The enduring Endangered Species Act

 

Four years ago, Bruce Babbitt stood at a podium in Austin, Tex., and, in his most sonorous, Garrison Keillor-like voice, delivered the new gospel on endangered species.

The conservationists' most effective tool in the restoration of species and their habitats - the Endangered Species Act - was in peril, the then-Interior secretary told the Society for Ecological Restoration. Constant suing under the Act had spawned a backlash. Property-rights advocates and their conservative political friends would dismantle the law if provoked any further.

Babbitt then pointed to his own efforts to use the Act to negotiate long-term habitat conservation plans with logging companies, real estate developers and other landowners, as well as other programs that brought together various federal land agencies and stakeholders. Collaboration and cooperation, he said, would do far more for species - and for preserving the ESA - than litigious confrontation.

The audience enthusiastically applauded. Then a tall young man wearing dreadlocks stood up. After identifying himself as a member of the Tucson, Ariz.-based Center for Biological Diversity, a group that has relentlessly used the ESA as a legal hammer in the American Southwest, he asked Babbitt why his department had dragged its feet on designating critical habitat for the threatened Mexican spotted owl. Babbitt scowled. "You obviously missed my talk," he said in a suddenly cold voice, turning abruptly to the next questioner.

The visceral animosity between Babbitt and the Center representative illustrated a long-standing rift in the environmental movement. Is the Act, as Babbitt claimed, a fragile instrument which, if played too hard, will break? Or are collaborators just playing into the hands of developers and industries eager to avoid the law's toothier requirements?

There are no clean answers. But recent events make Babbitt seem, if not wrong, then at least overly fearful.

If ever there was a year to dismantle the ESA, 2001 was it: A new Republican administration; an Interior secretary who in previous jobs had sought to weaken the ESA; a bevy of appointees with pro-property rights backgrounds.

Then, this spring, Oregon's Klamath Basin crisis hit. There on prime time were the faces of hard-working farm families who would get no irrigation water this summer because of the needs of two obscure fish species. The message: The ESA is cruel to humans. Let's gut it.

As it had during the 1994 Gingrich revolution, the anti-green machine revved into high gear: Wise-use groups rallied around the stricken farmers; members of Congress began drafting legislation to gut the Act.

But that's as far as it's gone. A Bush-backed rider that would have curtailed lawsuits under the Act was stripped out by the House; "reform" legislation has failed to get off the ground; and though the Klamath still burns white hot, the country is realizing that this crisis has been 100 years in the making. The ESA has merely highlighted the overallocation of water in the Basin.

A few weeks ago, the apparent defeat of the anti-ESA forces was driven home by a groundbreaking deal. The hard-nosed Center for Biological Diversity and the U.S. Fish and Wildlife Service jointly announced that the agency will list 29 species of imperiled wildlife under the ESA; in return, the Center will give the agency time to comply with a court order to designate critical habitat for nine species.

The move, backed by Gale Norton, frees up more than a half-million dollars to jumpstart a listing program that has been paralyzed by lack of funds and a flood of petitions and lawsuits from environmentalists.

The agreement is remarkable because it shows the one-two punching power of litigation and negotiation. The Fish and Wildlife Service came to the table because it did not want to endure another 29 lawsuits and the possible extinction of species like the Northwest's pygmy rabbit, now down to just 50 captive individuals. The Center engaged because it realized that its lawsuits mean little without more resources for the agencies that must protect the species on the ground.

So was Babbitt wrong? Yes and no. The ESA remains a strong and flexible instrument with broad public support, even during an anti-environmental, Republican administration. Environmentalists can continue to sue freely under the Act because it won't break.

But even if Babbitt's push toward collaboration didn't save the Act, it has strengthened it. He demonstrated that the ESA is more than a blunt instrument, that it can be wielded in ways that draw people together and catalyze innovative solutions. Even the Center for Biological Diversity is heading in this direction.

"Litigation is a political tool," says Kieran Suckling, the Center's director. "All our big victories have come from agreements, not from court orders.

"We've thrown out all these legal bombs and now we are inexorably being drawn into the political process," he adds.

In other words, we need both litigation and collaboration to protect and restore our dwindling natural world. The ESA allows both to happen in a variety of combinations depending on the situation. That's the Act's enduring genius.

Paul Larmer is editor of High Country News.