Environmental Law Prof Blog

Court Orders New Biological Opinion on Columbia River Salmon

Judge James Redden gave NOAA Fisheries one year to complete a new biological opinion on operation of the federal Columbia River hydropower system.  While the biop is completed, the 2004 Biological Opinion will stay in effect.  The federal government had asked for no remand pending appeal or an open-ended remand or at least two years in which to develop the new biop.  The government hopes to coordinate any changes in the hydropower system with the recovery planning process addressing all aspects of salmon recovery -- and likely will appeal Redden's remand order.

GAO testimony about Lake Pontchartrain project

Here is some useful testimony by GAO providing background on the Army Corps project regarding Lake Pontchartrain.GAO testimony

Arctic Changes

The arctic is said to be the canary in the coal mine regarding climate change.  And times they are a changing!  Arctic climate change - Planet Ark

Recent Economic Literature: Carbon Taxes Anyone???

Gilbert Metcalf of the Tufts University Economic Department suggests that a carbon tax could used to fund corporate tax reform (such as eliminating double taxation on corporate income).  His study finds that such an environmental tax could be designed to have relatively small impacts on affected industries. Tax Reform and Environmental Taxation

Road Salt Will Kill

Science highlights Kaushal's study on road salt, published in 
Proc. Natl. Acad. Sci. U.S.A. 102, 13517 (2005):

"Fresh water is one of the most important resources and is vital for humans, agriculture, and natural ecosystems. There are many threats to the supply of this commodity, including climate change; pollution by industrial, agricultural, and automotive wastes; and overuse. Kaushal et al.add another: road salt.  Road salt is used liberally in areas of the northeastern United States that receive appreciable amounts of snow, and the runoff into urban and suburban watersheds is a growing threat to fresh water reserves. By measuring the concentration of chloride in streams in Maryland, New York, and New Hampshire during winters, the authors show that salinities are approaching 25% that of seawater in some cases and are greater than 100 times that ofpristine forest streams during summers. Watersheds where roads are densest are under severe pressure. If salinity in these regions continues to increase, surface water supplies in the Northeast may become unfit for human consumption and toxic to freshwater organisms by the end of the century."

Endangered Species Legislation

Science today provided a quick 3 page brief on problems that have arisen in implementing the ESA and the pending TESRA legislation. A great start for those of you introducing the ESA and pending legislation.  Science news analysis 

Fisheries bill inadequate

Science, Vol 309, Issue 5744, 2146-2147 , 30 September 2005 10.1126/science.309.5744.2146a]

Carolyn Gramling in Science notes that the pending fisheries management reauthorization bill would set a 2-year deadline for halting catches of species clearly identified as overfished, permit regional fisheries councils to consider a whole-ecosystem approach to management, and create opportunities for scientists to become more involved in fisheries decision-making.  Critics note that the bill does not advance ecosystem management of the ocean, does not require authorities to use the scientific advice they are offered, andl actually relaxes the existing mandate that overfished stocks be off-limits and allowed to rebuild for 10 years.  Fisheries Management Reauthorization

House Passes TESRA

House Resources press release:

For Immediate Release:   September 29, 2005   Contact: Brian Kennedy at (202) 226-9019   House Passes Historic Endangered   Species Act Improvement Bill   Threatened and   Endangered Species Recovery Act passes by a vote of 229-193  For the first time in more than a decade, the House of   Representatives passed legislation introduced by Chairman Richard W. Pombo   (R-CA) and Representative Dennis Cardoza (D-CA) to update and modernize the   Endangered Species Act (ESA) of 1973. The Threatened and Endangered Species   Recovery Act (TESRA) of 2005 has more than 96 cosponsors from 30 states   across the country.   Born of   the best intentions, the ESA has failed to recover endangered species while   conflict and litigation have plagued local communities and private property   owners alike. TESRA   fixes the long-outstanding problems of the Endangered Species Act 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. "During   debate, the entire House of Representatives seemed to agree the ESA is in   need of updates and improvements," Chairman Pombo said.   "It's incredible how far we have come.  But what surprised me most   today was the strong ideological differences about whether or not homeowners   should be compensated when their property is taken, as the Fifth Amendment of   the Constitution requires.  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."

New Book Note - Making Law Work

New Book Note

Making Law Work: Environmental Compliance & Sustainable Development (Cameron May, 2005).  

