September 29, 2005
the Species (Act)
Congress has been promising to respond to the Supreme Court's Kelo decision, which gave government new power to seize private property. It could start by passing California Congressman Richard Pombo's reform of the Endangered Species Act.
Say what you will about that law's good intentions, its 32-year history has shown it to be a failure. Of the nearly 1,300 species on the endangered list, the act has "recovered" 10 -- a success rate of less than 1%. This is in part because the law, like so much of our command-and-control environmental legislation, is mired in litigation and red tape.
Mr. Pombo's reform, the product of years of hearings and scientific research, would put the focus on recovery while also giving local communities an incentive to cooperate with federal rules. More than 90% of all endangered species have habitats on private property. Yet under current law, landowners unlucky enough to discover such a critter lose the use of their land and face crippling regulations, costs and uncertainty. It's no wonder that most landowners prefer to "shoot, shovel, and shut up."
Under the Pombo bill, property owners who discover that they host an endangered species can apply to the Interior Department for permission to use their land for private purposes. If they do not receive an answer within 180 days, they can proceed. If Interior insists on certain habitat protections, landowners would then be entitled to conservation grants. And if the government forbids land use, owners would be compensated. By putting all taxpayers on the hook, the government would finally have to set priorities and make better decisions about which species to protect and how to do so.
The current law has also allowed decisions about species to be made based on "best available" science -- even if what's available isn't worth the petri dish it was performed in. Such flimsy standards have led to serious errors, such as the unnecessary 2001 shutdown of water to farmers in Klamath, Oregon on behalf of sucker fish. Less than a year after the cutoff, the National Academy of Sciences peer-reviewed the so-called biology behind Klamath and said there was "no sound scientific basis" for stopping the water. The new bill emphasizes peer-reviewed studies and empirical data.
Another improvement is the Pombo bill's elimination of what is known as "critical habitat." In the current regime, species listings are often accompanied by rules setting thousands of acres off limits to aid in "recovery." Environmental groups abuse these designations by litigating to make huge swathes of private land untouchable. The Pombo bill takes the focus off acreage and puts it on real recovery plans, requiring that every species listing be accompanied by a concrete strategy.
Passing this reform will be a knock-down political fight, though not along the usual partisan lines. Its supporters include Republicans and Democrats from rural and suburban areas whose constituents have borne the brunt of the law's unintended consequences. California Democrat Dennis Cardoza is one of the more than 70 co-sponsors of the bill, and the early betting is that as many as 40 Democrats will follow his lead. The legislation recently passed the Resources Committee, 26-12.
Opponents include urban Members, many of whom represent silk-stocking districts whose main species are anything but endangered. The environmental lobby is already claiming the Pombo bill "guts" the species act, but don't believe it. What these interest groups really care about is losing the immense leverage that the current law has given them, in the courts and in Washington, to interfere with the property rights of middle-class Americans.
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