- Location
- Desert Beach So Cal
Read the CBD complaints while remembering if the ESA is the Endangered Species Act or the Potentially Threatened/Sensitive/or Percieved by Someone as Needing Protection Act.
Many of these complaints have quite a hollow ring if we eliminate the abuse of protections to non-Endangered habitat and species.
You make the call (read and decide for yourself).
*********
http://www.biologicaldiversity.org/swcbd/press/Pombo07-08-05.html
For Immediate Release July 8, 2005
POMBO BILL WOULD REPEAL ENDANGERED SPECIES ACT,
ELIMINATE RECOVERY GOALS AND REQUIREMENTS
Contact: Kieran Suckling, (520) 275-5960
<http://www.biologicaldiversity.org/swcbd/press/ksuckling@biologicaldive
rsity.org> <mailto:[email protected]>
[email protected]
The Center for Biological Diversity has obtained a tightly held draft of
Richard Pombo's (R-CA) cynically entitled Threatened and Endangered
Species Recovery Act of 2005. "Pombo's bill is a radical assault on the
Endangered Species Act," said Kieran Suckling, policy director of the
Center for Biological Diversity. "Its an anti-recovery bill which will
not only kill endangered species, it will kill the Endangered Species
Act itself." In addition to completely repealing the Endangered Species
Act in 2015, the bill would immediately:
- Eliminate the requirement to recover endangered species
- Reduce protection of threatened species and critical habitat areas
- Politicize and eliminate scientific decision-making
- Eliminate independent federal oversight
- Bury federal biologists under mountains of useless paperwork
- Bankrupt the federal agencies by diverting conservation funds to pay
landowners and corporation to obey the law
- Encourage an increase in industry litigation
Had Pombo's been made law in 1973 instead of the Endangered Species Act,
there would be no bald eagles, wolves, grizzly bears, Florida panthers,
or desert pupfish in the continental U.S. today. If it is made law in
the future, hundreds of endangered species could become extinct.
The Endangered Species and Wetlands Report has separately obtained a
copy of the draft and posted it at: www.eswr.com/605/pombodraftbill.pdf
<http://www.eswr.com/605/pombodraftbill.pdf>
___________________________________________________________________
Detailed Analysis of June 17, 2005 draft of Richard Pombo's
Threatened and Endangered Species Recovery Act of 2005
Repeals the Endangered Species Act
The Pombo bill repeals the Endangered Species Act on October 1, 2015 and
"terminates" all existing contracts, "permits, licenses, and other
authorizations" [24:70:7-16][1]. Thus, it not only kills the Endangered
Species Act, it eradicates all prior requirements to protect endangered
species, including promises by developers to federal agencies to conduct
future mitigation in exchange for immediately destroying habitat.
Eliminates International Protection
The Endangered Species Act protects both domestic and foreign endangered
species from actions funded or carried by U.S. federal agencies
regardless of whether those actions occur within or outside the United
States. Pombo's bill exempts federal agencies from effects of their
actions abroad, allowing them to even drive species extinct. It does by
defining "agency action" to include only actions "in the United States
or the high seas" [3:3:4-11]. Thus jaguars in Mexico, dugongs in Japan,
and ocelots in Belize would be stripped of protection.
Eliminates the Requirement to Recover Endangered Species
1. The Endangered Species Act requires federal agencies to recover (i.e.
"conserve") endangered species using "all methods and procedures which
are necessary to bring any endangered species or threatened species to
the point at which the measures provided pursuant to this Act are no
longer necessary." [3(3), 7(A)(1)]. The Pombo bill eliminates the
recovery requirement by redefining "conservation" so that the mere
"protection" of species is sufficient [3:5:4-8]. Recovering species is
retained as an option, but is no longer required.
2. The Endangered Species Act requires that the Secretaries of Interior
and Commerce implement recovery plans (4(f)(1)). The Pombo bill removes
the requirement [12:26:14-25].
3. The Endangered Species Act requires that federal recovery plans
establish objective measurable criteria to fully recover endangered
species. The Pombo bill requires that they also establish criteria "to
achieve any desired level of abundance" below full recovery [12:27:16-21
emphasis added]. These lesser criteria are established to allow
populations to be removed from the endangered list on a state-by-state
basis before the species is actually recovered [12:28:6-12]. This will
likely prevent many species from ever recovering.
