The Endangered Species Act at 30

December 28th marks the 30th anniversary of the Endangered Species Act, one of our most important – and, unfortunately controversial – environmental laws. The Act’s 30 years have brought many successes, but many challenges as well.

Today, Washington is a place of partisan turmoil. The days of true, bipartisan leadership all but gone. But it wasn’t always like this ... and it wasn’t like this when the ESA became law.

The year 1973 occurred in an era when the country was awakening to the mounting environmental threats we had been visiting upon ourselves. Rapid population growth, excessive development, and unsustainable exploitation of our natural resources were all taking their toll.

Fortunately this awakening produced a period of great environmental legislation. In fact, almost all of our major environmental protection laws were enacted during this time. And – extraordinary by today’s standards – all were enacted in great displays of political bipartisanship.

The ESA enjoyed overwhelming support from Democrats and Republicans and from Congress and the White House. The Nixon administration even proposed its own version of the ESA and actively worked with Democratic committee chairmen to draft the final product.

On December 20, 1973, the final bill–fundamentally a version of Rep. John Dingell’s legislation, but strengthened through negotiations with the Nixon White House – passed the House by a vote of 355-4. The Senate had earlier passed its own version 92-0.

It is fashionable among some ESA opponents to claim that the Act was never intended to deal with ALL endangered species and their habitats – that it was primarily intended only to help save a handful of charismatic species.

But such claims have no basis in reality. Among other things, they ignore the fact the 1973 Act was a successor to two previous endangered species laws, passed in 1966 and 1969, and that its whole purpose was to make up for the superficial approaches taken in those earlier laws.

And if the plain language of the Act made clear what it was about, the floor debates emphasized it.

Said Sen. Harrison Williams, who managed the Senate bill: “Each species provides a service to its environment; each species is a part of an immensely complicated ecological organization, the stability of which rests on the health of its components. ...To permit the extinction of any species which contributes to the support of this structure without knowledge of the cost or benefits of such extinction is to carelessly tamper with the health of the structure itself.”

Indeed, the bipartisan authors of the ESA were prescient in their concerns. For in the decades that followed, the science demonstrating the need for strong endangered species protection has only grown stronger.

In 1987, after assuming office, the first President Bush asked his own, 39-member, blue-ribbon Science Advisory Board, to advise him on the comparative seriousness of the world’s environmental problems. The Board’s 1990 report noted that there is a worldwide scientific consensus that loss of species and loss of natural habitat – along with ozone depletion and global warming – pose the most serious long-term risks to human welfare.

The reason? As the authors of the 1973 ESA had suggested, each species, existing in its own healthy ecosystem, plays a role in maintaining the web of life. It is this web that cleanses and regulates our air and water, provides our food and medicine, and generally supports life as we know it. And, unlike other serious problems, species and habitat loss is generally irreversible.

Scientists understand this better now than in 1973, to be sure, which is why the ESA was so visionary when it was crafted. And its fundamental policy underpinnings remain just as valid today as they were 30 years ago.

Reduced to its basic ingredients, the Act says simply that the federal government must identify species threatened with extinction, identify habitat they need to survive, and help protect both accordingly. In doing so, the Act works to ensure the basic health of our natural ecosystems.

Political opponents of the ESA have taken to claiming that the Act is “broken” because, though we’ve had the Act for three decades, species are still being added to the list, while few come off.

Indeed, the bipartisan authors of the ESA were prescient in their concerns. For in the decades that followed, the science demonstrating the need for strong endangered species protection has only grown stronger.

I understand the political motivations behind this argument, but it is disingenuous.

Among other things, it completely ignores the fact that the ESA was not written to prevent species from becoming endangered. It is not a preventive health care system – it is a species emergency room – the place where species go when they’re already on the brink of extinction – when the conservation measures that should prevent a species from becoming endangered have failed.

By that measurement, the accomplishments of the Act vastly outnumber the occasional anecdotal stories of development projects delayed and modified.

From wolves in Yellowstone to manatees in Florida, and from sea otters in California to coastal birds on New England’s shores, there is no question that the Act has made a big difference, reversing trends that threatened species’ existence.

Helping the recovery of the American bald eagle was a signature accomplishment of the ESA – as was recovery of the peregrine falcon and the brown pelican. The American alligator too. Because of the ESA, black-footed ferrets and California condors are being reintroduced to the wild. And across the country, thousands of decisions that significantly impact living nature have been made less damaging because of the ESA.

Please understand: We do not claim that the ESA is perfect. No law is. I would gladly engage in a good faith discussion about how the law itself, and its implementation, could be improved for all stakeholders. To be sure, we should be focusing on ways to get ahead of the endangered species problem, such as providing incentives to landowners to care for the land in a manner that better preserves its ecological health. But with the Act’s opponents circling like vultures, opening it up for revision at this time is probably not wise.