Making Law Work is a two-volume compilation of ideas, research, scholarship, and resources relevant to environmental compliance and enforcement -- required reading for anyone committed to improving environmental governance and making sustainable development a reality. 

Making Law Work also three exciting and empowering developments in environmental governance and sustainable development: the development of indicators; the rise of transgovernmental networks; and the “Porter hypothesis” demonstrating that compliance often can be profitable.

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Making Law Work bridges the divide between theory and practice and between scholar and practitioner, drawing on expertise from a variety of fields to produce a ground-breaking resource. Klaus Toepfer, the United Nations Environment Programme Executive Director, praises the book’s “empowering ideas for action.”
 
Making Law Work identifies emerging trends and new concepts, such as:

• Analyzing   the complex   interrelationships among concepts of compliance, rule of law, good   governance, and sustainable development;  
• Developing   transgovernmental networks,   an emerging form of global governance that allows regulators to share experiences   and innovative strategies   with colleagues from across the world;  
• Using data-driven   systems and indicators   to instill greater empirical rigor   in monitoring regulated entities and pursuing enforcement   actions;  
• Incorporating the “Porter   Hypothesis” in regulatory regimes, which allows industries to save money   and even increase   profits through “innovation offsets;”  
• <>

  Applying   theories that explain the motivations   behind individual   and firm-wide decisions to comply (or not comply) with   environmental laws in order to craft more effective and efficient   regulatory regimes;

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Making Law Work incorporates original articles by leading practitioners, including: K. Madhava Sarma, the former head of the Montreal Protocol Secretariat; Elizabeth Mrema and Carl Bruch of UNEP; Romina Picolotti, founder of the Center for Human Rights & Environment in Argentina; and David Hunter of American University’s Washington College of Law.  

Visit http://www.inece.org/makinglawwork.html to read selected excerpts from Making Law Work and to order this book.

Europe: ivory market killing elephants

The strong ivory market in Europe, along with poor enforcement of trade restrictions, fuels illegal poaching of African elephants.    Link: BBC NEWS: Europe is 'fuelling ivory trade'.

The Science of Global Warming: Artic Ice Disappearing Quickly

Artic ice cover is the smallest in more than a century. BBC NEWS'.

FIRE!!! TESRA: Threatening Endangered Species Recovery Act (the typographical "error" is mine)

The House resources committee reported the Threatening the Endangered Species Recovery Act aka Threatened or Endangered Species Recovery Act (TESRA) last week TESRA - House bill after mark-up.  Committee markup  The resources committee site also has an updated summary and analysis Summary and Analysis as well as an updated section-by-section analysis Section-by-section Analysis     and has collected data in an unofficial implementation report.  House Republican Implementation Report  The House will vote this week. 

Here are some of the opposing arguments:

National Environmental Trust - Assault on the ESA NET Report

Earthjustice Fact Sheet

Updated NWF Analysis:

 

September 23, 2005

 

TO:  Conservation Colleagues

 

FROM:  John Kostyack

Senior Counsel, National Wildlife Federation

202-797-6879, kostyack@nwf.org

 

RE: H.R. 3824, Rep. Pombo’s “Threatened and Endangered Species Recovery Act” (as approved by House Resources Committee)

 

 

The Endangered Species Act bill introduced Monday by Rep. Richard Pombo (R-CA), and as amended and approved yesterday by the House Resources Committee, would drastically scale back this nation’s commitment to conserving its endangered wildlife and habitats for future generations. The harmful bill is reportedly on a fast track for a vote by the full House of Representatives in approximately five days. This memo explains some of its most damaging provisions.

 

1. Protections      Against Hazardous Pesticides Would be Repealed

 

A key provision of the bill, inserted by the Committee with virtually no discussion or debate, would repeal all Endangered Species Act provisions that protect threatened and endangered species from the harmful impact of pesticides. Pesticides played a major contributing role in the decline of our nation’s symbol, the American bald eagle, in the mid-20^th century and are currently implicated in the decline of an array of species ranging from sea turtles to amphibians to Pacific salmon. Thanks to Endangered Species Act protections, riparian buffers are being established in the

Pacific Northwest

to reduce the amount of these toxic chemicals in rivers and streams. Under the Pombo bill, Endangered Species Act requirements are completely waived for all pesticide approvals over the first 5 years after the bill’s enactment, and thereafter the Environmental Protection Agency and chemical companies need only perform a meaningless consultation with federal wildlife agencies. The substantive protections of the Endangerd Species Act, such as the duties to ensure against illegal jeopardy and take of listed species, are permanently repealed for all pesticide registrations.