4. The Endangered Species Act requires the designation of critical
habitat areas containing all areas "essential to the conservation (i.e.
recovery) of the species" regardless of whether the species currently
resides there [3(5)(A)]. In this way it provides for population growth
and geographic expansion associated with recovery. The Pombo bill limits
critical habitat to only those areas necessary to avert extinction
[3:6:1-2, 3:6:18-23] and forbids the protection of unoccupied habitat
necessary for recovery. This effectively limits protection to small,
zoo-like areas capable of maintaining species in a perpetual
endangerment, but not help them recover.
5. Furthermore, in the most extreme anti-habitat measure ever proposed
as law, the Pombo bill: 1) forbids critical habitat protection for
threatened species [5:12:12-17]; 2) forbids the designation of new
critical habitats on virtually all federal lands [5:13:15], all private
and state land covered by a habitat conservation plan [5:13:14], and all
state and Native American lands which have a species management plan,
regardless of whether the plan actually benefits the species
[5:13:16-20]; and 3) effectively repeals most existing critical habitat
designations by prohibiting their implementation on these same lands
[5:13:10-13].
Eliminates Key Protections for Threatened Species
1. Threatened species are be definition declining toward endangerment
and eventual extinction. To restore these species before they reach the
edge of extinction, the Endangered Species Act requires critical habitat
areas be designated and protected for both threatened and endangered
species. Pombo's bill would prohibit critical habitat for threatened
species [4:12:12-17].
2. The U.S. Fish and Wildlife Service has issued a nationwide policy
protecting threatened species from unregulated take (i.e. killing,
harming or harassing). Pombo's bill prohibits national take protection
for threatened species, requiring the agency to issue separate
regulations for each species.
Requires Decline to Near Extinction Before Protection
The Endangered Species Act requires that species be listed if they are
imperiled in "a significant portion of [their] range" [e.g. 3(6)].
Pombo's bill requires that a species be imperiled "throughout all of its
current range" [3:7:3-9), 3:9:14-17), 3:10:1- emphasis added]. This
would exclude the bald eagle, grizzly bear, and gray wolf because there
are healthy populations in Alaska even though they are imperiled in most
of their ranges. Indeed about 20% of all endangered species have some
healthy populations. Pombo's bill requires that species be allowed to
decline to the very edge of extinction before action is taken. By then
the cost of saving them will be much higher and the chances of success
much lower.
Eliminates Emergency Protection Measures
The Endangered Species Act currently allows the emergency issuance of a
"any regulation" necessary to save an endangered species (4(b)(7)). In
the past, such actions have typically included listing, critical habitat
designation, and other measures designed to prevent the take of a
species or destruction of its habitat. The Pombo bill limits emergency
rules to emergency listing only [6:18:22-25), 6:19:1]. It forbids the
agencies from taking emergency action to save a species' habitat.
Eliminates Independent Federal Oversight
The Endangered Species Act requires that U.S. Fish and Wildlife Service
or NOAA Fisheries Service biologists review projects which other federal
agencies (e.g. the U.S. Forest Service, Bureau of Reclamation, Bureau of
Land Management, etc.) have determined will likely harm endangered
species (7(b)-7(d)). Since other federal agencies are themselves
proposing, and will benefit from, the harmful action, the Wildlife and
Fisheries Service biologists perform an essential independent review.
The Pombo bill allows the exemption of individual projects and entire
categories of actions from independent review and instead substitute
undefined "alternate procedures" [14:38:24-26-, 13:39:1-15]. As Pombo
and Bush administration have consistently pushed to have federal
agencies approve their own harmful projects despite the obvious conflict
of interest, it is clear that the "alternate procedures" will eliminate
independent oversight from a vast array of habitat destruction projects.
Politicizes and Eliminates Science
1. The Endangered Species Act requires all decisions to be based on the
"best available scientific and commercial information" [e.g.
4(b)(1)(a)]. "Best" is not defined because science changes over time
with advances in technology and methodologies. The meaning of "best" is
left to the scientific community itself. Pombo's bill brushes aside
science by requiring the Secretary of Interior to develop a definition
not only of what constitutes the best science, but what science is even
to be considered "relevant" [3:3:16-22, 3:4:17-25].
2. The Secretary is given unilateral power to overturn final decisions
by federal biologists and managers if she believes those decisions
violate her regulations, or regulations issued by the Office of
Management and Budget under the Data Qualify Act. While agency
biologists are to be held to unrealistic standards of certainty, the
Secretary is allowed to overturn their decision based on "any
supplemental or different data provided" [3:3:23-25, 3:4:1-16, emphasis
added].
