A Wyoming senator’s proposal to amend the Endangered Species Act is both being heralded as an overdue attempt to modernize the 45-year-old legislation and as a partisan attempt to take control of conservation efforts from scientists and citizens in favor of industry.
Republican Sen. John Barrasso, chairman of the Senate Committee on Environment and Public Works, says he introduced a discussion draft of legislation called the Endangered Species Act (ESA) Amendments of 2018 to begin debate in the Senate on how the federal government works with states to save threatened and endangered wildlife species.
“This draft legislation will increase state and local input and improve transparency in the listing process. It will promote the recovery of species and allow local economies to flourish,” Barrasso said in announcing the draft last week.
Barrasso’s draft closely follows recommendations made by Western Governors’ Association (WGA) following a three-year study initiated by Wyoming Gov. Matt Mead.
In releasing his draft on July 2, Barrasso thanked Mead for his leadership on the topic.
“Wyoming continues to be a leader of species protection and conservation,” Barrasso said in a statement. “I will work with anyone who is committed to help the Endangered Species Act reach its conservation potential.”
The Western Governors’ Association reached out to Barrasso asking their recommendations be considered in developing legislation, said David Wilms, policy adviser for Mead.
The first Senate hearing on the draft bill is set for Tuesday morning and Mead will testify, according to Barrasso’s committee staff.
“We expect Mead to be favorable [to the bill] and we’re hoping to use the hearing as a formal launch to achieve meaningful modernization for species and people,” the staff member said. Barrasso was unavailable for interview Tuesday and all background information provided in an afternoon phone call was required to be attributed generically to the staff.
“It’s our priority to modernize the act,” said the staffer. “We immediately looked to the WGA, which had already done three years of work on stakeholder input looking for common ground with representatives including agriculture, energy, home development, environment, and conservation.”
Barrasso hopes to draw on success from the bipartisan association of governors — 12 Republicans, one independent, and six Democrats — to attract broad support in the Senate.
The Western Governor’s Assocation sent a letter of general support signed by Hawaii Gov. David Ige, a Democrat, and South Dakota Gov. Dennis Daugaard, a Republican, back in February. The association, made up of governors from 19 states and three U.S. territories, needed a supermajority to approve the letter; the vote count on the letter was unavailable at press time.
Wilms pointed out that, by the rules of the WGA, the letter only supported specific measures in the draft bill that came from the association’s recommendations.
Barrasso’s draft bill moves many of the WGA recommendations to a national platform. Reaction to the proposed legislation has been mixed.
Wide range of responses
In support of Barrasso’s efforts, more than 60 organizations, associations, corporations and government entities have sent letters in favor of the amendments — including a statement of “strong support” from the Wyoming Stockgrowers Association. The Wyoming Game and Fish Department, was one of four Wyoming governmental agencies to show support.
“Wyoming has been a leader in conserving and recovering imperiled species for many decades. Black-footed ferret and grizzly bear recovery are hallmarks of our success and commitment to responsibly and collaboratively recover those native species that become threatened or endangered,” Game and Fish Director Scott Talbot said in a June 7 letter. “We are also proud of our proactive work to avert ESA listing in our conservation of the Greater Sage Grouse. Wyoming’s engagement in these and other endangered species initiatives places our leaders on firm ground to speak with authority and credibility on ESA issues.”
Meanwhile, reaction and condemnation of the draft have been swift by environmental and conservation organizations.
“This partisan bill is all about politics, at the expense of sound science and the species that depend on it for survival. It is a reckless power grab designed to wrest away authority from scientists and wildlife experts and give it to states that lack the resources — and sometimes the political will — needed to save wildlife from extinction,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife.
Bob Dreher, senior vice-president for conservation for the group, called the draft “profoundly anti-science.” At issue for opponents are perceived veto powers given to states to stop reintroductions, changes in plans and remove scientists from projects, shielding efforts from judicial review for five to seven years after delisting and making it unrealistically hard to list a species by forcing scientists to have a full recovery plan in place prior to listing.
“This seems to be all about shuffling the deck chairs on the Titanic,” Dreher said. “The primary focus seems to be states taking the lead in recovery efforts. There are already enormous opportunities for states to be full partners.”
Trusting states in taking leading roles in recovery efforts makes Dreher nervous.
“The only reason they are endangered is they were under state authority,” he said.
Wilms counters opponents by pointing out the Secretary of Interior retains full authority throughout the entire process.
“Nothing in the discussion draft erodes the authority of the secretary,” Wilms said. “It helps to go back and look at the original intent of the act,” which was to include states in leading roles for recovery efforts, Wilms opined.
A long history
The battle over the act has been raging for the past decade. There have been more than 300 bills introduced to limit, amend or even repeal the ESA in the past 10 years alone. All three of Wyoming’s U.S. senators and representatives have called for changes to the controversial legislation, with recent bills introduced by both Barrasso and Sen. Mike Enzi, R-Wyo. U.S. Rep. Liz Cheney, R-Wyo., has been a vocal proponent of change to the ESA in her first term.
“You get to the point where you wonder if [environmentalists] want no human use of public lands at all. I think they are saying if the human use of land comes into conflict with the wildlife and if they have to choose, they’d pick wildlife over humans,” Cheney said in a February interview. “[The ESA] is a law that may have been put in place with good intentions, but it’s been abused and has unintended consequences. Environmental groups will fight hard because it gives them a hook and they’re not going to want to see changes that diminish their ability to bring suit.”
The vast majority of the previous proposed amendments and challenges to the ESA (94 percent) have been proposed by Republican members of Congress. It has made a long circle considering the 1973 Act unanimously passed by the Senate during the Richard M. Nixon administration. At the historic signing, Nixon was passionate about the new law.
“At a time when Americans are more concerned than ever with conserving our natural resources, this legislation provides the federal government with needed authority to protect an irreplaceable part of our national heritage — threatened wildlife,” Nixon said. “This important measure grants the government both the authority to make early identification of endangered species and the means to act quickly and thoroughly to save them from extinction.”
As a draft, Barrasso’s proposal attempts to bridge a gap that has prevented changing the ESA since its inception in 1973. While there have been hundreds of attempts, Republicans have yet to find the combination to get a bill passed.
“It’s important to note this was presented as a discussion draft instead of a bill. It’s a testament to the willingness to take all opinions into consideration,” Wilms said
Barrasso’s Senate Committee staff pointed out that the U.S. Constitution has been amended more recently than the ESA. The 27th Amendment was ratified in 1992 — the same year Congress failed to reauthorize the ESA — though it had been proposed more than 200 years earlier, in 1789.
Barrasso’s staff hopes there aren’t much more than tweaks to the draft and that ratification is expedited while they have a favorable president in the White House and Republican numbers in the House and Senate. In attempting to find a pathway to a bipartisan bill, they will need to convince at least eight Democrats (if all Republicans are on board) to vote for the amendments to avoid a filibuster.
As for 15 of the 19 governors in the WGA, the debate on the proposed amendments could be waged long after their terms as governor; eight have reached their term limit (including Mead) and the other seven are being challenged during the 2018 election season.
“I’d be surprised if this happens quickly,” Wilms said.