 

2. Pombo’s      Choice: Unfettered Habitat      Destruction or Big Payoffs to Developers

 

In two deceptively-worded sections (“Written Determination of Compliance,” and “Eligibility for Aid”), the Pombo bill would force wildlife agencies to choose between abandoning enforcement of the Endangered Species Act’s prohibition against taking endangered species - the provision that has given rise to collaborative habitat conservation planning across the country – or writing large checks to pay developers to comply with the law. 

 

Although conservation and industry groups widely support providing incentives funding for landowners to carry out voluntary conservation measures, this bill ignores this opportunity for consensus legislation. Instead, the Pombo bill promotes a developer entitlement scheme that would make the Endangered Species Act’s “safety net” of protections unworkable.

 

The Pombo bill would eliminate the careful review of environmentally harmful projects by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (“Services”) currently carried out under the Endangered Species Act. Under the bill, the Services must accept the developer’s characterization of the project’s impacts and may not demand additional information from the developer.

 

If one of the Services is unable to determine based on this limited information whether the project would violate the Endangered Species Act, the project automatically goes forward. Large tracts of habitat could be destroyed without any offsetting conservation measures, potentially putting endangered wildlife species on an irreversible path toward extinction.

 

If the Service determines that the project would violate the Endangered Species Act and seeks to protect some of the affected habitat, the Service would then become obligated to pay the developer for any foregone profits. Thus, for example, if the Service allows a subdivision to be built on all of a 2,000-acre tract except a 10-acre riparian habitat area used by an endangered toad, the developer would be entitled to a federal government check for any profits not earned on the last 10 acres - even if the overall project is highly profitable. 

 

This payoff is misleadingly characterized in Pombo’s bill as a “grant” program. In fact, it is a legal entitlement given to developers regardless of financial need or conservation merit. In fact, unlike typical grant programs, a developer who receives a check under this program makes no commitment to manage land for conservation purposes in return. 

 

The impact of Pombo’s bill on wildlife agency budgets would be devastating. Even after the Service’s available funds have been depleted due to developer payoffs, the Service would remain legally obligated to pay the remainder of any pending developer claims. Already struggling with anemic budgets, wildlife agencies would be thoroughly hamstrung by this new budgetary obligation.

 

Rep. Pombo has not provided any estimate of the impact of his bill on the taxpayer, but it could be substantial. The Office of Management and Budget (OMB) estimated that the direct spending costs of the 1995 House-passed ESA and wetlands “takings” bill would be $28 billion over seven years. This estimate was very conservative because, as then-OMB Director Rivlin testified, it did not include claims from unscrupulous developers who would “game the system,” purposefully bringing themselves within the regulatory scheme so that they could set up a claim for automatic payment. 

 

If the Pombo bill’s provisions requiring payoffs to developers were to become law, it would establish a precedent that could be used to weaken a vast array of other health, safety and environmental protections and programs. 

 

3. Wildlife      Agency Reviews of Federal Actions Would Be Bypassed

 

Perhaps the most important “safety net” provision of the Endangered Species Act is the requirement that all federal agencies consult with the Service concerning the harmful impacts of their actions on threatened and endangered species. This provision ensures that federal agencies “look before they leap” into projects that may irreparably damage valuable habitats and determine, with the expert advice of the Service, whether their projects will cause “jeopardy” to a threatened or endangered species or “adversely modify” its critical habitat.  See ESA § 7(a)(2); see also Parts 3 and 4 below. This provision encourages federal agencies, industry groups and other stakeholders to develop collaborative solutions that address both conservation and development needs. For example, it is through the consultation process that the Service and other stakeholders address the needs of both endangered fish and agricultural water users in Rep. Pombo’s district.

 

The Pombo bill allows federal agencies and industry groups to bypass this carefully-developed set of consultation rules and expedite federal projects that harm wildlife. According to the bill, the Secretary of Interior or Commerce may identify entire categories of federal actions that would satisfy the Endangered Species Act simply by complying with unspecified “alternative procedures.”  The bill imposes no minimum standards for these alternative procedures, thus allowing a potentially vast array of destructive federal activities to evade the normal wildlife agency reviews and to go forward quickly without any significant offsetting conservation measures.

