WASHINGTON, D.C. - Before Mike O'Connell said a single word, you could tell he was going to be the first troublemaker.
It wasn't just that he wore a tie.
O'Connell's panel was the only one at the Habitat Conservation
Plans conference held in Washington, D.C., this past May, which was
omni-cravatular, in that everyone wore a tie, except the one woman
at the table.
But O'Connell's red tie had green
and yellow in it, and he kept his jacket on, and his brown hair was
parted on the left as though he were a suburban accountant, instead
of a senior official of The Nature Conservancy, which he is. In an
auditorium full of environmentalists, all this marked him as a real
"The question is," he said, "do we
want to protect or punish?"
To this question,
the one nobody else dared to ask, there was total silence. Having
injured, O'Connell proceeded to insult. "A lot of
environmentalists, especially at the grass roots, are trying to
bring down the private developer," he said, even though the owner
of land with endangered species on it may not be the real villain.
The real culprits, he pointed out, are all the rest of us, who live
in cities, suburbs and villages where once the buffalo
As for himself, he said, his goal was to
protect endangered species. "I haven't an ounce of energy to waste
What a killjoy. Didn't he
realize that hating developers is fun?
seems, sometimes justified.
The desire to beat up
on farmers, real estate developers and timber companies was one of
the obvious, if unspoken, themes of the conference, which was
attended by some 300 environmentalists, government officials,
scientists and business representatives.
other unspoken theme was the urgency of protecting species on
private lands. More than half the species listed under the
Endangered Species Act rely on private lands for their existence,
and those lands are going fast. The conferees were there to discuss
whether one particular tool, the Habitat Conservation Plan, could
offer any help.
Within the last three years, HCPs
have gone from being one of the most obscure tools in the
Endangered Species Act to one of the most prominent. Though HCPs
were authorized by law in 1982, only 14 of them existed before
1993. Now there are 211 in full effect and another 200 in the
And what are they? Well, they are deals
between the United States government - more specifically the
National Marine Fisheries Service or the U.S. Fish and Wildlife
Service - and a landowner (usually private, but another government
entity could qualify) allowing said landowner to destroy some
endangered species habitat if he agrees not to destroy too much of
it and/or to "mitigate," for the loss, usually by buying potential
habitat for that species somewhere else. The landowner pays for
this mitigation. This is part of the charm of HCPs as far as the
government is concerned. It doesn't cost the federal
The charm for the landowner is
protection against surprises. In fact, the bureaucracy has created
a "no surprises' policy, which says that if the landowner lives up
to his part of the bargain, no new restrictions will be placed on
what he can do with his property, even if the government later
decides to list other species found on the property under the
Endangered Species Act. "No surprises," formally implemented in
1994, is the carrot the Clinton administration has used to bring so
many landowners to the table.
And who wouldn't
sit down? For even if the government discovers that due to
"extraordinary" circumstances the deal will harm rather than help
the species, any changes to the plan must be paid for by the U.S.
taxpayers. One need not be a sophisticated political observer to
figure out that such changes would be ordered rarely, if
All of which sounds rather dry, but Oliver
Houck, an environmental lawyer from Tulane University in New
Orleans, may not have been exaggerating when he called it "the most
revolutionary issue in environmental law today." After all, it is
hardly common practice for any government to provide its citizens
with a legal mechanism for evading a
Though the conference attracted some
developers and government officials, the main debate was between
two sets of environmentalists: the confronters and the
From one conservation faction comes
the complaint that HCPs are just a charade to mask nonenforcement
of the Endangered Species Act. An HCP is "a license to kill" and "a
habitat destruction plan," according to Vic Sher of the Sierra Club
Legal Defense Fund.
There was some evidence
offered to back these claims. Jerry Jackson, a biologist from
Mississippi State, explained that the Georgia-Pacific Corp. had
hired him to find out if red-cockaded woodpeckers lived in its
Southern forests. Jackson said he found 11 colonies, and
"Georgia-Pacific clearcut nine of them" before the species was
listed. The company now has a Habitat Conservation Plan for the
woodpecker, and its biologist, Christopher Hart, came to the
conference to boast that the plan "goes beyond the requirements of
the Endangered Species Act."
