Ships Passing in the Night: Current Prospects for Reauthorization of the Endangered Species Act

By: Roger Platt

When it comes to reauthorization of the Endangered Species Act (ESA), the agendas of many key decision makers in Washington appear to be "ships passing in the night." Two highly distinct interest groups are most deeply invested in resolution of this issue. While both favor ESA reauthorization, they possess radically different purposes for doing so. The first, referred to here as "property rights" advocates, aim to return land use authority to state and local government and guard individual private property rights. For the second group, the "recovery" advocates, the objective of ESA reform is to better recover species by ensuring that individual and cumulative land use decisions are closely guided by recovery efforts.

The ongoing battle between these two groups over what are essentially competing land use philosophies has been closely watched inside and outside of Washington. It should be noted at the outset, however, that for many members of Congress, ESA reauthorization remains a relatively low priority. This may be surprising given that 90% of the 2450 counties in the continental United States provide habitat for one or more listed species (Senate Committee on Environment and Public Works 1997). The reality, however, is that the Act generates less public works projects and has less far-ranging economic impact than other environmental legislation, such as the Clean Water Act or Superfund. In addition, the issue suffers from the political stigma attached to all "hot button" environmental issues­no member of Congress can be assured that a bipartisan resolution of any environmental problem will satisfy all relevant constituents.

What, then, are the prospects for enactment of bipartisan legislation reaffirming our nation's commitment to species protection? And why has this issue proved so challenging to Washington policymakers? This article will respond to these questions by reviewing the current state of play in Washington.

Overview of Recent Developments

When government is divided along partisan lines, as it is today, legislative progress comes only through compromise, including explicit trade-offs. Until the approval this fall of bipartisan legislation by the Senate Committee on Environment and Public Works, no compromise legislation with broad political support had advanced. In 1996, consensus was found among a number of key ESA stakeholders. Their agreement highlighted the "middle ground" afforded by the Clinton Administration's ESA reforms, as well as experiments in Southern California with "natural community" conservation planning (Williams 1996; Houk 1997). In the end, however, it did not garner the kind of bipartisan support accorded the new Senate bill. This prior effort flared and dissolved in the summer of 1996, just months before the Presidential and Congressional elections. At that time, Democrats and Republicans did not want to become too closely identified with a bipartisan effort. They feared it would undermine their efforts to draw clear distinctions between the parties during the election season. In the current session of Congress, however, the Administration is clearly ready and willing to engage­and this willingness to participate has made it far easier for lawmakers on both sides to weigh in on the issue.

What follows is an overview of recent developments in the House and Senate that bear on the prospects for ESA reauthorization by this Congress.

House of Representatives

The disparity between differing philosophies of the groups seeking ESA reform has been particularly evident in the House of Representatives over the last four years. Property rights advocates view the issue principally as a means to resolve the "takings" issue. In Washington this issue has revolved around when, if ever, the government should compensate landowners for reductions in private property values where those reductions are caused by governmental regulations that restrict otherwise lawful use of that property. Property rights advocates are concerned that individual property owners are having their land "taken" by the government in order to effectuate national policies intended to have a collective benefit. They argue that if the collective good is to be promoted through such restrictions, the cost of those restrictions ought to be underwritten by general tax revenues.

Two years ago, during the last Congress, lawmakers with a property rights agenda, led by Representatives Don Young (R-AK) and Richard Pombo (R-CA), successfully pushed dramatic ESA reforms through the House Resources Committee. The proposal, H.R. 2275, would have required compensation for legislatively (versus constitutionally) defined "takings." In essence, the bill would have required the Federal government to pay landowners for reductions in property values of 20% or more caused by endangered species restrictions. While the legislation failed to pass, legislation ultimately signed by the President during that same session of Congress temporarily suspended new ESA listings. Property rights advocates expected the moratorium on listings to give them greater leverage in advancing the property rights legislation. In the end, that did not prove to be the case.

