Critics say 'no surprises' means no protection
Note: This article accompanies another one of this issue's feature stories.
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 troublemaker.
"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 roamed.
As for himself, he said, his goal was to protect endangered species. "I haven't an ounce of energy to waste hating developers."
What a killjoy. Didn't he realize that hating developers is fun?
And, it 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.
The 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 works.
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 Treasury.
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 ever.
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 law.
A philosophical split
Though the conference attracted some developers and government officials, the main debate was between two sets of environmentalists: the confronters and the cooperators.
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 productive.
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."
For an 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 butterflies.
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 "mitigation."
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.
Like so 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 works.
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 them.
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 the holes.
A political solution
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?
To this there is an answer. The guy threatened to take the government to court on the basis that such a restriction would amount to a "taking."
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 wasn't.
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.
And then he made the connection which - amazingly - no one else had.
"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.
Or maybe 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?"
One who'd 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 HCP.
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 one.
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.
Eric 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 mouse.
"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 private property.
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.