Capital Press Editorial

September 17, 2010

For the past year and a half, Congress and the Obama administration have become the Mr. Fix-its of politics. They've strapped on their legislative toolbelts and gone to work in the name of "change."

They fixed health care -- even though it wasn't needed -- and they fixed Wall Street just in time for those fat executive bonus checks to go out.

But one law that is profoundly broken -- and has been since Richard Nixon signed it in 1973 -- has been totally ignored: the Endangered Species Act.

The ESA doesn't accomplish its stated goal -- helping to bring back species from the brink of extinction. Since it was passed, 25 species of plants and animals have been delisted -- most because they were put there by mistake. In all 1,375 plants and animals have been put on the list as threatened or endangered.

But not helping endangered species is the least of the act's shortcomings.

The ESA is the Gordian knot of laws. It creates problems that cannot be solved. In the Klamath Basin, the Columbia and Snake rivers, the Sacramento Delta, and the forests, rangeland and farms of the West environmental extremists use the ESA as a blunt legal instrument to stop economic activity.

Though the excuse used by the extremists and their lawyers is to "save" salmon, suckers, smelt, wolves, owls, sage grouse and worms, the real, albeit unstated, goal is to stop economic activity they don't support or to shake the federal money tree, or both.

All Americans have a stake in the ESA. Billions of taxpayer dollars and billions more of private dollars are spent in the legal and regulatory Kabuki dance whose goal is not to preserve wildlife and plants but to keep the dance going. Environmental lawyers get money from the federal government if they win, so the incentive is to keep suing, appealing and suing some more.

Here's just a single example. Last week, we published an analysis of how a review of 54 commonly used pesticides is proceeding. It should be noted that this review resulted from an environmental lawsuit and is nine years old -- more than three times longer than the lifespan of the fish it was supposed to save.

The main players in the dance are the Environmental Protection Agency and the National Marine Fisheries Service. They are supposed to "consult" with one another.

Here's how that works: A letter EPA wrote to NMFS in April 2009 gets to the crux of the argument over how pesticides have affected endangered fish.

"Use of these pesticides has been ongoing for decades," EPA states in the letter. "If the threatened status of the (salmon) species has not changed appreciably during this considerable period, it would appear to provide some indication that use of these pesticides are not appreciably reducing the likelihood of both survival and recovery of these (salmon species) ... yet (NMFS's) Draft (biological opinion) does not seem to take into account this empirical evidence."

In other words, the EPA states, there exists no evidence the pesticides are further harming fish, so why should more restrictions be needed?

But the dance still continues.

Even after that letter questioned the basis of NMFS's logic, the EPA then did an about-face and supported more buffer zones along rivers and streams.

The result of this "consulting" could all but do away with the use of some important pesticides in the West. In the end, pesticide use would be restricted on 61 percent of Washington state's total land area, 55 percent of Oregon, 32 percent of California and 26 percent of Idaho.

Some folks argue that their farms are organic, sustainable, salmon-friendly or otherwise environmentally pure and don't rely on pesticides and that the ESA has no bearing on them. When irrigation water is cut off in California, the Klamath Basin, the Columbia Basin or along the Snake River because of the ESA, the judges or resource managers will not care what kind of farms are affected. All farmers and ranchers will be cut off.

Time and time again, the ESA is at the heart of litigation and regulation of natural resource industries -- ranchers looking for a place to graze cattle, timber operators looking for a way to produce building supplies and farmers looking for a way to grow and irrigate their crops. All these folks want is to stay in business.

The result of the ESA has been not the salvation of endangered and threatened species so much as the creation of a legal and regulatory process based on the premise that, until all economic activity not sanctioned by the environmental fringe groups ceases, they will continue to use the ESA to batter all of us into submission.

The Endangered Species Act does not protect species. What it does is costs the federal, state and local governments billions of dollars, hobbles the economy and has either decimated or threatens to decimate the livelihoods of ranchers, farmers, loggers and other Americans.

If Congress and this administration want to fix something, they should look where the problem is greatest: the Endangered Species Act.