Re-Origin of the Species
(Act)
September 29, 2005; Page A18
Congress has
been promising to respond to the Supreme Court's
Kelo decision, which gave government new
power to seize private property. It could start
by passing California Congressman Richard
Pombo's reform of the Endangered Species Act.
Say what you
will about that law's good intentions, its
32-year history has shown it to be a failure. Of
the nearly 1,300 species on the endangered list,
the act has "recovered" 10 -- a success rate of
less than 1%. This is in part because the law,
like so much of our command-and-control
environmental legislation, is mired in
litigation and red tape.
Mr. Pombo's
reform, the product of years of hearings and
scientific research, would put the focus on
recovery while also giving local communities an
incentive to cooperate with federal rules. More
than 90% of all endangered species have habitats
on private property. Yet under current law,
landowners unlucky enough to discover such a
critter lose the use of their land and face
crippling regulations, costs and uncertainty.
It's no wonder that most landowners prefer to
"shoot, shovel, and shut up."
Under the
Pombo bill, property owners who discover that
they host an endangered species can apply to the
Interior Department for permission to use their
land for private purposes. If they do not
receive an answer within 180 days, they can
proceed. If Interior insists on certain habitat
protections, landowners would then be entitled
to conservation grants. And if the government
forbids land use, owners would be compensated.
By putting all taxpayers on the hook, the
government would finally have to set priorities
and make better decisions about which species to
protect and how to do so.
The current
law has also allowed decisions about species to
be made based on "best available" science --
even if what's available isn't worth the petri
dish it was performed in. Such flimsy standards
have led to serious errors, such as the
unnecessary 2001 shutdown of water to farmers in
Klamath, Oregon on behalf of sucker fish. Less
than a year after the cutoff, the National
Academy of Sciences peer-reviewed the so-called
biology behind Klamath and said there was "no
sound scientific basis" for stopping the water.
The new bill emphasizes peer-reviewed studies
and empirical data.
Another
improvement is the Pombo bill's elimination of
what is known as "critical habitat." In the
current regime, species listings are often
accompanied by rules setting thousands of acres
off limits to aid in "recovery." Environmental
groups abuse these designations by litigating to
make huge swathes of private land untouchable.
The Pombo bill takes the focus off acreage and
puts it on real recovery plans, requiring that
every species listing be accompanied by a
concrete strategy.
Passing this
reform will be a knock-down political fight,
though not along the usual partisan lines. Its
supporters include Republicans and Democrats
from rural and suburban areas whose constituents
have borne the brunt of the law's unintended
consequences. California Democrat Dennis Cardoza
is one of the more than 70 co-sponsors of the
bill, and the early betting is that as many as
40 Democrats will follow his lead. The
legislation recently passed the Resources
Committee, 26-12.
Opponents
include urban Members, many of whom represent
silk-stocking districts whose main species are
anything but endangered. The environmental lobby
is already claiming the Pombo bill "guts" the
species act, but don't believe it. What these
interest groups really care about is losing the
immense leverage that the current law has given
them, in the courts and in Washington, to
interfere with the property rights of
middle-class Americans.
