On the Endangered List?

Forget about the whooping crane and the Florida panther. Nowadays many environmental advocates are worried that the Endangered Species Act (ESA), which was enacted into law in 1973, is more threatened than the animals and plants it was designed to protect. What's the threat?

On September 29, the U.S. House of Representatives passed legislation (H.R. 3824) that is being described by the bill's sponsors, Rep. Richard Pombo (R-CA) and Rep. Dennis Cardoza (D-CA), as an attempt to update and modernize the ESA. The new bill, the Threatened and Endangered Species Recovery Act (TESRA) of 2005 was passed with more than 96 co-sponsors. The new bill can be accessed by going to the Library of Congress's Web site (thomas.loc.gov). Pombo's bill now moves to the U.S. Senate for consideration.

According to its sponsors, TESRA fixes what they characterize as ESA's long-standing problems by: "(1) focusing on species recovery (2) providing incentives (3) increasing openness and accountability (4) strengthening scientific standards (5) creating bigger roles for state and local governments (6) protecting private property owners and (7) eliminating dysfunctional critical habitat designations."

Many critics of ESA seem to think that it promotes species first and people last. The law has been the subject of attack for many years from groups representing the lumber industry, real estate developers, and other interests. One of the most controversial aspects of ESA is related to critical habitats. ESA requires the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service, depending on the type of species, to designate critical habitats "to the maximum extent prudent and determinable" within a year of the listing of a threatened or endangered species. The problem is that, if a critical habitat is determined to be located on a person or entity's real property, that landowner can be restricted from taking any action on the land -- such as constructing buildings -- that could negatively impact the threatened or endangered species.

Pombo takes the position that his bill solves this problem. "What has surprised me most are the strong ideological differences about whether homeowners should be compensated when their property is taken, as the Fifth Amendment of the Constitution requires," he stated. "Upholding this right and partnering with the landowner is the only way we are going to improve the ESA's failing results for recovery. This legislation does just that."

Several environmental groups -- including the Center for Biological Diversity, EarthJustice, the Sierra Club, and the Natural Resource Defense Council -- have issued statements criticizing TESRA. They point out that the ESA is a safety net for wildlife, plants, and fish that are on the brink of extinction and that Rep. Pombo's bill would cut large holes in this safety net. Among the criticisms lodged against the bill are that it eliminates mandatory critical habitats and replace them with voluntary "recovery plans," and it repeals provisions that protect threatened or endangered species from the harmful impact of pesticides. These environmental groups also fault TESRA on the grounds that it requires agencies to compensate landowners for the costs they incur in complying with federal endangered species protections and thereby drains funding that is currently being used to help restore wildlife and the places they live. Furthermore, these critics point out that the bill exempts developers from compliance with TESRA if FWS fails to meet a 180-day deadline for telling the developers whether their actions would kill or harm an endangered species.

The move to replace ESA is a troubling sign of the direction being taken by our current society, which seems to value condos over condors. E.O. Wilson, the great scientist, conservationist, and Pulitzer Prize-winning author, recently pointed out that while destruction of the natural environment began a long time ago, "we are now proceeding to gulp down our capital faster and faster, without adequately recognizing that it is finite and is being depleted rapidly by over-consumption."

"A huge reduction of the world's biodiversity," Wilson asserted, "is something for which future generations are most likely not to forgive us." Will ESA go the way of the passenger pigeon? Our elected officials need to guard against switching from ESA, with all its shortcomings, to a law that would principally be a give-away to developers and other special interest groups. We need to take strong measures to protect our country's rarest flora and fauna before it's too late.

This editorial originally appeared in the November/December 2005 issue of Environmental Protection, Vol. 16, No. 9

This article originally appeared in the 11/01/2005 issue of Environmental Protection.

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