But not everyone
was eager to accept the assurances of logging companies and other
developers. Many of the speakers, usually those "grassroots'
environmentalists O'Connell mentioned, thought that making
endangered species protection deals with landowners usually did
more good for the landowners than for the species, and that strict
enforcement of the Endangered Species Act would be more
From Jamie Rappaport Clark, assistant
director for ecological services of the U.S. Fish and Wildlife
Service, came the reply of the government and other
environmentalists: Without HCPs, "there won't be as much endangered
species conservation on private land."
answer to whether HCPs will save endangered species or actually
harm them more, one cannot even fall back on that old journalistic
cop-out of "only time will tell." So far, it hasn't. The very first
HCP deals with San Bruno Mountain near San Francisco, where in 1980
private owners were planning to develop land which was critical to
the mission blue and San Francisco silverspot
Lawyers, scientists, officials and
just plain folks worked for two years to hammer out a plan in which
some of the butterfly habitat was destroyed, but nearby land was
cleared of nonnative invasive plants and replanted with the kind of
vegetation the butterflies need. In the trade, this is known as
Those who were for the HCP to
begin with proclaim its success. "The butterflies are there," said
Michael Bean of the Environmental Defense Fund. Those who fought it
are convinced it's a failure. "Erosion and rampant spread of
nonnative plants have destroyed HCP restoration attempts," said
David Schooley of Bay Area Land Watch.
many other disputes, then, this one is a clash of temperaments as
much as of facts, financial interest or even political opinions. It
is not just the cooperators against the confronters, but also what
Oliver Houck called "the leave-it-aloners against the managers." To
many environmentalists there is something inherently distasteful
about destroying a habitat and then trying to re-create it nearby.
The term "playing God" was heard several times during the
conference. To others, habitat re-creation
But some of the re-creation and habitat
mitigation described at the conference seems like a joke. In the
Carolinas, for instance, one landowner whose forest is home to 12
groups of red-cockaded woodpeckers will be allowed to log the
habitat in exchange for drilling 12 woodpecker holes in trees in a
nearby national forest.
So he doesn't even have
to buy the mitigation land. And after four years, he can take his
chain saw to the woodpecker habitat even if not one bird has taken
up residence in the new condominia he has created for
This sounds like a sham, but Ralph Costa,
the biologist who runs the red-cockaded woodpecker program for Fish
and Wildlife, said there was "a very high probability that most of
those (new woodpecker) sites will be occupied," either by the
woodpeckers now on the private land or by others who would discover
OK, let the scientists argue that point.
Consider this one: Why didn't Fish and Wildlife simply invoke the
act and order this landowner not to touch that (rather small) part
of his woodland where those birds lived?
there is an answer. The guy threatened to take the government to
court on the basis that such a restriction would amount to a
Well, no government agency likes to go
to court. But the landowner had no case. The law and the court
decisions are very clear about what a "taking" is. This
No, it was not law that convinced the
Fish and Wildlife agency to make a deal. Nor was it any of the
other topics which dominated the conference - science, public
participation, or any of that policy-wonk stuff. It was politics.
In fact, the whole HCP business is politics, a reality all but
ignored until the last speaker of the conference, who turned out to
be the second troublemaker.
In this case, couture
provided no hint. Pat Parenteau dressed just as you'd figure a
University of Vermont Law School environmental lawyer would -
jacket, informal shirt, no tie. And as a law-school professor
should, he discussed the law, and the policy.
then he made the connection which - amazingly - no one else
"This was cooked up by people under stress
from the mindless Contract with America," Parenteau said, referring
to politicians who were convinced that "something had to be done to
stave off a full-scale attack on the Endangered Species Act."
This is precisely what happened. The
"user-friendly" Endangered Species Act - with HCPs and "no
surprises' - was conceived by Interior Secretary Bruce Babbitt and
others even before (since he could see what was coming) Republicans
committed to weakening the ESA took control of Congress. It was
Babbitt's pre-emptive strike to make the act seem benign. It was a
policy - no, an attitude - which fit his boss's obsession to be
loved by one and all.