As part of the "Contract With America," legislation was passed by the House in 1995 that would have required private property rights compensation in contexts beyond the implementation of the ESA (H.R. 925). In the current Congress, bills have been considered in the House that would continue to advance this agenda, including procedural property rights legislation. This new breed of property rights legislation addresses what are viewed as procedural obstacles to obtaining federal court review of fifth amendment "takings" cases. One bill, H.R. 1534 as passed by the House in October 1997, would limit the ability of federal judges to abstain from jurisdiction when property owners only assert deprivations of federal rights. It also renders more cases ripe for federal judicial review by clarifying that federal jurisdiction is appropriate where one meaningful development application has been submitted but denied, and one waiver request or appeal to an administrative agency is rejected.

In addition, property rights advocates continue to air their philosophical concerns during consideration of Interior appropriations legislation. In large measure because the Administration's ESA policy reforms were not viewed as responsive to the property rights agenda, no meaningful funding was approved to underwrite their implementation. According to Robert Irvin of the Center for Marine Conservation, more money was spent producing the motion picture The Lost World: Jurrasic Park than on federal endangered species programs last year. Of course, as he himself wryly noted, that project involved recovering extinct as opposed to merely endangered species (Irvin 1997). The point, however, remains well taken­the House of Representatives, in the absence of ESA reform legislation, has not proven particularly hospitable to funding the ESA. While Congressional property rights advocates continue to hold the purse strings, the leverage has not translated into concrete legislative achievements in this area.

The progress of those within the recovery camp has also been limited. In part, this is because the leaders of this group are within a political party that is currently out of power. From this position they have not gained enough political support to move their agenda through the traditional committee system. Instead, they have appealed to the public at large and done so chiefly through attacks on various actions of property rights advocates. They have been led in this effort by Representative George Miller (D-CA), an established and respected player on ESA issues and ranking Democrat on the House Resources Committee. Early drafts of legislation developed by Representative Miller were reviewed in this journal (Weiner 1996) and formal legislation, H.R. 2351, the Endangered Species Recovery Act of 1997, was proposed this fall (see Barth, this issue). The bill has proven useful to those opposing the Senate legislation. By contrasting the Senate proposal's provisions to those of the Miller bill, the message has been communicated that Senators are "selling out" the Miller vision of ESA reform.

The split on ESA policy in the environmental community is complicating efforts of those campaigning for H.R. 2351. Some organizations are suggesting a willingness to accept legislation that codifies the Clinton Administration's policy reforms. For these groups, the landowner incentives in the Babbitt reform package address a very real and serious problem with current implementation of ESA. They point to recent reports by the U.S. Fish and Wildlife Service (FWS) indicating that only 10% of all species ostensibly protected by the Act are improving in their status. The status quo, they appear to believe, is not worth salvaging and the only way to make improvements is to engage in dialogue directly with regulated interests. Certainly, dialogue of all kinds occurs. Nonetheless, the basis for a comprehensive bill meeting all of their various objectives has remained elusive in the House.

The Senate

In light of the current state of play in the House, it is surprising that Senators John H. Chafee (R-RI), Dirk Kempthorne (R-ID), Harry Reid (D-NV), Max Baucus (D-MO) and Interior Secretary Bruce Babbitt have succeeded in developing bipartisan legislation. Even more remarkable is the fact that their bill, S. 1180 The Endangered Species Recovery Act of 1997 (see Barth, this issue), was approved by the full Senate Environment and Public Works Committee by a 15-3 margin. In the end, Senators Barbara Boxer (D-CA), Frank R. Lautenberg (NJ) and Joseph I. Lieberman (D-CT) were the only senators on the committee that decided not to support S.1180 in its current form.