3. The Endangered Species Act requires the U.S. Fish and Wildlife
Service and NOAA Fisheries to make decisions based solely on the best
available scientific information and to consider all information
submitted by states, scientists, corporations, individuals or any other
parties with an interest in the species. The Pombo requires the agencies
to ignore some of these public comments and data by officially
designating them as not being the best available scientific information
[6:17:11-17].
4. The Endangered Species Act requires that federal agencies take a
scientific look at the effects of proposed harmful actions by gauging
the impact local actions in the context of all past actions which have
harmed or helped the species. The Pombo bill forbids the holistic
approach, requiring federal agencies to consider only the local impact
of a decision in isolation from all other past and current actions
[14:40:1-6, 18:49:7-12].
5. The Endangered Species Act charges the Secretaries of Interior and
Commerce with developing scientific recovery plans with the help of
"appropriate public and private agencies and institutions, and other
qualified persons" [4(f)(2]. The agencies typically maintain scientific
integrity while involving a variety of stakeholders by distinguishing
between Recovery Teams (sometimes called a Technical Teams or Subgroups)
made up of agency, university and independent scientists, and
Implementation Teams (sometimes called Subgroups or Stakeholders Groups)
made up of economic, conservation and other interests. The Pombo bill
does not require that any federal wildlife scientists appear on federal
recovery teams, but it does require that all federal agencies which put
the species at risk and one representative of each type of private
action which threatens the species be placed on the recover team
[12:28:20-23, 12:29:4-8]. As the primary qualification for recovery team
membership is being involved in actions which threaten the species,
scientists who do make it on to the team will be outnumbered by economic
interests. There is no requirement to include conservation groups.
6. The Endangered Species Act requires the listing any endangered
species, regardless of the cause of its endangerment. The Pombo bill
specifies that only species imperiled by "human activities or by
invasive species, competition from other species, drought, fire, or
other catastrophic natural causes" can be listed [4:10:17-21]. This may
reflect poor drafting rather than a desire to limit listings, but the
effect is the same.
7. While the listing of species and subspecies is to based on the best
scientific information, the Pombo bill establishes a different standard
for distinct populations. The data to support their listing must not
only be the best, it must be "conclusive" [4:11:6-11]. Thus if all
available scientific information supports listing, including a consensus
of scientific opinion, the Secretary can still deny protection by
asserting that the data is still "inconclusive". This vague term invites
abusive, unattainable standards and endless litigation.
8. The Pombo bill unscientifically defines invasive species to exclude
those "grown for food, fiber or other human use" [3:7:17-18]. But many
of the most harmful invasive species were and are being introduced for
food, fiber and "other human use". Bull frogs, buffel grass, brown
trout, carp, tamarisk, and predatory snails are just a few examples.
This definition make no scientific sense and will hinder efforts to
control invasive species.
9. Pombo's bill codifies the controversial "no surprises" policy which
allows corporations and land owners to continue implementing
conservation plans even if scientific research indicates that the plan
is not working [18:49:22-25, 18:50:1-7]. This policy has been opposed by
hundreds of scientists because it effectively prohibits adaptive
management and use of new scientific information. Going further, the
bill exempts the development and approval of such plans from review
under the National Environmental Policy Act and the consultation
provisions of the Endangered Species Act [18:52:4-13, 18:53:1-8]
Strangely, the bill expressly does not include scientific research
permits in the exemption, only development permits.
Creates a Massive, Needless Paperwork Bureaucracy
The Pombo bill would bury federal biologists under mountains of
meaningless, expensive paperwork. They will spend more time at xerox
machines and filing cabinets than protecting wildlife. It requires that
citizens supply the Fish and Wildlife Service with all data and studies
referenced in listing petitions [6:15:19-25] even though the agency
already has most of the documents, and in many cases produced the
documents itself. It requires the Fish and Wildlife Service to duplicate
and store all data and reports used in listing and critical habitat
decisions in every state in which the species occurs [6:16:19-25]. The
Fish and Wildlife Service is already required to provide the public with
any requested data or report. Pombo's bill will require the duplication
and storage of millions of pages, even if no one has requested the
information. His shotgun approach will waste valuable staff time and
funding.
Reduces Federal Control of Invasive Species
Pombo's bill appears to address the threat posed by invasive species
when it expands the list of potential conservation actions and threats
to include the "eradication or suppression of invasive species" [e.g.
