During the last months of 1997, Pete Wilson's administration, the California Legislature and several compromised environmentalists collaborated on legislation that weakens legal protection of endangered species and their habitats in California. Meanwhile, a bipartisan effort to reauthorize the federal Endangered Species Act (ESA) would virtually eliminate significant parts of the law while masquerading as a "reasonable" compromise.
The debate surrounding many of these proposals concerns permits allowing "incidental take" of protected species. The legal definition of "take" is to kill or harm a protected plant or animal, and in some cases has been extended to include destruction of essential habitat and disruption of species' breeding, feeding and sheltering
patterns. "Incidental take" refers to the death of endangered species resulting from "otherwise legal activities" like logging, ranching, agriculture, dam construction and so forth.
Incidental take permits have been issued under the federal ESA for more than 15 years; the permits are granted upon approval of a Habitat Conservation Plan, or HCP, that details how the impacts of the proposed take supposedly will be mitigated and minimized. HCPs have become the Clinton administration's favorite method of implementing the ESA on private lands, contributing both
individually and cumulatively to drastic losses of endangered species habitat nationwide by allowing otherwise prohibited development and resource extraction in many critical areas.
Under the California Endangered Species Act (CESA), the California Department of Fish & Game (DFG) in the past had no clear legal authority to issue such permits at the state level. Many species, including the marbled murrelets of Headwaters Forest, are protected under both CESA and the federal ESA. Nonetheless, DFG began in 1989 to grant landowners permission to "take" species
protected under CESA, prompting a successful lawsuit brought by 13 environmental groups from around the state, including EPIC.
Amazingly, lobbyists representing three of these groups (Planning and Conservation League, National Audubon Society and Sierra Club) simultaneously offered their support at the negotiating table where State Senator Patrick Johnston's SB 879 was written. This "compromise" legislation unnecessarily gave away the leverage gained in the lawsuit by granting DFG the authority to issue incidental take permits in a manner that seriously undermines CESA's overall conservation goals. Despite strenuous opposition from the other plaintiffs in the suit (including EPIC, the Natural Resources Defense Council and the California Native Plant Society) and many other environmental groups, SB 879 passed the legislature and was signed into law by Governor Pete Wilson this fall.
Although the lobbyists who worked for the bill's passage have subsequently argued that the bill is no worse than federal law, numerous other experts disagree. Even this argument misses the point that federal incidental take permits have seriously impacted numerous species and should not be used as any kind of acceptable benchmark. Finally, the whole debate over SB 879 demonstrates that once divided, the environmental lobby is far too easily
conquered.
Activists and concerned citizens should be taking these lessons to heart as the debate over reauthorization of the federal ESA continues in Washington. S. 1180, known after its principal author as the Kempthorne bill, attempts a similar restructuring of the federal law while deceptively employing the language of "recovery." The Kempthorne bill's authors even stole the title of a far better piece of legislation, Rep. George Miller's Endangered Species Recovery Act, illustrating the subterfuge behind Kempthorne's approach.
Under current law, federal wildlife officials are charged with preparing "recovery plans" detailing actions that would bring threatened or endangered species back to the point where they no longer need legal protection (i.e., fully "recovered" in their natural wild habitats). Although the Kempthorne bill makes a pretense of actually speeding up the recovery planning process, most of its provisions are unrealistic and doomed to failure if funding and staff are not dramatically increased. At the same time, the bill undermines recovery by streamlining the "consultation" and HCP processes through which projects that could harm species are evaluated. Furthermore, recovery planning would be biased toward industry by requiring individuals whose economic interests are at odds with species' needs to be part of recovery teams.
Another provision of the bill would essentially make existing Habitat Conservation Plans legally equivalent to full recovery plans, regardless of how badly the HCPs might be harming species. Interior Secretary Bruce Babbitt's insidious "No Surprises" policy, which locks HCP provisions into place for decades regardless of new information or negative impacts on species, would also become law under Kempthorne. Finally, the Secretary of Interior would be able to single-handedly declare, without soliciting public input or providing sound scientific rationale, that specific projects would not "take" endangered species. Imagine what incredible special interest favors a truly anti-environmental Interior Secretary (remember James Watt?) could grant given that power!
So far, the environmental community has remained relatively undivided in
its opposition to Kempthorne, although different groups have expressed their
opposition in different ways. Senators and Representatives need to hear from
their constituents on these issues. Concerned citizens should call all of
their representatives in Congress and ask them to oppose the Kempthorne bill.
The ESA is one of our most powerful tools in the on-going effort to protect
biodiversity and our magnificent natural heritage. Although more and more
Americans are expressing deep concern over environmental issues, political
decision-makers continue to streamline environmental laws in order to aid
large corporations in the abuse of our land, water, forests and wildlife.
The lessons of the CESA debacle are very clear: only a unified, committed
environmental movement guided by its grassroots base can muster the political
will necessary to defeat bad legislation like the Kempthorne bill.