Who lined up behind S.1180? First and most importantly, the Clinton Administration did. A democratic administration has the same kind of unique credibility in reforming environmental laws that President Richard Nixon had in making peace with the Communists in the People's Republic of China. The Clinton Administration supports the measure largely because it would codify much of the 10-point reform plan initiated by Interior Secretary Babbitt early in 1995. That plan recommended the use of sound science, prompt listing and delisting decisions, greater incorporation of the concerns and resources of state wildlife agencies, and incentives to encourage conservation planning (FWS 1995).

A number of the Admin-istration's initial ESA reforms encompassed incentives for private landowners to participate earlier in the habitat conservation planning process. Such participation could ultimately protect species before population declines necessitate listing. I will not include any further analysis of these landowner incentives. Instead, I note that a number of these reforms were consistent with the results of the Keystone Dialogue (a 1995 convention with participants from groups as diverse as U.S. Department of Interior, American Farm Bureau Federation, National Wildlife Federation, and Union Camp) as well as recommendations made by the Environmental Defense Fund (Wilcove 1996) and the Nature Conservancy (O'Connell 1997). The on-the-ground implementation of these reforms, however, has met with mixed reviews in this journal and elsewhere (See e.g., Aengst et al. 1997; O'Connell 1997; Mueller 1997; Kostyack 1997). Nonetheless, Secretary Babbitt is now convinced that, in an imperfect world, the reforms have made reasonable progress by rehabilitating the Act's effectiveness on private land. At the same time, he can argue that these policy initiatives have helped blunt attacks on the Act by the private sector. As a result, the prevailing view at the Interior remains that codification of these reforms would be a just and fitting tribute to the reform efforts.

Senate bill S. 1180 met the policy objectives of Senator Kempthorne, chairman of the principal subcommittee with jurisdiction over ESA matters. First, the legislation placed new emphasis on reducing future conflicts between recovery planning objectives and economic development objectives in the planning area. In fact, the committee report on the bill states "the central tenet of the bill is that recovery of species is both an objective of the Act and an under-utilized planning device" (Senate Committee on Environment and Public Works 1997). The legislation contemplates greater participation in the recovery planning process by the diverse set of stakeholders who would be impacted by the terms of the plan. If enacted, the legislation would also require the Interior Secretary to initiate a delisting process that meets the plan's recovery goals. In this way, Chairman Kempthorne clearly intends that the initial and final steps for implementing the Act's objectives should become more transparent to the public and, in the end, more equitable in their impacts. Also a priority for Chairman Kempthorne are provisions to ensure that the science relied on by those implementing the Act be subject to greater public scrutiny as well as more peer review by the broader scientific community. Equally important­especially in Kempthorne's home state of Idaho, where a large percentage of the land is owned by the federal government­are provisions that would streamline the Section 7 consultation process. This process requires federal agencies to consult with the FWS or National Marine Fisheries Service (NMFS) to ensure that their actions are not "likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species which is determined... to be critical." These provisions would allow "Federal action agencies to make an initial determination that a project is not likely to adversely affect a species" (Senate Committee on Environment and Public Works 1997).

Also, the International Association of Fish and Wildlife Agencies and the National Governor's Association have endorsed the bill for a number of reasons. First and foremost, the legislation responded to their charge that Federal authorities often show little respect for the parallel efforts and objectives of state fish and wildlife agencies. To address this concern, the bill would require that state agency views be meaningfully considered in the listing and consulting processes. It would also allow states to assume responsibility for development of draft recovery plans. One indirect benefit of state government endorsements is evident in the politics of the Texas Farm Bureau's decision to endorse the bill. The Texas agricultural community might have been expected to oppose ESA reforms that included no private property rights provisions. Due in no small measure to the enhanced state role proposed by the bill, however, the local Farm bureaus signed on.

A number of national landowner groups including the National Association of Home Builders and National Realty Committee, as well as various timber associations, ultimately chose to endorse the legislation for many of the same reasons that Senator Kempthorne sponsored it. National Realty Committee was particularly positive about provisions in the bill that would encourage and facilitate landowner participation in habitat conservation planning. These endorsements, however, may mask lingering concern among a number of small landowners regarding the bill's omission of private property rights protections. Whatever the political prospects for such provisions, there can be no doubt that many landowners viewed their absence from the bill as a sell-out of that issue. These suspicions continue to undermine efforts to move the bill forward in the Senate.

