Rolling back the regulatory restraints and costs imposed on industry and agriculture by the Endangered Species Act (ESA) has been among conservative objectives since the 1990s.
With the ESA in 2023 marking the 50th year since it was adopted under President Richard Nixon and a Republican-led Congress, a House Republican working group is developing proposed revisions to the landmark environmental regulation that it plans to introduce late this year or in 2024.
The House Natural Resources Committee’s assorted subpanels have been staging hearings since March on the problems fostered by the ESA, so it was no surprise when its Water, Wildlife, and Fisheries Subcommittee scheduled a July 18 hearing entitled, “ESA at 50: The Destructive Cost of the ESA.”
Nor was it any surprise that everyone knew what everyone else would say at the hearing, which would stretch two hours and include testimony from six witnesses, four ESA reform advocates and two Biden administration officials—National Oceanic and Atmospheric Administration Deputy Administrator Janet Coit and U.S. Fish and Wildlife Service Director Martha Williams.
But you really only need to listen to subcommittee Chair Cliff Bentz (R-Ore.) and ranking Democratic member Jared Huffman (D-Calif.) to hear the essentials of the argument for and against overhauling a complex, massive law that even proponents say does more to help law firms than it does endangered species and the habitats they rely on.
Oft-Repeated Arguments
“The purpose of today’s hearing is to review and acknowledge the destructive costs of the Endangered Species Act,” said Mr. Bentz, noting that the panel would hear from witnesses who could “testify to the costs the ESA imposes upon communities, states, ratepayers, businesses of all sizes, other species in every protected environment, our children, and the infirm, among many others.”The ESA “was a well-intentioned law,” he said, but after a half-century in effect, the law has cost “untold billions of expenditures, paid many times by small communities and families and the nation” with a “questionable” return on investment.
“It’s definitely time to come up with a better plan,” but that’s not what proponents—mostly Democrats—will say, according to Mr. Bentz.
“I’m absolutely certain we will hear from some folks across the aisle in an effort to hide or justify the horrific costs of this law, that today’s hearing is simply another effort to get rid of the ESA,” he said.
“It is not, but it most certainly is an attempt to understand the ESA’s costs.”
It seems Mr. Huffman already knew what Mr. Bentz would say about what he would say and what fellow Republicans on the panel would say about the ESA.
“We can expect to hear the usual anti-ESA tropes in this hearing, like how threatened and endangered species, not climate change, are responsible for wildfires and drought in the West,” Mr. Huffman said. “We'll also hear how the ESA is ‘Hotel California,’ where species check in but never leave, never get off the list.”
That’s because the ESA and federal agencies that manage the law are underfunded, and species are often listed when they already face “an uphill battle for recovery,” he said.
“We'll also hear tales today—tall tales—about how the ESA stops vital projects from moving forward. We’ve got to look at the facts, folks, not the rhetoric. The reality is, according to a scientific review of over 88,000 ESA consultations over seven years, zero projects were stopped, and zero projects were extensively altered as a result of adverse modification findings” from the ESA.
Mr. Huffman mocked the idea that the House GOP working group that’s attempting to “modernize” the ESA has only one intention: to gut it.
“Talking about euphemisms. Look at how they vote,” he said, noting the attempt last week by House Republicans to adopt a defense bill amendment to exempt the Department of Defense from the ESA and nearly all other environmental regulations. “That’s what they want to do. And today, ‘Team Extreme’ is at it again.”
Mr. Huffman said the ESA is vital as the country faces “a biodiversity crisis.”
“Too many species are on the brink of extinction. We don’t have time for the Republican majority to hold hearings that scapegoat imperiled species and pretend like climate change doesn’t exist. These species are going extinct. Three of them go extinct every hour,” he said, before checking the clock.
“We have 10 minutes until another species is driven to extinction.”
Since its adoption, the ESA has “kept 99 percent of listed species from going extinct,” according to Mr. Huffman.
Cost-Benefit Analysis Needed
Mr. Bentz said the hearing wasn’t about the prospective ESA amendments but about bringing “the cost of this law to the attention of the nation.”“Some here today will, no doubt, ask and possibly even suggest, given its incredible cost, why hasn’t Congress repealed this law? The answer is that we all want species to be safe. We want to avoid causing species to go extinct,” he said.
