The delta smelt, a tiny, silvery-blue fish hanging on for survival in California’s San Francisco Bay and Sacramento-San Joaquin estuary, is notorious among opponents of the Endangered Species Act. Efforts to help the smelt have contributed to farm closures, and water reductions for households and businesses, letting more water flow towards the smelt’s habitat. And yet since 1993, when the fish was listed as threatened, the smelt has only slid further toward extinction, making it an oft-cited example of how the ESA doesn’t work for people or fish, wildlife and plants.
Utah Congressman Rob Bishop is one of the House Republicans who has backed a bill to increase water storage in California and weaken protections for the smelt — prioritizing “people over ideology,” Bishop wrote last year. As chair of the House Resources Committee, Bishop has become a leader of a radical, anti-environmental movement in Congress. Their agenda includes transferring public lands from federal management to states and local governments, banning the creation of national monuments, and removing protections for existing monuments.
Bishop is even setting sights on bedrock environmental laws, leading a charge to completely repeal the U.S. Endangered Species Act. Since 1973, the ESA has enabled the federal government to recognize species as “threatened” or “endangered,” and to set rules and restrictions on human activity to protect and recover at-risk wildlife, fish, insects and plants. The act is considered a global beacon for preventing extinction, and environmentalists insist that the ESA rarely blocks development.
But Bishop and others instead see a law that creates expensive and time-consuming regulations for landowners and industries, with few success stories. For years, they have tried to modify and weaken the law. But earlier this month, Bishop went even further and told E&E News the ESA is so dysfunctional that lawmakers may “simply have to start over again,” and “repeal it and replace it.” That might mean giving state wildlife management agencies primary responsibility for species conservation. Protections could vary widely, and since states get their funds from hunting licenses and fees, they might be tempted to prioritize game management over at-risk species.
ESA proponents have so far largely succeeded in fending off the attacks. But with Donald Trump on his way to the White House, a conservative Republican Congress, and a soon-to-be conservative-leaning Supreme Court, environmentalists and legal scholars are taking Bishop’s threat seriously.
“Any Congressional action that would weaken the Endangered Species Act at all would be pretty dramatic,” says Dan Rohlf, a professor at Lewis and Clark Law School in Portland. “What Rep. Bishop is talking about would be a major decision in the environmental history of this country.”
How did we get here? Antipathy toward the ESA has been building for years. Soon after it passed Congress with bipartisan support, a landmark 1978 Supreme Court case forced the Tennessee Valley Authority to halt construction of a dam to protect another small fish, the snail darter. The case underscored the power of the act — and rankled some conservatives. Over time, they increasingly saw the ESA as protecting middling species at the expense of economic development and growth.
Conflicts often bubbled up during Section 7 consultations, a process that requires any project receiving federal funding or permits to prove it does not jeopardize at-risk species. Reforms followed. Under President Ronald Reagan, two major amendments made the law more flexible. They enabled developers to create plans to mitigate impacts on imperiled species while still moving their projects forward, and added protections for landowners who incidentally harmed or killed listed species.
Still, anti-ESA fury grew. When the U.S. Fish and Wildlife Service listed the Northern spotted owl as threatened in 1990, the agency fingered destruction of old-growth forests as a major cause of the owl's decline and basically halted logging in the region. Even though timber jobs were already dwindling, locals blamed the owl for the economic death spiral in the region. “That really did lead to a lot of political pressure on the ESA,” Rohlf says.
In 1995 House Republicans launched a fierce anti-ESA campaign. Led by Alaska Rep. Don Young and California Rep. Richard Pombo—Bishop's ideological predecessors—they pushed an ambitious “reform” bill that would have made it harder to list species, or to determine that development is impacting them. It would have also expanded financial compensation to private landowners facing stipulations to conserve habitat. Then-House Speaker Newt Gingrich somewhat surprisingly blocked the bill’s progress, recognizing the ESA’s nationwide support.
But the attacks on the law haven’t let up since. Pombo, whose district included farming regions affected by delta smelt protections, introduced eight ESA reform bills in 12 years. He tried to strip away critical habitat designations, which can restrict land use in places considered essential for protected species’ survival. A successful 2004 amendment did exempt military installations from critical habitat designations.
The pressure further intensified under President Barack Obama, despite the administration’s restrained approach to listings that could have had far-reaching economic impacts. In 2015, for instance, the Fish and Wildlife Service decided that the greater sage grouse, with habitat across millions of acres in the West, didn’t need to be listed, in part due to voluntary conservation efforts at the state and local level. The agency also issued several less restrictive “threatened” listings for controversial species like the lesser prairie chicken and dunes sagebrush lizard. Some environmental groups have questioned the scientific credibility of those decisions, and the results have clearly accommodated rural landowners and industries who are critical of the ESA. Nevertheless, according to Defenders of Wildlife, Republicans have introduced more than 100 amendments and riders to weaken the ESA just since 2015—an unprecedented amount.
“Any attempt to appease the opposition, whether the concerns are legitimate or not, has failed utterly,” says Pat Parenteau, a Vermont Law School professor and former legal adviser to the Fish and Wildlife Service. “The more that the act has been weakened, in my view, the more adamant the opponents have become that it just be completely eviscerated.”
Meanwhile, environmentalists continue to question the very basis for Bishop and others’ efforts. Last year, Ya-Wei Li of Defenders of Wildlife and a colleague analyzed more than 88,000 Section 7 consultations between 2008 and 2015 to ground-truth the claim that the ESA blocks development. In a peer-reviewed article published in the Proceedings of the National Academy of Sciences, Li found that the Fish and Wildlife Service determined in only two cases that development would jeopardize a listed species. No projects were ultimately stopped or extensively changed to protects plants and wildlife. Industry researchers responded that the study overlooked the high costs of simply going through the consultation process.
“The truth is the Endangered Species Act isn’t the pitbull of environmental law,” Parenteau says. “It’s a poodle.”
Joshua Zaffos is an HCN correspondent in Fort Collins, Colorado. Follow him @jzaffos.