Indeed, while the ESA has faced its share of political problems since the early 1990s, never have the assaults been as relentless and all-encompassing as under our current president.

The Bush administration’s attack on the ESA started their first week in office, when they immediately froze all pending ESA regulations, halted all listing of new species, and blocked all pending designations of critical habitat for listed species.

They followed this by naming to the highest conservation positions in the administration a virtual rogue’s gallery of former special interest industry lobbyists, all with records of fighting vigorously against the ESA.

With these allies in place, the Bush administration then embarked upon a hostile campaign to eviscerate the ESA – to severely weaken protections for endangered species across the board.

Under President Bush, the number of species being added to the ESA list has plummeted. Indeed, this president has an annual listing rate of only eight species per year since taking office. Reagan listed almost 32 species per year while in office. The President’s father listed a full 58 per year. Clinton? Sixty-five. Moreover, every single one of the Bush administration’s listings has come as a result of court orders – not one listing has been voluntary.

Beyond their refusal to list species, the administration even asked Congress to eliminate a citizen’s right to petition for listing, seeking to make all listings discretionary under Interior Secretary Gale Norton. Fortunately the Congress refused the request.

Not content to thwart the ESA’s workings in the U.S., the Bush administration is also proposing to relax policy on international trade in endangered species. Proposed Bush rules would allow U.S. trophy hunters and wildlife traders to import more endangered species and body parts with very little oversight – effectively turning them into commodities.

And, thanks to the President, the Forest Service can now implement massive fire management plans without assessing their impact on endangered species. Soon the EPA will be able to okay the use of any pesticide without consulting agency experts about its effects on endangered wildlife. And, in one of the most significant rollbacks of ESA protections ever, the Department of Defense has been exempted from ESA requirements for military training exercises – this despite GAO studies showing the ESA does not hamper military readiness or national security.

Put simply, the ESA is a law the Bush administration simply does not want to obey.

And nowhere is that more apparent than in our new report, “Sabotaging the Endangered Species Act: How the Bush Administration Uses the Judicial System to Undermine Wildlife Protections.”

The report, prepared with the assistance of the Vermont Law School, examines the administration’s judicial actions with regard to the ESA. It looks at their arguments before the federal courts and their record of responding to court orders. It reviews the administration’s use of a manufactured funding crisis to skirt the law, and unveils the sweetheart legal settlements with industry that undermine species protection.

Overall, the report paints a very disturbing picture of an administration pursuing a deliberate strategy to destroy the single most important law we have protecting species, habitat, and biodiversity.

The report’s findings show that the Bush administration – especially the Department of the Interior under Secretary Gale Norton – has willfully and knowingly, on at least 76 occasions, taken actions that nearly three decades of ESA court rulings told them were almost certain to be found illegal. Not surprisingly, the administration was ultimately found guilty of breaking the law in 90 percent of those cases – a huge percentage given the high degree of deference the courts employ when considering federal agency decisions.

Put another way, I believe that more than twice per month, from January 2001 through October 2003, Bush administration officials knowingly violated one of our most important environmental protection laws.

In some cases, they even purposefully violated direct court orders. Said one federal judge: The position of the Interior Department is “just ludicrous and preposterous. ... The Federal Government is not above the law.” Said another: “(Government) litigants may not defy court orders because their commands are not to the litigants’ liking.” Yet another judge went directly to the politics behind the case: “I think this has something to do with the change of administrations. I think that is all that’s going on here and that’s not the way government should be working.”

Obviously that’s not how government should work. So why would the administration repeatedly break one of our most important environmental laws?

Look at who benefits. The overwhelming majority of beneficiaries of the administration’s lawbreaking are corporations or other interests that have been campaign contributors and supporters of the Bush presidential campaign. Logging companies, road-builders, developers – supporters of the President – all benefit from his administration’s anti-ESA approach to administering the Act.

Here is the pattern I see: When corporate special interests seek help to get around the ESA, the administration tends to grant it, even if doing so violates the Act. If someone brings a lawsuit, the administration stalls the court proceedings as long as possible, appeals any adverse ruling, and even ignores direct court orders. When finally – and predictably – found guilty of breaking the law, the administration uses taxpayer money to pay the penalty (usually just the winning plaintiff’s legal costs). Next, the administration cries poverty as an excuse for not implementing or enforcing the ESA elsewhere...possibly benefitting yet another special interest supporter.

The report gives many examples of this strategy at work, but allow me to summarize one.

In a Florida manatee case, the federal government was required by a direct federal court order to help the endangered manatee by designating new refuges by September 2001. However, new refuges were vigorously opposed by the recreational motor boat industry in Florida which was a big supporter of both the president and his brother, Florida Governor Jeb Bush, who faced re-election in November, 2002.