 

4. Critical      Habitat Protection Would Be Eliminated

 

Of all the Endangered Species Act’s provisions, only the critical habitat feature makes it absolutely clear that federal actions cannot destroy habitat needed for endangered species recovery. Although other provisions of the Act protect some habitat, they have been interpreted as not protecting all of the habitat needed for recovery. The Act’s critical habitat feature has helped with the turnaround of a host of endangered species. An example is the whooping crane, which was threatened by federal dam projects along the

Platte

River

in

Nebraska

until the critical habitat protection was used to bring about a collaborative solution – a multi-stakeholder conservation trust that has helped acquire over 10,000 acres of riparian habitat while dam operations moved forward. The Pombo bill ignores the crucial role of critical habitat protection, repealing it from the Act altogether.

 

To justify this repeal, Rep. Pombo claims that he has replaced critical habitat with a better habitat protection tool, set forth in the bill’s recovery plan provisions. However, the Pombo bill merely states that recovery plans must identify areas of “special value” to the conservation of the species. Unlike the Act’s current critical habitat feature, the Pombo bill does not require that recovery plans identify the habitats needed for conservation (i.e., recovery) of the species. There is no definition of “special value.” Thus, only a subset of the important habitats – those that do not stand in the way of powerful developers – may be deemed special enough to warrant designation in the recovery plan. The Pombo bill assigns the task of developing recovery plans to industry-dominated “recovery teams” who are not likely to agree to a broad definition of “special value” habitats. 

 

The Pombo bill also fails to require completion of recovery plans for the hundreds of listed species that currently lack them. (In contrast, the bill imposes a 3-year deadline for completing recovery plans for species to be listed in the future.) Although the Secretary of Interior or Commerce must develop a “tentative schedule” to develop recovery plans for those already-listed species, they are only required to follow the schedule “to the maximum extent practicable.”  In the absence of any mandate to complete a recovery plan for these species, it is difficult to see how habitats of “special value” will be identified in a timely way.

 

The Pombo bill also falls short in protecting habitat needed for recovery because it does not actually protect the habitat areas to be identified in the recovery plans. Under the current Act, federal agencies are precluded from taking any action that “adversely modifies” designated critical habitat. The Pombo bill eliminates the “adverse modification” prohibition and provides no replacement mechanism for protecting habitat areas needed for recovery. 

 

5. Protection      Against Jeopardy Would Be Weakened

 

Another crucial “safety net” protection of the Endangered Species Act is the duty of federal agencies to ensure that their actions do not jeopardize the continued existence of threatened and endangered species. Pombo’s bill would weaken this protection in at least two significant ways.

 

First, the bill defines “jeopardize the continued existence” as covering only those federal actions that would impede conservation of the species “in the long term.”  This new definition would open up a loophole allowing destructive federal projects to go forward unimpeded in and around endangered species habitat, causing immediate and tangible harm to the species, based upon a speculative argument that conservation in the long term is assured. For example, if a federal forest plan allows massive timber harvesting, making streams uninhabitable for endangered salmon, this new jeopardy definition could allow the plan to go forward based solely on its stated goal of long-term forest regeneration – even though the plan lacks any significant conservation measures to address the harmful short-term impacts that put the species at risk of extinction.

 

Second, the bill would force the Service to put blinders on considering whether a species is in jeopardy of extinction. Under the current Act, in evaluating a federal action’s impact on a species, the Service must consider the “baseline” condition of the species at the time the action would be carried out. Thus, if a host of other projects are also negatively affecting the species, the Service must address the cumulative effects of the projects combined in evaluating whether the species is in trouble. The Pombo bill forbids the Service from taking these baseline conditions into account. It thus requires that the Service ignore reality on the ground and invent a fictional environment where the proposed action is the only current threat to the species’ existence.

