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Bill Would Gut Endangered Species Act

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Senator Rand Paul | Photo: Talk Radio News Service/Flickr/Creative Commons License


A bill recently introduced into the Senate and the House of Representatives would, in ReWild's analysis, add insurmountable hurdles to protecting new species under the Endangered Species Act of 1973, as well as mandating significant government handouts to private developers.

Senate Bill 1731, dubbed the "Endangered Species Management Self-Determination Act" by its author Kentucky Senator Rand Paul, would bar the U.S. Fish and Wildlife Service from listing any new species under ESA without the approval of the governors of any states in which that species resides, and require a joint resolution approving each listing by Congress as well.

The bill would also require that USFWS pay landowners one and a half times the market value of land deemed to have been reduced in value by the agency's enforcement of the ESA, and would automatically delist all species listed by Congressional joint resolution after five years.

The bill was introduced in the Senate by Paul and fellow Republican senators Mike Lee and Dean Heller of Utah and Nevada, respectively, and in the House by Nevada's Republican Representative Mark Amodei.

In addition to giving governors veto power over listing of species that happen to occur in their states, the bill would also allow a governor to take over all management of a listed species as long as that governor determines -- without judicial review -- that the species occurs only in the state. If a governor makes such a determination, the USFWS will be locked out of any management or monitoring of the species.

The bill would also substantially revise the parts of ESA that relate to private property in a manner that would probably monkey-wrench much of the actual work done by USFWS on ESA or other issues.

According to the Property Rights section of the bill, a landowner or lease holder can submit a description of any proposed project to USFWS seeking a determination as to whether the project would run afoul of ESA. USFWS will have 90 days to respond; if the clock runs out and USFWS hasn't had a chance to respond, the project is officially released of obligation to comply with ESA. If USFWS does respond and says that the project would violate the ESA, the landowner or lease holder will then be entitled to receive 150 percent of the property's fair market value if they can make a case that the property's value has taken a 50 percent hit. The bill is silent on criteria for determining whether a property has actually lost that much value.

In effect, the bill would potentially load USFWS with the responsibility to assess hundreds or thousands of projects that might not even trigger the Endangered Species Act, and open the door to ghost development proposals on endangered species habitat designed solely to procure those settlement payments of one and a half times a property's market value.

As justification for its "reforms" of ESA, the bill says:

litigation stemming from the ESA and some resulting settlements between the litigants and the Federal Government have made the ESA even more unworkable, to the detriment of species.

That's a reference to groups like the Center for Biological Diversity, which regularly litigates to compel agencies to consider protecting species under ESA and other laws. Ironically, the private property provisions of the bill would add to USFWS's management workload by a level orders of magnitude beyond that incurred from environmentalist lawsuits.

It's also worth noting that the bill nowhere mentions NOAA Fisheries, the other federal agency responsible for enforcing ESA. The omission suggests a lack of familiarity on the part of the authors with the law they seek to reform.

Taken at face value, the bill is one of the most overarching assaults on the nation's landmark wildlife protection law since that law was signed 40 years ago this month. Even former California Representative Richard Pombo's attempts to "reform" ESA, which eventually lost him enough support in the Bay Area that he was ousted by a Democrat, were not nearly as audacious. For just that reason, the chance that the bill as it's now written will prevail in the Democratically-controlled Senate are not good.

The question is whether this bill will remain what it is at present -- a stunt bill to bolster a few politicos' reputations with the States' and Property Rights sectors -- or whether it will get watered down sufficiently to pass muster with conservative Democrats, thus potentially posing a real threat to American wildlife. We'll be keeping tabs on this one.

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