In America, the majestic Bald Eagle is probably the first species which comes to mind when discussing the Endangered Species Act (ESA). This huge and powerful raptor graces our flag poles, our money and is represented as our country's government seal.
The eagle's plight was a long time in the making and took 40 years under ESA listing (1966 to 2007) to recover.
Prior to being listed as an endangered species (ES), this magnificent raptor was protected under the Migratory Bird Treaty Act of 1918 and later under the Bald and Golden Eagle Protection Act in 1940.
Later, in 1967, the Bald Eagle was ESA listed under the 1966 Endangered Species Protection Act (native species only). It was under this act that the very first species list was adopted based on The Redbook on Rare and Endangered Fish and Wildlife of the United States, published in 1964, which served as the first official document listing species the federal government considered to be in danger of extinction. (cite)
Then in 1969, the 1966 act was amended to include invertebrate species by expanding The Lacey Act's (a 1900 act put into place largely to protect game species) "... ban on interstate commerce to include mammals, reptiles, amphibians, mollusks and crustaceans. Reptiles were added mainly to reduce the rampant poaching of alligators and crocodiles." (cite)) The 1969 Act was also the genesis of CITES, (Convention on International Trade of Endangered Species) of Wild Fauna and Flora which came into force in 1975.
In 1972, the Endangeredd Species Act, written by a group of lawyers and scientists, was passed (355-4 in the house and unanimously in the senate) and signed into law on December 28 of that year by President Nixon. Importantly, the 1972 law incorporates critical habitat into the picture. Habitat loss is one of the major drivers of species threat.
With the 1972 banning of DDT which caused egg shells of birds to thin (causing crushing of the eagles' and other species eggs by nesting adults), and endocrine disruption among other problems, the population of eagles and some other bird species ceased their steep population decline towards extinction and slowly began to stabilize. By 2007, the eagle population was considered stable and recovered and thus removed from the ESA list in 2007.
The eagle's decline was not natural. Hunted (as were most predatory species), taken for the millinary industry, victim of habitat destruction and urbanization and awash in pesticide, the species was in decline BECAUSE of human activity. It took five acts of law (and the banning of DDT) and 107 years to protect the eagle, stop the population decline and yield a stable eagle population. Keep that in mind as we proceed.
Endangered California Condor. Credit: Pacific Southwest Region U.S. Fish
and Wildlife Service from Sacramento, US (Flying California condor. [CC-BY-
2.0], via Wikimedia Commons
Many species didn't fare as well and are still struggling and some are now officially extirpated (extinct) while others are slowly improving or stabilizing. Key to many species' improvement is habitat protection and habitat rehabilitation given habitat loss is probably the number one impact on species population, generally. Additionally, early (versus delayed) action on a declining species can make a huge difference in outcome.
The above history on the ESA wasn't written to bore you to tears. It was written to show the evolution of a law. When the original laws were not enough, stronger more effective laws and increased budgets, eventually, were put in place. Since the ESA was signed into law, several thousand species have made the list including almost 1900 in the United States.
Critics charge that few species have come off the list. About 2% have been removed, but the more important point is that those 1900 species are still around and have not moved into the extinction category. It's a huge job for USFWS. New proposed bills will each suck up more of the agency's never-increasing budget. It would seem, rather than helping endangered species, that the purpose of much of the new proposed language is to make their job harder, forcing them to do more with less and further complicating the collection and assessment of good science. In the end, the species will suffer.
Endangered Least Tern adult and fledgling. Photo by author.
Climate change, habitat destruction (increased consumption, increased population and in some cases--even the effects of trade treaties are involved--etc.), failure to protect, individual actions (shootings and other illegal takings) among other reasons persist in causing species declines and slow recoveries.
Another reason things are not moving more quickly is under-budgeting of programs and agencies and laws proposed with nice sounding names that gut or further complicate or impede success.
Several ESA amendments are being put forth that are absolutely critical to defeat. This is where you come in.
Think about the above section on the Bald Eagle and the time it took to stabilize the eagle's population as you read a small portion of a May 6 transcript (pdf) of the Senate Committee on Environment and Public Works. Several ESA-related bills were introduced to the committee and ESA issues were discussed between committee members and US Fish and Wildlife Director Daniel Ashe.