And maybe it worked.
Evisceration of the Endangered Species Act, a goal dearly beloved
by the Republican "revolutionaries' of 1995, is now barely
discussed, much less seriously proposed.
Babbitt's tactic wasn't necessary to begin with. The Endangered
Species Act seems to have two constituencies - the organized
environmentalist community and the general public. That explains
the failure of the recent effort to pass a bill allowing post-flood
reconstruction in the upper Midwest to ignore the act. The fight
against the law was and is well-financed and well-organized. It
never came close to getting support from a majority of the voters.
Now that the Republican attack on environmentalism has come a
cropper, it's reasonable to ask whether Babbitt and Clinton
overreacted in 1995.
None of which proves that
the Habitat Conservation Plan is a bad idea. Even Parenteau said
there were times and places where it could be useful. In fact, most
of the HCP critics claimed not that the concept was flawed but that
its execution often was. And most of the defenders agreed. Too
often, speakers on both sides said, the plans were based on
insufficient scientific knowledge and included terms too generous
to landowners. The challenge, Oliver Houck said, was "can you make
an honest woman out of this thing?"
like to try is Dennis Murphy, president of the Center for
Conservation Biology at Stanford University and once a member of
the celebrated Spotted Owl Advisory Committee. Murphy's complaint
is that "HCPs are emerging without scientific guidelines," and he
and other scientists have made proposals to correct that weakness.
They want, among other things, assurances that HCPs can be amended
as new information comes in, as well as enough money for plans to
be adequately monitored.
Another idea comes from
Zygmunt Plater, the Boston College law professor who represented
the plaintiffs in the famous Tellico Dam snail darter case. How
about an endangered habitat Superfund? asked Plater. Part of a
developer's "mitigation" could be a fee payable to the fund. Throw
in a few bucks from the federal Treasury, and there would be enough
to buy some sensitive habitat and assuage the fears of those who
believe "no surprises' means no changes, ever, to an
Then there is the matter of who makes the
decisions, and how final those decisions are. Even the
Environmental Defense Fund's Michael Bean, an HCP advocate,
conceded that while there were provisions for "some public
participation," there could be a lot more public involvement.
Right now these plans are negotiated between the
landowner and a government agency. In theory, that agency is "the
public." In fact, it is sometimes just the agency. If nothing else,
opening up the process to public comment would minimize the
impression that insiders are trying to pull a fast
Which is what some environmentalists think
the Interior Department did when it adopted the "no surprises'
policy without a public comment process. With the help of the
Washington public-law firm Meyer and Glitzenstein, critics sued,
and won a settlement in which the government agreed to open the
process to public comment. No one doubts the Interior Department
will refuse to change its policy, but at least a good deal of
negative public opinion will be on record. That opinion, which
includes the opinions of hundreds of biologists, could form the
basis for a direct challenge of the policy.
Glitzenstein said his firm now represents a civic association in
Alabama which opposes an HCP because it allows condominiums to be
built right next to habitat of the endangered Alabama beach
"The trouble with this plan is that it
doesn't protect any habitat," said Glitzenstein. "The mitigation is
almost comical. It requires a sign telling people to not walk on
the beach because it's habitat for an endangered mouse."
But even Glitzenstein thinks that HCPs can be
made to work, a fact which points out that there is room for the
environmental community to come more closely together on the issue.
Some realize that even if the solution is imperfect, the problem it
addresses is real. Property rights are not absolute, but neither
should they be limited capriciously. There is nothing frivolous
about government intrusion into how an individual uses his or her
A prudent government would give
landowners consideration, which means it would work out some kind
of arrangement with them. In making such arrangements, the
government need not be a patsy. Still, an arrangement is just
another word for a deal, and we all know what a deal is. It's a
deal. The natural world may not recognize the concepts of private
property and individual rights. The rest of us must.
Jon Margolis covers
Washington, D.C., for High Country News.