On May 29, 2001, Governor Bush sent a letter to the Department of the Interior urging them not to designate the refuges, even though they had been ordered to do so by a federal court.

President Bush’s administration ignored the court order and delayed publication by four months past its due date, a preliminary and incomplete list of refuges. It also announced that it would delay until December 2002 (more than a full year after the court-ordered deadline and, conveniently, a month after the Florida gubernatorial election ) its formal designation of most sites.

The federal judge who ruled – repeatedly – against the Bush administration in this case, asked rhetorically: “What gives the Federal Government the right unilaterally to decide what agreements it will comply with and what it won’t comply with?” The court then ordered Interior Secretary Norton to show cause why she should not be held in contempt.

During the time the Bush administration took to comply with the court’s order, motor boat deaths of endangered manatees rose to an all-time high, with more than 71 killed and numerous others injured.

Ultimately, the Bush administration had to pay hundreds of thousands of dollars in legal costs incurred by the Save the Manatee Club and its fellow plaintiffs as a result of the delay.

This is just one example, but the pattern is similar across the 68 cases in which I believe this administration has knowingly violated the law. I would note, incidentally, that an earlier Defenders report that examined the administration’s behavior under the National Forest Management Act, shows that the administration almost certainly and knowingly violated that forest law 28 times in only 24 months. My guess is that further examination of the nation’s other major environmental protection laws would reveal the same thing.

In addition to ESA violations, our report also shows that the administration has been using a self-induced budget crisis to avoid its obligations. And here too we find an established pattern: The administration refuses to follow a court order; then, just before the deadline expires, it claims it cannot be compelled to comply due to a lack of funds.

Yet, the Bush administration refuses to request more funds for the ESA, even when invited to do so by Congress. For the current fiscal year, the President’s total request for Department of the Interior implementation of the ESA was only $138 million. That is a mere one tenth of one percent of the fiscal 2004 tax cut enacted earlier this year at the President’s insistence.

Fortunately, the administration’s cry of poverty has generally been denounced by federal judges. Said one: “[Administration] arguments cannot be characterized as anything but an impermissible, unconstitutional intrusion on the judicial power to enforce existing law. ... the United States may not evade the law by simply failing to appropriate enough money to comply with it.”

Finally, our report reveals an amazing duplicity in the Bush administration’s ESA actions.

When ordered to protect a species, it ignores the court’s directive. But when faced with lawsuits seeking to remove a species’ protections, it jumps at the opportunity – especially when the suit is brought by industry supporters.

Indeed, six of the seven de-listing or down-listing petitions the administration has acted upon have been industry petitions. De-listing petitions, they act on voluntarily. Listing petitions? It can take several direct court orders to get them to move.

What’s more, in response to industry lawsuits, the administration has agreed to revoke designated habitat critical to the survival of 29 listed species. Often the administration simply refuses to defend in court the government’s previous habitat designation. Sometimes the capitulation comes in the form of sweetheart settlements that largely conform to industry wishes. Amazingly, in many of these cases, the only aggressive action ever taken by the administration comes when it opposes citizen groups trying to intervene to protect government decisions the government itself refuses to defend.

Overall, our report paints a very troubling picture. It provides us all with a vivid portrait of a president working feverishly – on many fronts, legal and illegal – to undermine one of our most important environmental laws.

When citizens turn to the courts to uphold the ESA, the administration ducks and dodges, even ignoring the law and the courts that enforce it. And species protections crumble by the wayside.

When industry and political supporters seek to maneuver around the ESA – to finally open that forest, that river, that fragile plain to development – the administration eagerly throws in the towel, strips key protections and sacrifices needed habitat. And again, species suffer.

Knowing full well that the ESA enjoys broad public support, the Bush administration seeks to accomplish with stealth that which it cannot accomplish with legislation in Congress: the effective evisceration of the law.

The bigger picture of why we need the ESA is obviously lost on the president as special interest checks roll in. Clearly he doesn’t understand that the ESA was crafted to protect all of us, and especially our children and future generations, so that they can enjoy a world as rich and diverse as the one we share today. It was crafted to help ensure that we don’t sacrifice today’s bounty at the expense of tomorrow’s needs. To help ensure the strength and vitality of the biological and ecological systems that support all life.

President Bush does not understand that the ESA was not crafted to block progress, but to ensure it – to ensure that, as we move forward, essential components of our ecosystem are not cast aside – just as the Act’s original authors – in both parties, in the House and the Senate, and in the White House and Congress – intended.

The ESA is not an optional law. It says that the protection of endangered species is the charge of all Presidents. It is a charge this president is rejecting at great cost, not only to the endangered species of the world, but to all its human inhabitants, current and future, as well.

Thank you.