 

 

6. Miscellaneous      Additional Weakening Provisions

 

The Pombo bill has a host of additional provisions that would make the Endangered Species Act’s goal of species recovery more difficult to accomplish. Among them:

 

• It      calls for new regulations that define “best available science,” allowing      the Secretary of Interior to lock in politically-motivated definition of      this key term rather than allowing scientists to continue to define it      according based on evolving knowledge and information. 
• It      imposes a new definition of “distinct population segments,” reducing the      likelihood that species will be protected at the population level, even      when such a proactive measure would be the most effective and least costly      conservation strategy. 
• It      codifies the “no surprises” rule, which limits the ability to reopen      permits for incidental take of listed species, without including tools,      such as monitoring and adaptive management, that are widely recognized as      necessary to rescue species declining toward extinction. 
• Habitat      destruction is authorized, and consultation duties are waived, for      activities carried out pursuant to newly-created state conservation      agreements. The bill imposes no      mitigation requirements or other minimum standards for these agreements. 
• Numerous      new bureaucratic hurdles are imposed on the Services, despite the already      severe shortage of resources and the likelihood that substantial      appropriations increases will not be forthcoming.

 

 

 

Original NWF Analysis:

"September 20, 2005

TO:  Conservation Colleagues

 

FROM:  John Kostyack

Senior Counsel, National Wildlife Federation 202-797-6879, kostyack@nwf.org

RE: H.R. 3824, Rep. Pombo’s “Threatened and Endangered Species Recovery Act”

The Endangered Species Act bill introduced yesterday by Rep. Richard Pombo (R-CA) would drastically scale back this nation’s commitment to conserving its endangered wildlife and habitats for future generations. This memo explains some of its most damaging provisions in the bill.

<>

1.   Pombo’s      Choice: Unfettered Habitat      Destruction or Big Payoffs to Developers

In two deceptively-worded sections (“Written Determination of Compliance,” pp. 53-55, and “Eligibility for Aid,” pp. 57-58), the Pombo bill would force wildlife agencies to choose between abandoning enforcement of the Endangered Species Act’s prohibition against taking endangered species - the provision that has given rise to collaborative habitat conservation planning across the country – or writing large checks to pay developers to comply with the law.   

<>

Although conservation and industry groups widely support providing incentives funding for landowners to carry out voluntary conservation measures, this bill ignores this opportunity for consensus legislation. Instead, the Pombo bill promotes a developer entitlement scheme that would make the Endangered Species Act’s “safety net” of protections unworkable.

<>

 

The Pombo bill would allow developers to proceed with environmentally harmful projects without carrying out any of the offsetting habitat conservation measures ordinarily required by the Endangered Species Act if federal wildlife agencies are unable to evaluate these projects within a 90 day review period. The bill would force the wildlife agencies -- the U.S. Fish and Wildlife Service and National Marine Fisheries Service (“Services”) -- to accept the developer’s characterization of the project’s impacts and deny them the ability to request additional information from the developer.

Under the bill, if one of the Services is unable to determine within 90 days whether the project would violate the Endangered Species Act, the project would go forward. Large tracts of habitat could be destroyed without any offsetting conservation measures, potentially putting endangered wildlife species on an irreversible path toward extinction.

If the Service determines that the project would violate the Endangered Species Act and seeks to protect some of the affected habitat, the Service would then become obligated to pay the developer for any foregone profits. Thus, for example, if the Service allows a subdivision to be built on all of a 2,000-acre tract except a 10-acre riparian habitat area used by an endangered toad, the developer would be entitled to a federal government check for any profits not earned on the last 10 acres - even if the overall project is highly profitable.

<>

 

This payoff is misleadingly characterized in Pombo’s bill as a “grant” program. In fact, it is a legal entitlement given to developers regardless of financial need or conservation merit. In fact, unlike typical grant programs, a developer who receives a check under this program makes no commitment to manage land for conservation purposes in return.

<>

 

The impact of Pombo’s bill on wildlife agency budgets would be devastating. Even after the Service’s available funds have been depleted due to developer payoffs, the Service would remain legally obligated to pay the remainder of any pending developer claims in the next fiscal year. Already struggling with anemic budgets, wildlife agencies would be thoroughly hamstrung by this new budgetary obligation.

<>

 

Rep. Pombo has not provided any estimate of the impact of his bill on the taxpayer, but it could be substantial. The Office of Management and Budget (OMB) estimated that the direct spending costs of the 1995 House-passed ESA and wetlands “takings” bill would be $28 billion over seven years. This estimate was very conservative because, as then-OMB Director Rivlin testified, it did not include claims from unscrupulous developers who would “game the system,” purposefully bringing themselves within the regulatory scheme with implausible development plans so that they could set up a claim for automatic payment. Pombo’s bill would encourage such gamesmanship, since the Service would be obligated to pay regardless of whether the developer has the financial capacity or government approvals needed to carry out its proposed project.

