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Selected Provisions in House Bill That Weaken the ESA
as approved by U.S. House 9/29/05*

DECREASING LISTINGS

The legislation makes listing of distinct populations more difficult:

  • Wildlife agencies are directed to list distinct populations “sparingly”;
  • Current distinct populations that may not have been listed if these hurdles had existed include the Grizzly Bear, Gray Wolf, and Bald Eagle.

In addition, scientific input into listing decisions is crucial, and the bill politicizes science for all listing determinations (see below).

POLITICIZING, SKEWING, AND HAMPERING SCIENCE

While it requires use of the best scientific and commercial information in places, the current Endangered Species Act has never contained a definition of science or best science for good reason – that’s up to the scientific community, and scientific methods change and evolve. Contrary to this, H.R. 3824 would insert a definition of “best available scientific data” into the law: “scientific data, regardless of source, that are available to the Secretary at the time of a decision or action . . . and that the Secretary determines are the most accurate, reliable, and relevant.”

  • This definition gives a political appointee, the Secretary of Interior, a great deal of discretion in determining what types of data are used. By changing the endangered species statute in this way, the possibility increases that the Secretary will ignore important science (e.g., about whether a species should be listed) because there appears to be no, or lessened, legal recourse to question the Secretary’s action.
  • This could undermine many parts of the ESA: Sections of H.R. 3824 pertaining to listing of species, federal agency consultations, and drafting of recovery plans require that this politicized and perhaps skewed “best available scientific data” inform decisions.

The bill’s new definition section pertaining to “best available scientific data” also explicitly directs the Secretary to “assure”:

  • “data consists of empirical data” and
  • “data is found in sources that have been subject to peer review by qualified individuals recommended by the National Academy of Sciences.”
  • In commenting on H.R. 1662, a bill last Congress that somewhat similarly skewed and weakened science provisions of the ESA, the Ecological Society of America said that “[t]here is no scientific justification for giving greater weight to empirical data over modeling results.”
  • The Society also said that “[a]dditional peer review requirements are an unnecessary burden to the functioning of the ESA.” (Currently the requirements for public comment already provide an avenue for peer review.)

This raises many troubling questions. For example, perhaps the requirement to “assure” that data be “empirical” could be used by the Secretary to direct that new research be done. Yet it might not be physically possible to gather more empirical data. Do protective actions then grind to a halt?

A discussion about H.R. 3824’s impact on science and scientists in recovery planning is below.

ELIMINATING CRITICAL HABITAT DESIGNATIONS

H.R. 3824 eliminates the current section of the Endangered Species Act that calls for designation of critical habitat (areas identified for the “conservation” (i.e., recovery) of the species). H.R. 3824 does say that recovery plans should include “an identification of those specific areas that are of special value to the conservation of the species,” but there is no definition of “special value” -- and, as discussed below, H.R. 3824’s composition of recovery plan teams is of concern.

DECREASING AND WEAKENING CONSULTATIONS

Currently, the Endangered Species Act requires that federal wildlife agencies review projects that other federal agencies are pursuing (if the projects are likely to affect endangered or threatened species). This is essential independent review that many have called one of the most effective parts of the current Act. H.R. 3824 weakens requirements for other federal agencies to consult with the federal wildlife agencies’ biologists: It states that the Secretary may define “alternative procedures” the action agencies (i.e., the agencies wanting to pursue or fund a project) follow instead of consultation.

The bill also provides that consultations may not take into account cumulative impact, an unrealistic requirement that the proposed federal project be considered the only threat to the species.

And, as in other sections, H.R. 3824 says that consultations will be based on the “best available scientific data” -- determined by a political appointee. In the law now, consultations are based on “best scientific and commercial data available,” but, again, current law does not say the Secretary can be the final determinant of what these data are, with no or little possibility of citizen oversight.

RECOVERY PLANNING WEAKENED

The current Endangered Species Act says people on recovery planning teams must be “qualified individuals” and “appropriate people from private agencies and institutions,” which encourages teams to have scientist participants. H.R. 3824 says the recovery team should be (a) of a composition to ensure “timely completion”; AND (b) have sufficient composition of people with a “demonstrated direct interest” in the species, its conservation, or economic and social ramifications from its conservation. It’s uncertain how direct interest would be interpreted if this became law.

The recovery planning section of H.R. 3824 says the plans should be “scientifically rigorous,” but it also specifies this will be the “best available scientific data” (see above for concerns about the politicization of “best available scientific data”).

ELIMINATING PROTECTIONS FROM PESTICIDES

With little notice or debate, H.R. 3824 was amended in the House Resources Committee to waive protective portions of the Endangered Species Act when they would serve to protect endangered or threatened species from harmful pesticide exposures. The American Bird Conservancy estimates that over one billion pounds of pesticides are applied each year on lawns, golf courses, farms, and ranches, and this results in the death of millions of birds annually. Pesticides have been implicated in the deaths or decline of endangered and threatened species, including Sea Turtles, San Joaquin Kit Foxes, Pacific-area Salmon, and pollinators (insects, mammals, and birds) that are crucial for agriculture.

UNPRECEDENTED REQUIREMENT FOR PAYMENT WHEN PROFITS ARE DIMINISHED

H.R. 3824 requires the federal government to pay private parties for the loss of diminished expected future profits when the ESA stops a “proposed use” of all or a portion of their property. These payments are termed “aid.” Besides being too expensive for the wildlife agencies, this would set a precedent to require government payment for loss of any alleged potential profits due to environmental protections, and perhaps other protections.

* Drafted primarily by Rep. Richard Pombo, H.R. 3824 is a significant bill with many provisions. Therefore, this highlights some of the troubling provisions but is not all-inclusive. H.R. 3824 was approved by the U.S. House September 29, 2005, in a fairly close vote. Attention on this issue now turns to the U.S. Senate.

Click here for:
A Brief Guide to the “Written Determination” and “Aid” Provisions of H.R. 3824
by James M. McElfish, Jr., Environmental Law Institute, Washington, D.C.  

Prepared by Suellen Lowry, Program Director of the Noah Alliance. Please do not hesitate to contact Suellen with questions at 707-826-1948, suellenquaker@suddenlink.net.