to Periodically Assess Its Funding Decisions, the study affirmed that the agency generally directed its funding and conservation actions toward the most imperiled species.

Eliminates Recovery Standards for Habitat Protection

Critical habitat is currently defined as all areas necessary for the recovery of endangered species. Federal agencies are not permitted to fund or authorize actions that harm the ability of critical habitats to support recovery. The strategy works very well: species with critical habitat are twice as likely to be recovering as species without critical habitat.

Section Six would replace the recovery standard with a mere survival standard. This is like requiring that hospitals merely keep patients alive rather than restoring them to health. It also limits the protection of habitat areas that are not currently being used by the species. Species will never recover unless they have habitat to expand into as their populations grow.

Section Eight would eliminate most critical habitat altogether by exempting lands with so-called “management plans” on them, lands within Habitat Conservation Plans, and lands where there are economic conflicts. Critical habitat is the only section of the Endangered Species Act that establishes a recovery standard for habitat management. Pombo’s bill would replace this higher standard with plans that merely seek to avoid driving species extinct.

Creates Legal Chaos and Invites Massive Litigation While Bankrupting the Federal Government

Section Nine. The Supreme and lower courts have consistently ruled that protection of the environment and endangered species does not constitute taking of private property. Pombo’s bill would overturn this well-settled area of law by arbitrarily declaring that take does occur and must be compensated. This is a massive departure from the canons of American property law. It threatens to throw the system into chaos. Massive litigation by corporate and private interests will inevitably ensue. And the federal government’s very limited environmental budget will be immediately exhausted in multimillion dollar payments to landowners.

Ambiguous and Less Onerous Sections

Section Seven appears to fold many or all National Marine Fisheries Service functions into the Department of Interior. Depending on how the actual legal language reads, this could increase efficiency or create a massive, inefficient bureaucracy.

Section Seven eliminates the so-called “God Squad.” This loophole in the ESA allowed a cabinet-level committee to exempt development projects from the Endangered Species Act even if they were likely to drive species extinct. While we welcome the elimination of this committee, we note that Pombo’s description of the committee as “irrelevant” is quite correct. The God Squad has rarely been convened in the past 32 years and when convened has never exercised its authority to allow the extinction of any species.  Its elimination is of little practical consequence.

Section Eight shifts the timing of critical habitat from the time of listing to the earlier of three years from listing or one year following completion of a recovery plan. This provision is of little practical consequence. Currently, critical habitat is almost never designated at the time of listing. In 87% of the cases it designated after the completion of a recovery plan. In the past decade there has not been one instance in which critical habitat preceded a recovery plan that was prepared within three years of listing.

Section Three increases the agencies’ authority to eliminate dangerous exotic species. It is difficult to judge since no details are given, but exotic species are a significant threat to endangered species.