3:5:4-11]. But it does not confer any new power or responsibility on
federal agencies. To the contrary, the only sections which do
substantially change the Endangered Species Act reduce the government's
ability to control invasives and exempts potentially damaging from
environmental review.
As described above, Pombo's bill unscientifically defines invasive
species to exclude those "grown for food, fiber or other human use"
[3:7:17-18], hindering federal efforts to address all harmful invasives,
not just those which are politically convenient. It also exempts the use
of pesticides, fire, and "other methods" of invasive species control
from endangered species protections [18:55:22-25, 18:56:1-7]. The
history of invasive species management is replete with good intentions
going awry to the detriment of endangered species and their habitats.
The poisoning of the entire Green River, endangered fish and all, is but
one example. It makes no sense to give these action carte blanche when
an appropriate level of planning, review, and monitoring can greatly
increase their efficiency and ensure they do not inadvertently harm
species.
Creates a Burdensome Industry Appeals Process, While Potentially Banning
Environmental Litigation
The Pombo bill eliminates the Endangered Species Committee [14:43:6-12],
a cabinet level panel with the authority to approve project which would
otherwise be prohibited by the Endangered Species Act. While intended to
provide an mechanism to overrule species conservation, the God Squad (as
it is also known) has been a disappointment to development interests
because 1) it can only be invoked by a federal agency or state governor,
2) has rarely been invoked and is always very controversial, and 3) the
committee has often sided with the species rather than developers. To
more effectively overrule and delay conservation, the Pombo bill
establishes a burdensome bureaucratic appeals process which can be
invoked "any person that would be injured" by an agency decision in a
biological opinion [14:43:15-21] or habitat conservation plan
[18:53:13-25, 18:54:1-2].
Other than banning appeals by federal biologists, the bill leaves it to
the Secretary of Interior to define who qualifies as an injured party.
The expectation is clearly that corporations and landowners can suffer
injury due to their financial stake, but scientists and
environmentalists can not. And since litigation can only be brought by
parties which first appealed, environmental advocates would also be
banned from challenging harmful decisions in court.
It is ironic that Mr. Pombo, a tireless and exaggerated critic of the
National Environmental Policy Act appeals process, is himself creating
an appeals process within the Endangered Species Act. His appeal process
will cause extraordinary logjams because it alone among American laws
allows the appeal of draft as well as final decisions.
Bankrupts the Endangered Species Act by Diverting Conservation Funds to
Pay Landowners and Corporations to Obey the Law
Federal courts, including the Supreme Court, have affirmed that
endangered species regulations on private lands are not a form of
constitutional take requiring financial compensation. Pombo's bill
overturns the courts-the fundamental basis of property law-by requiring
compensation when at least 50% of the value of a property is impacted by
endangered species protections [20:63:3-7]. Compensation is not
permitted to come from the federal treasury, it must be "promptly" paid
by the responsible federal agency "out of the currently available
appropriations supporting the action or program" which caused the loss.
Since endangered species receive only a small share of Department of
Interior and Commerce funding, diversion of these conservation funds
will quickly bankrupt the Endangered Species Act bringing protection and
recovery (and possibly salaries) to a halt.
Pombo is clearly aware that the agencies' budgets will quickly consumed
because the bill stipulates that once the fiscal year's budget is
expended, the agencies must commit funding the next fiscal year or
request a special appropriation [20:65:4-20].
Elimination of NOAA Fisheries Authority
The Endangered Species Act currently assigns endangered terrestrial and
freshwater species to the Secretary of Interior who acts through the
U.S. Fish and Wildlife Service. Marine species are assigned to the
Secretary of Commerce who acts through NOAA Fisheries. Pombo's bill
strips authority from the Secretary of Commerce and centralizes all
authority in the Secretary of Interior [3:8:18-230]. This portion of the
bill appears to be only partially developed.
------------------------------------------------------------------------
--------
[1] References to the Pombo bill have following form- section
age:line
number.
********
Many of these complaints have quite a hollow ring if we eliminate the abuse of protections to non-Endangered habitat and species.
You make the call (read and decide for yourself).