Senator Markey. And again, I will just list the bills. S. 112 would require the agency to produce separate economic impact analyses for each State and locality affected by critical habitat designations. S. 292, 736, 855 would require the agency to publish massive amounts of raw scientific data. S. 293 would make litigation more cumbersome and delay court decisions. S. 736 would force the agency to review potentially massive amounts of unqualified scientific information. And S. 855 would raise takings compensation above fair market value and require the agency to relist species every five years until recovery. Thos [sic] are massive additional costs that the Fish and Wildlife would have to absorb without any increase in appropriations.
Mr. Ashe. Correct.
Senator Markey. And finally, Director Ashe, last week my colleagues on the other side of the aisle passed out a bill from this committee that would raise barriers to EPA using science to inform its decisions. Today we are considering a bill that would require the Fish and Wildlife Service to use any information, any information submitted to it by State, tribal or county governments in its decisions. Has the current best available science and commercial data standard served the conservation of wildlife well over the years, or do we need to change it?
Mr. Ashe. I think it has served us very well. And we are held accountable. So if a State or local government or tribe provides us with information that represents the best available and we ignore it, I mean, we are held accountable for that by the courts. So I believe that provision has worked miraculously well to make sure that these decisions are science-driven.
Senator Markey. And I agree with you, I think any data would just paralyze you. The best available data allows you to ensure that you are hearing all of those views that actually could substantively impact on the decision which you have to make. I agree with you 100 percent, and I yield back, Mr. Chairman. Thank you.[Link. see p. 86; bolding mine]
Gutting The Endangered Species Act Via States Rights
S. 855, introduced by Senator and presidential candidate Rand Paul, is called the "Endangered Species Management Self-Determination Act". According to a letter signed by 21 major environmental groups in the country that work on ESA issues:
S. 855 (the “Endangered Species Management Self-Determination Act”) completely guts the ESA by leaving the protection of our nation’s imperiled species to politics rather than the best available science. Specifically, the bill decimates the species listing process by requiring state consent and congressional approval before listing, uplisting (i.e., increasing protections), or relisting any species and automatically delisting species after five years, regardless of whether they have recovered. This bill also allows states to block federal protections for species that occur in just one state (e.g., every single imperiled species in Hawaii) and allows state law to trump federal law when it comes to management of federal lands. It also severely undermines enforcement of the ESA by eliminating recovery of legal fees for citizens who succeed in compelling the government to uphold the law and eliminating judicial review of state management of intrastate species. And this is just the tip of the iceberg. In short, if this bill were to become law, it would be equivalent to repealing the ESA. link (pdf)
It should be quite evident that S. 855 is a strictly political bill which cradles states rights issues above good science and species stability. Both the bill's author, Rand Paul, and the current single cosponsor Dean Heller (R-NV) are states rights advocates. Heller praised Cliven Bundy as a patriot, later having to backtrack on his support of Bundy.
Endangered Ridgeway's Rail. Photo by author.
Putting Short Term Economic Impacts Ahead of Species Protection
S. 112 Dean Heller (R-NV) Titled the “Common Sense in Species Protection Act of 2015” (no cosponsors at this time), according to the Center for Biological Diversity, the bill would:
... require(s) the Fish and Wildlife Service to consider short-term economic costs when protecting critical habitat for endangered species and require the agency to exclude areas if the costs were deemed too high. If passed, such a bill would almost certainly reduce habitat protections for plants and animals. Research has shown that species with designated critical habitat are twice as likely to be recovering than those species without designated habitat. source
A more scathing assessment of the bill was offered in the 21-group letter,
here, p. 1, including noting that this bill circumvents
the ESA’s express prohibition against injecting economics into the ESA’s listing decisions.
Diluting Good Science and Putting Species at Risk of Collection and Harm
S. 292 (John Cornyn (R-TX)) is called the 21st Century Endangered Species Transparency Act. The bill has 14 cosponsors, mostly senators from the west, and all are republican with both senators from Idaho, Kansas, Oklahoma and South Dakota cosponsoring.
This bill, while somewhat innocent appearing on its face, is busywork at its finest. When the federal government begins the ESA process their determinations at every step are published in the Federal Register. Here's a sample, for instance, of the various published decision making in my neck of the woods regarding the ESA species Arroyo Toad.
