‘Critical habitat’ is likely a thing of the past
For the 12th time in eight years, Rep. Richard Pombo, R-Calif., is attempting to reform one of the nation’s key environmental laws, the Endangered Species Act (HCN, 7/25/05: Will the real Mr. Pombo please stand up?). And this time, the chairman of the House Resource Committee, a strong advocate for private property and business interests, may get what he wants. On Sept. 29, the U.S. House of Representatives approved his "Threatened and Endangered Species Recovery Act," which proposes far-reaching changes to the law.
Most significantly, Pombo’s bill repeals the requirement to protect "critical habitat" — the home territories of endangered or threatened creatures. It also allows the secretary of the Interior, a political appointee, to determine what science can be used to make decisions about a protected species. And federal agencies and industry may now be allowed to harm imperiled species, through actions such as building roads, without first consulting with the U.S. Fish and Wildlife Service or NOAA Fisheries.
Pombo’s bill requires that recovery plans be developed within two years of a species’ listing; currently, no timeline exists for creating recovery plans. However, the bill says that recovery plans are now "non-regulatory," meaning that they’re no longer enforceable. For recovery on private land, the bill proposes voluntary agreements and federal payments to landowners.
The bill further orders the federal government to compensate property owners who lose land value or potential profit because of the act’s requirements. Federal courts have previously limited compensation for property "takings" to cases where the owner lost all use and benefits of the property — not for partial loss.
Critics have long argued that the Endangered Species Act encourages landowners to "shoot, shovel, and shut up," killing endangered species on their property to avoid potential land-use restrictions. "The only way this is going to work is if we bring in property owners to be part of the solution and to be part of recovering those species," said Pombo during House floor debate.
But the law already has incentives for property owners, says Bob Irvin, vice president of Defenders of Wildlife. Under the Safe Harbor program, for example, landowners who manage for species welfare can avoid more stringent requirements later.
Still, Irvin and many other environmentalists acknowledge that some change is necessary. Shortly after Pombo introduced his bill, they threw their support behind an amendment crafted by Rep. George Miller, D-Calif. and Rep. Sherwood Boehlert, R-N.Y.
Like the Pombo bill, the Miller/Boehlert amendment would have eliminated the critical habitat requirement. But the amendment also would have tightened one crucial aspect of the law, by prohibiting federal agencies from carrying out any actions that might make the recovery of a species less likely. The existing law prohibits only those actions that threaten a species’ existence. "(The new rule) would have done more for species recovery than critical habitat ever did," says Michael Bean, an attorney for Environmental Defense.
It almost worked: The Miller/Boehlert bill attracted northeastern Republican support and the endorsement of eight environmental groups, including the American Bird Conservancy, Trout Unlimited and The Wilderness Society. The amendment was narrowly defeated in the House, 216-206. The Pombo measure passed 229-193, with support from 36 Democrats, mostly from rural Western districts.
The debate now moves to the Senate, where Sen. James M. Inhofe, R-Okla., and Sen. Michael D. Crapo, R-Idaho, are working on a bill similar to Pombo’s, which they hope to introduce later this year.
However, Sen. Lincoln Chafee, R-R.I., has threatened to filibuster any Pombo-style endangered species bill. Chafee says his Fisheries, Wildlife and Water subcommittee will consider its own Endangered Species Act revisions next year, after getting a report on the subject from Colorado’s nonprofit Keystone Center.
On other fronts, Pombo floated draft legislation in September that included provisions to force the sale of 15 national parks and require the Park Service to raise $10 million annually by hawking advertising space on its maps and buses.
Pombo spokesman Brian Kennedy says that those proposals were not meant to be taken seriously. Instead, they appear to be bargaining chips to get drilling access to the Arctic National Wildlife Refuge.
Nevertheless, "we view selling parks as a real threat," says Craig Obey, vice president of the National Parks Conservation Association. He fears that a parks sale may reappear in the future, as Congress becomes ever more desperate to fund big-ticket items like the Hurricane Katrina recovery effort and the Iraq war.