*********
http://www.biologicaldiversity.org/swcbd/press/Pombo07-08-05.html
For Immediate Release July 8, 2005
POMBO BILL WOULD REPEAL ENDANGERED SPECIES ACT,
ELIMINATE RECOVERY GOALS AND REQUIREMENTS
Contact: Kieran Suckling, (520) 275-5960
<http://www.biologicaldiversity.org/swcbd/press/ksuckling@biologicaldive
rsity.org> <mailto:[email protected]>
[email protected]
The Center for Biological Diversity has obtained a tightly held draft of
Richard Pombo's (R-CA) cynically entitled Threatened and Endangered
Species Recovery Act of 2005. "Pombo's bill is a radical assault on the
Endangered Species Act," said Kieran Suckling, policy director of the
Center for Biological Diversity. "Its an anti-recovery bill which will
not only kill endangered species, it will kill the Endangered Species
Act itself." In addition to completely repealing the Endangered Species
Act in 2015, the bill would immediately:
- Eliminate the requirement to recover endangered species
- Reduce protection of threatened species and critical habitat areas
- Politicize and eliminate scientific decision-making
- Eliminate independent federal oversight
- Bury federal biologists under mountains of useless paperwork
- Bankrupt the federal agencies by diverting conservation funds to pay
landowners and corporation to obey the law
- Encourage an increase in industry litigation
Had Pombo's been made law in 1973 instead of the Endangered Species Act,
there would be no bald eagles, wolves, grizzly bears, Florida panthers,
or desert pupfish in the continental U.S. today. If it is made law in
the future, hundreds of endangered species could become extinct.
The Endangered Species and Wetlands Report has separately obtained a
copy of the draft and posted it at: www.eswr.com/605/pombodraftbill.pdf
<http://www.eswr.com/605/pombodraftbill.pdf>
___________________________________________________________________
Detailed Analysis of June 17, 2005 draft of Richard Pombo's
Threatened and Endangered Species Recovery Act of 2005
Repeals the Endangered Species Act
The Pombo bill repeals the Endangered Species Act on October 1, 2015 and
"terminates" all existing contracts, "permits, licenses, and other
authorizations" [24:70:7-16][1]. Thus, it not only kills the Endangered
Species Act, it eradicates all prior requirements to protect endangered
species, including promises by developers to federal agencies to conduct
future mitigation in exchange for immediately destroying habitat.
Eliminates International Protection
The Endangered Species Act protects both domestic and foreign endangered
species from actions funded or carried by U.S. federal agencies
regardless of whether those actions occur within or outside the United
States. Pombo's bill exempts federal agencies from effects of their
actions abroad, allowing them to even drive species extinct. It does by
defining "agency action" to include only actions "in the United States
or the high seas" [3:3:4-11]. Thus jaguars in Mexico, dugongs in Japan,
and ocelots in Belize would be stripped of protection.
Eliminates the Requirement to Recover Endangered Species
1. The Endangered Species Act requires federal agencies to recover (i.e.
"conserve") endangered species using "all methods and procedures which
are necessary to bring any endangered species or threatened species to
the point at which the measures provided pursuant to this Act are no
longer necessary." [3(3), 7(A)(1)]. The Pombo bill eliminates the
recovery requirement by redefining "conservation" so that the mere
"protection" of species is sufficient [3:5:4-8]. Recovering species is
retained as an option, but is no longer required.
2. The Endangered Species Act requires that the Secretaries of Interior
and Commerce implement recovery plans (4(f)(1)). The Pombo bill removes
the requirement [12:26:14-25].
3. The Endangered Species Act requires that federal recovery plans
establish objective measurable criteria to fully recover endangered
species. The Pombo bill requires that they also establish criteria "to
achieve any desired level of abundance" below full recovery [12:27:16-21
emphasis added]. These lesser criteria are established to allow
populations to be removed from the endangered list on a state-by-state
basis before the species is actually recovered [12:28:6-12]. This will
likely prevent many species from ever recovering.
4. The Endangered Species Act requires the designation of critical
habitat areas containing all areas "essential to the conservation (i.e.
recovery) of the species" regardless of whether the species currently
resides there [3(5)(A)]. In this way it provides for population growth
and geographic expansion associated with recovery. The Pombo bill limits
critical habitat to only those areas necessary to avert extinction
[3:6:1-2, 3:6:18-23] and forbids the protection of unoccupied habitat
necessary for recovery. This effectively limits protection to small,
zoo-like areas capable of maintaining species in a perpetual
endangerment, but not help them recover.