Critics and Opponents of the New Senate Legislation

The most striking element of S.1180 politics is the absence of strong support from the two groups whose agendas are "ships passing in the night." The private property rights advocates have apparently agreed to hold their fire, at least until the bill moves to the floor. For many of these elected officials it will be difficult to vote for this legislation because it does not contain a single provision directly aimed at protecting property rights. The fear that the property rights agenda will be "sold out" in the context of ESA reauthorization is almost palpable in some offices of Congress. Property rights advocates are, therefore, carefully weighing fallout from endorsing ESA reauthorization without takings provisions. In part, they are faced with a clear issue of politics and timing. Can they credibly portray compromise legislation as a "win" for them in this particular legislative settlement?

Against the prospect of accepting incremental change in national conservation policy, these Senators must also consider whether a new generation of more conservative Western lawmakers will one day control this issue. This already appears to be the case in the House. If this is likely to happen in the Senate, such lawmakers may be considering the benefits of starting fresh in the next Congress. At that time, Senator Jim Inhofe (R-OK) or Craig Thomas (R-WY) will be in line to replace Senator Kempthorne on the Environment Committee when he seeks the governorship of Idaho next year. These Senators are strong supporters of property rights legislation and, unlike Kempthorne, they have not been associated with high-profile environmental compromises acceptable to President Clinton (e.g., legislation reauthorizing the Safe Drinking Water Act). Finally, an important issue to consider is whether a Republican or Democrat will hold the presidency at the beginning of the next century.

In a remarkably parallel fashion, the recovery advocates have also communicated little enthusiasm for the Senate bill. Despite the legislation's focus on recovery planning, and its exclusion of property rights compensation provisions, they have stressed that the bill still leaves species at risk. In fact, the provisions that would codify the Babbitt reforms have been singled out as posing severe problems for the recovery of species. Serious concerns about the very principle of "No Surprises" remain (Sher and Weiner 1997; Weiner 1996). In addition, in the absence of an explicit recovery standard for the approval of Habitat Conservation Plans, the concern has been raised that these plans may undermine species recovery. It should also be noted that even the environmental groups that have praised Babbitt's reforms have not signed on to S.1180. Their principle concern, however, does not seem to be codification of the Administration's reforms. Instead, they object to a lack of dedicated funding to underwrite the new recovery planning process and administrative reform implementation. They have also questioned the efficiency of the new recovery planning procedures (Bean 1997). Like the property rights advocates, all of those approaching ESA reauthorization from an environmental advocate's perspective must now consider how future Congresses or Presidents may influence conservation policy. Is settlement now with President Clinton at the helm of the Executive Branch wise, or can a more recovery-oriented bill be enacted into law in the next century?

When organizations as diverse­and as influential­as the California Farm Bureau and the Sierra Club are not supporting S.1180, continued gridlock on ESA reauthorization is certainly one possible outcome. For many watching this process, the ultimate question is whether gridlock is the preferred result. Those whose agendas are ships passing in the night, seem to feel it is. What future Congresses may look like, however, may cause one or the other of the opposing camps to regret not taking more aggressive action in the 105th Congress.