Now, imagine that every single piece of data had to be published. And imagine that the species exact locations are given within the data (as they are; GPS data is required when surveying for a candidate species under a USFWS protocol study or in any study regarding the species when the information is to be used by USFW). The giving of that information to the public (GPS) may put the species even more at risk to collection, trapping or other harm. This is also true, for instance, with registered archaeological sites in my area. They do NOT publish the location due to past experience with collection of important archaeological items.
If a specific game species, for instance, is under consideration for listing, say a type of deer, does it seem wise to list its location? Does it seem wise to list the location of nesting sites for, say, the listed California Condor?
I'm all for transparency, but that isn't really what this is all about. This is about cluttering the process, hamstringing the USFWS, and sucking more increasingly needed funds for purposes other than protection of species while at the same time putting these species in harm's way.
This bill goes hand-in-hand with S. 736 (see below) the purpose of which is to spread out data (science) to force the USFWS to accommodate any old data anyone collects whether that data is collected according to required protocol or not, and regardless of whether methodology is correct. As an example, imagine including the junk science of climate change deniers in with NOAA data.
Arroyo Toad. Photo by Will Flaxington/USFWS. CC-BY-2.0
If you think that isn't a problem, I can tell you, personally, it very much is. When the issue of the Arroyo Toad was ripe in my area--in fact before the Court of Appeals--the court was unable to discern good data from bad (non-protocol) study EVEN THOUGH there were letters in the administrative record from the USFWS on this exact point.
Justices aren't scientists. We lost our case and an entire population of the toad is now extirpated in our area which was once its native range, including within their critical habitat area, to make way for a newer and more modern Roman Catholic Abbey approved by the county board of supervisors who REFUSED to admit the species presence despite documentation from scientists done under accepted protocol. The species remains on the endangered species list. Will it recover? I don't know. But each population that is wiped out due to bad science makes that increasingly unlikely.
Here's what the 21-group letter had to say about the matter:
S. 292 (the “21st Century Endangered Species Transparency Act”) directs the Secretaries of Interior and Commerce to post online the “best scientific and commercial data” underlying each proposed and final determination to list a species. Currently, such regulations, along with a summary of the data, are published in the Federal Register, which is available on the internet. But this bill would greatly expand that requirement by mandating the publication of massive amounts of raw scientific data, increasing the costs of listing by imposing a burden on the Service that it may be unable to meet given its limited resources. Further, S. 292 fails to account for real-world issues surrounding data sharing and thus would likely do more harm than good. For example, the bill ignores situations like poaching in which public disclosure of data could further imperil the species at issue. S. 292 could also undermine scientists’ work by requiring the release of some data before researchers have had their studies peer reviewed and published. Such a requirement would likely result in fewer scientists helping to evaluate species’ status. All told, this bill would only create bureaucratic hurdles that delay species protection and distract from legitimate conservation efforts. link, p. 2
The Center for Biological Diversity's comments are
here.
Endangered Red Knot. Photo credit: Gregory Breese/USFWS. CC-BY-2.0
S. 736 [Mike Enzi, (R-WY) and five cosponsors, again all republican and most from the west.] This bill, called the State, Tribal, and Local Species Transparency Act, would require that scientific data collected from state, tribal or municipal entities be included in the scientific data assessment USFS when studying ESA candidate species. Somewhat innocent on its face, this bill requires that all data--regardless if it is outdated, lacking proper protocol, or just bad or inadequate--be included in the USFWS assessments. As the 21-group letter notes, the bill requires that:
... [a]ll data submitted by a state, tribal, or county government be deemed the “best scientific and commercial data available.” Thus, S. 736 directs federal wildlife agencies to utilize data provided by states, tribes, and counties even if it is not developed by scientists or of very poor quality. The “best scientific and commercial data available” already includes all state, tribal and county data, as long as it actually constitutes the best science available. S. 736 also amends Section 6 of the ESA to direct federal wildlife agencies to provide all data used in listing decisions to states prior to making ESA listing decisions. This requirement is duplicative and unnecessary—Section 4 already requires the Secretaries of Interior and Commerce to give actual notice of any proposed listing determination to any affected state. Moreover, the federal wildlife agencies already work extensively with the states under Section 6 of the Act, which requires that the agencies “cooperate to the maximum extent practicable with the States.” S. 736 does nothing to improve the science used in ESA decisions. To the contrary, this bill would mandate the use of deficient scientific information. (bolding mine)
I think we would agree that data is just data. Some data is biased. Take, for example, the tobacco industry's studies showing that smoking doesn't cause cancer. Or, perhaps, you might consider the data of climate science deniers being used, by law, in NOAA assessments on climate change.
