Last week, Senator Barrasso released a sweeping draft bill to amend the Endangered Species Act (ESA). Not since 2005 has any Congressperson offered such a bold package of ESA reforms. The draft has high and low points, some of which I covered in this Bloomberg News story. It also overlooks many opportunities to recover more endangered species and expand cost-effective conservation.
The draft bill has several reasonable ideas, most of which arose from workshops organized by the Western Governors’ Association, which I and many other conservationists attended. For example, the bill would create a system for the federal government to publicly commend state agencies for outstanding performance in conserving endangered species. It’s hard to argue against this occasional pat on the back.
More importantly, the draft would codify the U.S. Fish and Wildlife Service’s seven-year work plan for managing its species listing program. Because the agency has never had enough funding to make listing decisions on time, challenging those overdue decisions is like shooting fish in a barrel. Codifying the agency’s work plan is one way to resolve this issue by giving the agency a reasonable timeframe to decide whether to list a species. The draft bill would also require the agency to propose a budget for implementing the work plan. If Congress choose not to fully fund that budget, the public can more easily hold Congress accountable than under the current system.
The draft bill also establishes an aggressive timeframe for both the Fish and Wildlife Service and the National Marine Fisheries Service to delist or downlist species that qualify for those actions. Within 16 months of determining that a species has met its criteria for downlisting or delisting—which now typically happens during an extensive 5-year review for every species—the agencies would need to finalize any regulation to carry out that status change. An aggressive deadline would likely prompt the agencies to develop even more efficient ways to manage the listing program. In fact, this is exactly what happened when the Fish and Wildlife Service entered into an ambitious court settlement in 2011 to resolve over 250 overdue listing decisions. As most college students know, there’s nothing like an approaching deadline to focus the mind and work efficiently.
The draft bill has many shortcomings, some of which could cripple the ESA. A major problem is the legion of red tape and bureaucracy it would create. For example, the Services would need do the following: submit written justification if any final regulation is “in conflict” with comments submitted by a state; give states special treatment by consulting with them to the “maximum extent practicable”; and consult with each state and local government when federal agencies enter into a legal settlement that affects the state. Imagine what that consultation process would look like for the monarch butterfly—there are over 3,000 U.S. counties and 39,000 cities that federal agencies would have to consult with! And the bureaucracy is two-sided. State legislatures vastly underfund state wildlife agencies—typically only about 10 percent of an agency’s budget comes from the state general fund, with the rest covered by federal taxpayers and other national taxes and fees. So under the draft bill, the federal government would likely end up needing to fund states to complete all the new paperwork the bill puts on their shoulders too. Similarly, counties and cities rarely have wildlife or habitat specialists on staff. I recognize that states should have meaningful opportunities to engage with federal agencies, but the draft bill goes overboard with processes that do little or nothing for conservation and will likely slow species recovery.
Science is one foundation of good conservation, but the draft bill stacks the deck in favor of state data and analysis, without regard to the quality of that data compared to other sources of science. For example, comments provided by states would be given “greater weight” than comments submitted by anyone else. Period. Sometimes, states do have the best data on a species. But many other times, they don’t.
There many other bad ideas in the bill, including prohibiting public comments on changes to recovery goals, suspending for five years any litigation challenging a delisting decision, and creating a system that would enable retribution against Service employees that a state agency dislikes.
A Better Bill
Senator Barrasso could rework the draft bill into one that encourages genuine collaboration between states and the federal government, and that speeds up recovery and prevents more extinctions. For example, rather than elevating state science over all other science, the bill could direct the Services to create policy that explains how they will consider and lend appropriate weight to all sources of science. Using a weight-of-evidence framework is one approach, which would allow states to ensure that their comments were not ignored or undervalued. Likewise, the Services could adopt far better ways to manage and communicate how they address scientific uncertainty in their decisions. Many health agencies already use these more transparent approaches, whereas federal wildlife agencies still largely rely on their “best professional judgment.”
Another improvement is to rethink the entire process of drafting and updating recovery plans. If we want more recoveries, we need to expedite recovery planning, not complicate it with more process and drama. The Fish and Wildlife Service recently developed the Recovery Planning and Implementation approach to do just that and to make recovery documents more useful and easily updatable. The draft bill could have followed that lead. For example, rather than allowing recovery teams to change recovery criteria by unanimous vote and without public comment, the draft should have allowed the Services to modify recovery strategies and actions using a similar streamlined approach. Let me illustrate. Consider a recovery plan that sets a goal of “maintaining at least three populations of 500 individuals” and that includes an action of “monitoring each population annually.” I can’t support giving a recovery team permission to drop the goal from three populations to one population without letting the public know and comment about the change. But if the team wanted to switch from annual to biannual monitoring, or update any of the hundreds of other actions in most recovery plans, then it shouldn’t have to ask for public comment on each of those. The problem is that right now, the ESA requires these recovery actions to go through public review, which can be time-consuming and costly. The result is hundreds of wildly outdated recovery plans. The draft bill could have also required the Services to finalize “recovery outlines” within six-months of listing, which could guide recovery actions for years while the agencies find the time and money to develop a full-blown recovery plan.
The Politics of ESA Reform
Why even try to amend the ESA? Some conservationists argue that any needed improvements can occur through regulatory reform. Although that’s often true in theory, it’s rarely true in practice. Anyone who has worked extensively on regulatory reform knows that most federal agencies lack the bandwidth and cultural will to propose bold reforms—to innovate. America’s stuck in a 25-year ESA stalemate, with an act that doesn’t work as well as it could, agencies unable or unwilling to use their discretion to innovate, and a fractured Congress that has so far lacked the cohesion to move almost any ESA reform idea forward.
I’ve described just some of the ways to fix the defects in the draft bill and make it useful to conservation, but there are many other sections that need improvement. If Senator Barrasso and the Senate Environment and Public Works Committee were to significantly amend this draft, they could probably get it to a better place. In doing so, they probably wouldn’t win over many environmental organizations, but they might build a version 2.0 that would actually reduce extinctions and speed recovery, with states playing a bigger and more successful role in both.