Next Steps

What are the possible paths for Congress to follow now that the Senate Committee on Environment and Public Works has acted? Those favoring the committee-approved legislation will certainly try to broaden its political support. In doing so, they will look chiefly to the Administration to mediate the outreach effort. Apparently, the Administration does not think leaving reauthorization to another Congress is prudent. They genuinely believe that the landowner incentives are making a difference on the ground and would be more attractive to landowners if explicitly authorized by law. Babbitt and others also seem to believe that the failure of Congress to reaffirm the country's basic commitment to species protection and to revive a fuller and less conditional flow of funds to conservation programs is resulting in the slow death of conservation efforts. In my view, they also believe that there are costs associated with the continuous political battles to fend off efforts by the Congressional majority to end listings altogether, or to require the federal government to compensate landowners for the resulting property value reductions. By waging these battles in Congress year in and year out, the Administration and the environmental community are dissipating important political and financial resources. For the Administration, the price of a truce is chiefly codification of the Admin-istration's own reforms­and that is arguably no price at all. The Administration has argued that these reforms are achieving more good than harm and such results are well worth promoting through permanent changes in the law.

For S. 1180 to make progress, the Administration will need to broaden support from a variety of quarters. First, Secretary Babbitt and top Clinton environmental advisors in the White House will need to listen closely to the goals and concerns of the recovery advocates. If there are ways to advance elements of their agenda within the framework of S.1180­and I believe there are­these need to be identified. Second, the Administration will need to work closely with small landowner, timber and farm organizations to devise additional and well funded incentives for species conservation practices. These programs will need to speak meaningfully to these landowners' concerns about uncompensated "takings" of property. Finally, the Administration needs to send a clear signal that it will include in future budgets, and aggressively lobby for, the funding necessary to carry out the rehabilitated ESA recovery process and the "No Surprises" assurances envisioned by the bill. In fact, a fully dedicated and, therefore, assured source of funding may need to be instituted by the legislation.

Pursuing these objectives is the thankless burden that may fall to the Executive Branch of our government. In some circles these efforts will be referred to as Presidential leadership. In others, it will be deemed the deadly art of "compromise" and "selling out."

Literature Cited

Aengst, P., J. Anderson, J. Chamberlin, C. Grunewald, S. Loucks, E. Wheatley, and S. Yaffee. 1997. Introduction to habitat conservation planning. Endangered Species UPDATE 14(7&8).

Bean, M. 1997. Testimony of Michael Bean before the Senate Committee on Environment and Public Works concerning S.1180, The Endangered Species Recovery Act of 1997 on behalf of the Center for Marine Conservation, Environmental Defense Fund and World Wildlife Fund.

Houk, O. 1997. Law of biodiversity. Minnesota Law Review, 81:869.

Irvin, B. Briefing to Democratic Leadership Council sponsored by Progressive Policy Institute, Washington D.C. May 22, 1997.

Kostyack, J. 1997. Habitat conservation planning: Time to give conservationists and other concerned citizens a seat at the table. Endangered Species UPDATE, 14(7&8):51-55.

Mueller, T. 1997. Natural community conservation planning: Preserving species or developer interests? Endangered Species UPDATE, 14(7&8):26-28.

O'Connell, M. 1997. Improving habitat conservation planning through a regional ecosystem-based approach. Endangered Species UPDATE, 14(7&8):18-21.

Senate Committee on Environment and Public Works 1997. Committee Report (together with additional and minority views) on the Endangered Species Recovery Act of 1997 (S. 1180).

Silver, D. 1997. Natural community conservation planning: 1997 interim report.

Sher, V.M. and H.L. Weiner. 1997. Why HCPs must not undermine recovery. Endangered Species UPDATE, 14(7&8):67-69.

U.S. Fish and Wildlife Service. 1995. Protecting America's living heritage: A fair cooperative and scientifically sound approach to improving the ESA.

Weiner, H. 1996. Endangered Natural Heritage Act: Strengthening amendments to the current ESA. Endangered Species UPDATE, 13(6):4-5.

Wilcove, D., M. Bean, R. Bonnie, and M. McMillan. 1996. Rebuilding the Ark: Toward a more effective Endangered Species Act for private land (Environmental Defense Fund).

Williams, C. 1996. Finding common ground: Conservationists and regulated interests pursue ESA reform together. Endangered Species UPDATE, 13(6):1-3.

Roger Platt is the National Policy Counsel for the National Realty Committee in Washington, DC.

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