5. Furthermore, in the most extreme anti-habitat measure ever proposed
as law, the Pombo bill: 1) forbids critical habitat protection for
threatened species [5:12:12-17]; 2) forbids the designation of new
critical habitats on virtually all federal lands [5:13:15], all private
and state land covered by a habitat conservation plan [5:13:14], and all
state and Native American lands which have a species management plan,
regardless of whether the plan actually benefits the species
[5:13:16-20]; and 3) effectively repeals most existing critical habitat
designations by prohibiting their implementation on these same lands
[5:13:10-13].
Eliminates Key Protections for Threatened Species
1. Threatened species are be definition declining toward endangerment
and eventual extinction. To restore these species before they reach the
edge of extinction, the Endangered Species Act requires critical habitat
areas be designated and protected for both threatened and endangered
species. Pombo's bill would prohibit critical habitat for threatened
species [4:12:12-17].
2. The U.S. Fish and Wildlife Service has issued a nationwide policy
protecting threatened species from unregulated take (i.e. killing,
harming or harassing). Pombo's bill prohibits national take protection
for threatened species, requiring the agency to issue separate
regulations for each species.
Requires Decline to Near Extinction Before Protection
The Endangered Species Act requires that species be listed if they are
imperiled in "a significant portion of [their] range" [e.g. 3(6)].
Pombo's bill requires that a species be imperiled "throughout all of its
current range" [3:7:3-9), 3:9:14-17), 3:10:1- emphasis added]. This
would exclude the bald eagle, grizzly bear, and gray wolf because there
are healthy populations in Alaska even though they are imperiled in most
of their ranges. Indeed about 20% of all endangered species have some
healthy populations. Pombo's bill requires that species be allowed to
decline to the very edge of extinction before action is taken. By then
the cost of saving them will be much higher and the chances of success
much lower.
Eliminates Emergency Protection Measures
The Endangered Species Act currently allows the emergency issuance of a
"any regulation" necessary to save an endangered species (4(b)(7)). In
the past, such actions have typically included listing, critical habitat
designation, and other measures designed to prevent the take of a
species or destruction of its habitat. The Pombo bill limits emergency
rules to emergency listing only [6:18:22-25), 6:19:1]. It forbids the
agencies from taking emergency action to save a species' habitat.
Eliminates Independent Federal Oversight
The Endangered Species Act requires that U.S. Fish and Wildlife Service
or NOAA Fisheries Service biologists review projects which other federal
agencies (e.g. the U.S. Forest Service, Bureau of Reclamation, Bureau of
Land Management, etc.) have determined will likely harm endangered
species (7(b)-7(d)). Since other federal agencies are themselves
proposing, and will benefit from, the harmful action, the Wildlife and
Fisheries Service biologists perform an essential independent review.
The Pombo bill allows the exemption of individual projects and entire
categories of actions from independent review and instead substitute
undefined "alternate procedures" [14:38:24-26-, 13:39:1-15]. As Pombo
and Bush administration have consistently pushed to have federal
agencies approve their own harmful projects despite the obvious conflict
of interest, it is clear that the "alternate procedures" will eliminate
independent oversight from a vast array of habitat destruction projects.
Politicizes and Eliminates Science
1. The Endangered Species Act requires all decisions to be based on the
"best available scientific and commercial information" [e.g.
4(b)(1)(a)]. "Best" is not defined because science changes over time
with advances in technology and methodologies. The meaning of "best" is
left to the scientific community itself. Pombo's bill brushes aside
science by requiring the Secretary of Interior to develop a definition
not only of what constitutes the best science, but what science is even
to be considered "relevant" [3:3:16-22, 3:4:17-25].
2. The Secretary is given unilateral power to overturn final decisions
by federal biologists and managers if she believes those decisions
violate her regulations, or regulations issued by the Office of
Management and Budget under the Data Qualify Act. While agency
biologists are to be held to unrealistic standards of certainty, the
Secretary is allowed to overturn their decision based on "any
supplemental or different data provided" [3:3:23-25, 3:4:1-16, emphasis
added].
3. The Endangered Species Act requires the U.S. Fish and Wildlife
Service and NOAA Fisheries to make decisions based solely on the best
available scientific information and to consider all information
submitted by states, scientists, corporations, individuals or any other
parties with an interest in the species. The Pombo requires the agencies
to ignore some of these public comments and data by officially
designating them as not being the best available scientific information
[6:17:11-17].