“Soon we will introduce amendments to the act that will improve this protection of species without destroying people and communities, without costing more money than we can possibly find to address these issues.”
Mr. Bentz said proponents have always made the argument either this or that, but it’s “absolutely possible to question the cost of the ESA without questioning the need to protect species, even though some here will say otherwise.”
“Cost does matter,” he said. “Money isn’t free, and understanding what we get from what we spend is always relevant, and there are certainly costs other than just money.”
The costs include those incurred by agencies in implementing the ESA “by many species [that] have water taken from them and given to other species,” according to Mr. Bentz.
“The cost to the nation of extraordinary amounts of delay and astounding amounts of money spent on the ESA, the cost of community destruction, and the loss of activities such as logging and forest management, which are stopped by the ESA,” he said.
“The cost of the young and old as they breathe air heavy with smoke from wildfires as they ravage our fuel-burdened forests kept that way because of lawsuits and bureaucracy creating a virtual, veritable Gordian knot of astounding complexity. The insane cost of ESA mitigation credits—that ‘Jabberwocky construct’ that’s driving the cost of electrical transmission and that’s put the cost for ratepayers and taxpayers across the West through the roof.
“And this is not to mention the insane impact this is having on land use and land values. The cost of flood insurance which, because of lawsuits based on the ESA, will skyrocket in price and time taken to issue such insurance as FEMA becomes the new frontier of ESA compliance.”
Despite the reams of regulations and the dockets of litigation in courts across the country, “the ESA is failing in one of his core missions, recovering endangered and threatened species,” according to Mr. Bentz.
“As many here know, only 3 percent of listed species have been de-listed,“ he said. ”Yet our constituents are being asked to pay billions of dollars each year—both direct and indirect costs—to subsidize failed species conservation actions,” which “desensitizes private landowners who are working hard to benefit species conservation.”
Mr. Huffman said: “I think we should be celebrating the ESA. This is a historic and popular conservation law which has prevented countless species from going extinct. It’s also enabled the recovery of some iconic species like the bald eagle and the humpback whale.
“But so far this year, my Republican colleagues have been much more interested in using the platform of this committee to villainize, attack, and misinform people about the ESA. It’s almost hard to believe that 50 years ago, this landmark legislation was spearheaded by Republican environmental champions.
“Today, Republican environmentalists are the most critically endangered species in politics.”
A Fresh Look at an Aging Law
National Resources Committee Chair Bruce Westerman (R-Ark.), who attended the hearing, said he “was expecting to hear most of those things that [Huffman] said” but still doesn’t understand the reticence in reviewing a half-century-old law and invited Democrats to join the working group.“I would ask the question, what is so radical about taking a fresh look at a law that’s 50 years old, that was put in place by Republicans and championed by Republicans?” he asked. “You’re looking at a Republican that doesn’t want to do away with ESA, who wants to make the ESA work, who wants to make it something that’s effective, that really is about helping species, helping biodiversity, and improving it.”
A forester, Mr. Westerman said among the things the group wants to review is the emphasis on engineered species instead of endangered habitats.
He said Democrats backed, with Republican support, adopting a Restoring America’s Wildlife Habitat Act.
“We’re going to call our version ‘Restoring America’s Wildlife Habitat Act’ because, when it comes to wildlife, really the only thing you can do is restore the habitat, and we’re seeing thousands, if not millions of acres of habitat on federal lands being mismanaged, that’s being destroyed by catastrophic wildfires, by insects and disease,“ he said. ”And if we really cared about endangered species, we would truly care about the forest habitat, the water habitat, the wetlands, and the ecosystems that promote good habitat and species recovery.”
Mr. Westerman said the ESA, while flawed, is necessary.
“I think it’s fair that we look back on a bill that’s 50 years old, and we celebrate the victories of it,” he said. “We have a strong population of bald eagles. We have grizzly bears. We have wolves that should be off of the Endangered Species Act. That’s not me saying that, that’s the Obama administration and other administrations.”
But it’s no longer effective and invites lawsuits, Mr. Westerman said.
“I would hope this would be a bipartisan effort,” he said. “It’s not because we haven’t made this open to our friends across the aisle. It’s because they don’t want to be part of the group.
“This work is absolutely necessary for the future of species conservation and our constituents, because the status quo just isn’t good enough anymore.”