 

If the Pombo bill’s provisions requiring payoffs to developers were to become law, it would establish a precedent that could be used to weaken a vast array of other health, safety and environmental protections and programs.

2. Wildlife      Agency Reviews of Federal Actions Would Be Bypassed

Perhaps the most important “safety net” provision of the Endangered Species Act is the requirement that all federal agencies consult with the Service concerning the harmful impacts of their actions on threatened and endangered species. This provision ensures that federal agencies “look before they leap” into projects that may irreparably damage valuable habitats and determine, with the expert advice of the Service, whether their projects will cause “jeopardy” to a threatened or endangered species or “adversely modify” its critical habitat.  See ESA § 7(a)(2); see also Parts 3 and 4 below. This provision encourages federal agencies, industry groups and other stakeholders to develop collaborative solutions that address both conservation and development needs. For example, it is through the consultation process that the Service and other stakeholders address the needs of both endangered fish and agricultural water users in Rep. Pombo’s district.

The Pombo bill allows federal agencies and industry groups to bypass this carefully-developed set of consultation rules and expedite federal projects that harm wildlife. According to the bill, the Secretary of Interior or Commerce may identify entire categories of federal actions that would satisfy the Endangered Species Act simply by complying with unspecified “alternative procedures.” The bill imposes no minimum standards for these alternative procedures, thus allowing a potentially vast array of destructive federal activities to evade the normal wildlife agency reviews and to go forward quickly without any significant offsetting conservation measures.

3. Critical      Habitat Protection Would Be Eliminated

Of all the Endangered Species Act’s provisions, only the critical habitat feature makes it absolutely clear that federal actions cannot destroy habitat needed for endangered species recovery. Although other provisions of the Act protect some habitat, they have been interpreted as not protecting all of the habitat needed for recovery. The Act’s critical habitat feature has helped with the turnaround of a host of endangered species. An example is the whooping crane, which was threatened by federal dam projects along the

Platte

River

in

Nebraska

until the critical habitat protection was used to bring about a collaborative solution – a multi-stakeholder conservation trust that has helped acquire over 10,000 acres of riparian habitat while dam operations moved forward. The Pombo bill ignores the crucial role of critical habitat protection, repealing it from the Act altogether (pp. 7-10.)

To justify this repeal, Rep. Pombo claims that he has replaced critical habitat with a better habitat protection tool, set forth in the bill’s recovery plan provisions. However, the Pombo bill merely states that recovery plans must identify areas of “special value” to the conservation of the species (p. 21.) Unlike the Act’s current critical habitat feature, the Pombo bill does not require that recovery plans identify the habitats needed for conservation (i.e., recovery) of the species. There is no definition of “special value.” Thus, only a subset of the important habitats – those that do not stand in the way of powerful developers – may be deemed special enough to warrant designation in the recovery plan. The Pombo bill assigns the task of developing recovery plans to industry-dominated “recovery teams” (pp. 23-24) who are not likely to agree to a broad definition of “special value” habitats.

The Pombo bill also fails to require completion of recovery plans for the hundreds of listed species that currently lack them. (In contrast, the bill imposes a 2-year deadline for completing recovery plans for species to be listed in the future.) Although the Secretary of Interior or Commerce must develop a “tentative schedule” to develop recovery plans for those already-listed species (p. 19), they are only required to follow the schedule “to the maximum extent practicable” (pp. 19-20). In the absence of any mandate to complete a recovery plan for these species, it is difficult to see how habitats of “special value” will be identified in a timely way.

The Pombo bill also falls short in protecting habitat needed for recovery because it does not actually protect the habitat areas to be identified in the recovery plans. Under the current Act, federal agencies are precluded from taking any action that “adversely modifies” designated critical habitat. The Pombo bill eliminates the “adverse modification” prohibition (p. 10) and provides no replacement mechanism for protecting habitat areas needed for recovery. In fact, it states that recovery plans are non-binding (p. 26) and deletes the Act’s current requirement that recovery plans be implemented (p. 16), thus providing a green light for federal agencies to ignore the need to protect habitat areas identified as having “special value.”