As this is being typed, the National Association of Home Builders has requested a delisting of the California Gnatcatcher, a bird of the coastal sage scrub and an ESA species I am quite familiar with, stating that the science of this distinct species has no merit in distinguishing it from the species as a whole. Interestingly, land developers moving farther and farther into the threatened coastal sage scrub find themselves having to mitigate loss or avoid loss of the species (among others) and obviously have a direct interest in seeing the species delisted.
So no, not all data is alike. Some comes through bad science and some through biased science. Some is just junk.
This legislation also has a firm foot planted in states rights. It seeks to give additional voice to states and local municipalities more interested in development or use of land (including federal lands for mining, logging, grazing etc.) versus species survival. Industry studies can also be used by these entities, and often are in environmental assessments of individual projects via environmental impact reports (EIRs). Having reviewed hundreds of them, I can absolutely tell you that data is generally included or excluded according to what best suits the project proponent.
Endangered California Gnatcatcher. Photo by author.
Pulling the Rug Out From Under Public Advocacy Groups and the Public
S. 293 [John Cornyn (R-TX) and 17 cosponsors, all republican and most from the west including both senators from Idaho, Okalahoma, Kansas and Wyoming]
S. 293 is A bill to amend the Endangered Species Act of 1973 to establish a procedure for approval of certain settlements. I'll let the Center for Biological Diversity, a group which litigates on endangered species, explain:
S. 293, also introduced by Sen. Cornyn, would limit the ability of the Service to settle cases without allowing state governments to intervene and would limit the availability of attorney’s fees available under the Endangered Species Act. By changing the basic judicial rules on when parties can intervene in lawsuits, the Department of Justice will not be able to settle patently unwinnable cases, forcing it to waste taxpayer resources in futile litigation. By slowing down litigation, species will continue to wait in limbo for protection under the Act. link
Who does this amendment most harm? Endangered species and their legal advocates. The public is well served by groups like Center for Biological Diversity, NRDC, National Wildlife Federation and others. Sometimes these groups use outside attorneys in addition to staff attorneys for various reasons. Other times, several groups may sue on the same issue and share the financial and work burden.
On the other side of the litigation table are often enormous corporations or industry associations with billion-dollar annual profits represented by their own firms or conservative foundations such as the Pacific Legal Foundation.
This legislation also has a foot squarely in the states right movement. Consider the response in the 21-group letter:
S. 293 (“To amend the ESA to establish a procedure for approval of certain settlements”) seeks to prevent citizens from enforcing the essential protections of the ESA by subjecting consent decrees and settlements that require agencies to comply with the ESA to an onerous and ill‐defined process of intervention and mediation. This bill would also bar recovery of legal fees otherwise available under the Act, and allow a state or county in which a species resides to veto a federal court’s decision to enforce the law with regard to that species. S. 293 would needlessly delay citizen enforcement of the ESA, waste judicial resources, and empower individuals, local governments, and corporations to perpetrate violations of the ESA. link p.2
I can tell you this much; where I live, my county would absolutely veto any enforcement of ESA decisions. I live in a county politically controlled by home builders and that has been the case for decades.
This insidious bill undermines any notion of species protection in favor of business interests and, ultimately, would prevent the public from any meaningful attempt to protect species through the courts.
What You Can Do
Write. It is particularly important to target senators in your state that are sponsors or co-sponsors of these egregious bills. Each bill I have discussed lists the sponsor of the bill and links to the list of co-sponsors.
While these bills have not yet reached the floor, it is certainly not too early for EVERYONE to write their senators in opposition to the multi-pronged attack against the ESA. The letters do not have to be long, they just have to oppose, by number, each bill. If one bill particularly rankles you, expand your opposition to address that bill.
Here's the summary list (and note I did not address two additional bills with direct connection to three species; I will address them in a subsequent post):
Oppose S. 112, S. 292, S. 293, S. 655, S. 736, and S. 855
The natural world needs your help.
The endangered (western) Snowy Plover. Photo by author.