4. Protection      Against Jeopardy Would Be Weakened

Another crucial “safety net” protection of the Endangered Species Act is the duty of federal agencies to ensure that their actions do not jeopardize the continued existence of threatened and endangered species. Pombo’s bill would weaken this protection in at least two significant ways.

<>

 

First, the bill defines “jeopardize the continued existence” as covering only those federal actions that would impede conservation of the species “in the long term” (p. 5). This new definition would open up a loophole allowing destructive federal projects to go forward unimpeded in and around endangered species habitat, causing immediate and tangible harm to the species, based upon a speculative argument that conservation in the long term is assured. For example, if a federal forest plan allows massive timber harvesting, making streams uninhabitable for endangered salmon, this new jeopardy definition could allow the plan to go forward based solely on its stated goal of long-term forest regeneration – even though the plan lacks any significant conservation measures to address the harmful short-term impacts that put the species at risk of extinction.

Second, the bill would force the Service to put blinders on considering whether a species is in jeopardy of extinction. Under the current Act, in evaluating a federal action’s impact on a species, the Service must consider the “baseline” condition of the species at the time the action would be carried out. Thus, if a host of other projects are also negatively affecting the species, the Service must address the cumulative effects of the projects combined in evaluating whether the species is in trouble. The Pombo bill (p. 44) forbids the Service from taking these baseline conditions into account. It thus requires that the Service ignore reality on the ground and invent a fictional environment where the proposed action is the only current threat to the species’ existence.

5. Protection      of Threatened Species Would Be Weakened

Unlike endangered species, species listed as threatened under the Endangered Species Act do not enjoy the prohibitions of the Act’s statutory take prohibition. (ESA § 9). Instead, the Act requires that the Service issue regulations as necessary to provide for the conservation of the species. (ESA § 4(d)). Because of the crucial importance of protecting threatened species from habitat destruction and other forms of take, the Service has issued a default regulation pursuant to ESA § 4(d) extending the take protection to all threatened species except those (a small handful) for whom special rules have been crafted.

The Pombo bill eliminates this common-sense approach to threatened species. Under the Pombo bill, the requirement that the Service issue regulations as necessary to provide for the conservation of the species is repealed (p. 15). The current default rule extending the take protection to all threatened species is apparently also repealed; the bill requires that any regulation issued to protect threatened species must be issued on an individualized basis. Considering the enormous cost that would be entailed in issuing separate regulations for each threatened species, and the repeal of the statutory mandate to do so, the Service is unlikely to restore the necessary protections.

The take protection for threatened species stimulated developers to participate in multi-species habitat conservation planning in southern

California

for the

California

gnatcatcher and numerous other species. This conservation effort, which helped conserve thousands of acres of expensive real estate in a biodiversity hotspot, is often cited as a model for the rest of the country and the world. The Pombo bill would eliminate the Endangered Species Act protections that made large-scale HCPs happen.

6. Miscellaneous      Additional Weakening Provisions

<>

 The Pombo bill has a host of additional provisions that would make the Endangered Species Act’s goal of species recovery more difficult to accomplish. Among them:

• It      calls for new regulations that define “best available science,” allowing      the Secretary of Interior to lock in politically-motivated definition of      this key term rather than allowing scientists to continue to define it      according based on evolving knowledge and information. (P. 3-4).
• It      imposes a new definition of “distinct population segments,” reducing the      likelihood that species will be protected at the population level, even      when such a proactive measure would be the most effective and least costly      conservation strategy. (P. 6).
• It      codifies the “no surprises” rule, which limits the ability to reopen      permits for incidental take of listed species, without including tools,      such as monitoring and adaptive management, that are widely recognized as      necessary to rescue species declining toward extinction. (P. 51.)
• Habitat      destruction is authorized, and consultation duties are waived, for      activities carried out pursuant to newly-created state conservation      agreements. The bill imposes no      mitigation requirements or other minimum standards for these agreements.      (P. 38)
• Numerous      new bureaucratic hurdles are imposed on the Services, despite the already      severe shortage of resources and the likelihood that substantial      appropriations increases will not be forthcoming.

Continue reading

An unnatural disaster: the aftermath of Hurricane Katrina

Here's a must read by some colleagues published through the Center for Progressive Reform!  An unnatural disaster