4. The Endangered Species Act requires that federal agencies take a
scientific look at the effects of proposed harmful actions by gauging
the impact local actions in the context of all past actions which have
harmed or helped the species. The Pombo bill forbids the holistic
approach, requiring federal agencies to consider only the local impact
of a decision in isolation from all other past and current actions
[14:40:1-6, 18:49:7-12].
5. The Endangered Species Act charges the Secretaries of Interior and
Commerce with developing scientific recovery plans with the help of
"appropriate public and private agencies and institutions, and other
qualified persons" [4(f)(2]. The agencies typically maintain scientific
integrity while involving a variety of stakeholders by distinguishing
between Recovery Teams (sometimes called a Technical Teams or Subgroups)
made up of agency, university and independent scientists, and
Implementation Teams (sometimes called Subgroups or Stakeholders Groups)
made up of economic, conservation and other interests. The Pombo bill
does not require that any federal wildlife scientists appear on federal
recovery teams, but it does require that all federal agencies which put
the species at risk and one representative of each type of private
action which threatens the species be placed on the recover team
[12:28:20-23, 12:29:4-8]. As the primary qualification for recovery team
membership is being involved in actions which threaten the species,
scientists who do make it on to the team will be outnumbered by economic
interests. There is no requirement to include conservation groups.
6. The Endangered Species Act requires the listing any endangered
species, regardless of the cause of its endangerment. The Pombo bill
specifies that only species imperiled by "human activities or by
invasive species, competition from other species, drought, fire, or
other catastrophic natural causes" can be listed [4:10:17-21]. This may
reflect poor drafting rather than a desire to limit listings, but the
effect is the same.
7. While the listing of species and subspecies is to based on the best
scientific information, the Pombo bill establishes a different standard
for distinct populations. The data to support their listing must not
only be the best, it must be "conclusive" [4:11:6-11]. Thus if all
available scientific information supports listing, including a consensus
of scientific opinion, the Secretary can still deny protection by
asserting that the data is still "inconclusive". This vague term invites
abusive, unattainable standards and endless litigation.
8. The Pombo bill unscientifically defines invasive species to exclude
those "grown for food, fiber or other human use" [3:7:17-18]. But many
of the most harmful invasive species were and are being introduced for
food, fiber and "other human use". Bull frogs, buffel grass, brown
trout, carp, tamarisk, and predatory snails are just a few examples.
This definition make no scientific sense and will hinder efforts to
control invasive species.
9. Pombo's bill codifies the controversial "no surprises" policy which
allows corporations and land owners to continue implementing
conservation plans even if scientific research indicates that the plan
is not working [18:49:22-25, 18:50:1-7]. This policy has been opposed by
hundreds of scientists because it effectively prohibits adaptive
management and use of new scientific information. Going further, the
bill exempts the development and approval of such plans from review
under the National Environmental Policy Act and the consultation
provisions of the Endangered Species Act [18:52:4-13, 18:53:1-8]
Strangely, the bill expressly does not include scientific research
permits in the exemption, only development permits.
Creates a Massive, Needless Paperwork Bureaucracy
The Pombo bill would bury federal biologists under mountains of
meaningless, expensive paperwork. They will spend more time at xerox
machines and filing cabinets than protecting wildlife. It requires that
citizens supply the Fish and Wildlife Service with all data and studies
referenced in listing petitions [6:15:19-25] even though the agency
already has most of the documents, and in many cases produced the
documents itself. It requires the Fish and Wildlife Service to duplicate
and store all data and reports used in listing and critical habitat
decisions in every state in which the species occurs [6:16:19-25]. The
Fish and Wildlife Service is already required to provide the public with
any requested data or report. Pombo's bill will require the duplication
and storage of millions of pages, even if no one has requested the
information. His shotgun approach will waste valuable staff time and
funding.
Reduces Federal Control of Invasive Species
Pombo's bill appears to address the threat posed by invasive species
when it expands the list of potential conservation actions and threats
to include the "eradication or suppression of invasive species" [e.g.
3:5:4-11]. But it does not confer any new power or responsibility on
federal agencies. To the contrary, the only sections which do
substantially change the Endangered Species Act reduce the government's
ability to control invasives and exempts potentially damaging from
environmental review.
As described above, Pombo's bill unscientifically defines invasive
species to exclude those "grown for food, fiber or other human use"
[3:7:17-18], hindering federal efforts to address all harmful invasives,
not just those which are politically convenient. It also exempts the use
of pesticides, fire, and "other methods" of invasive species control
from endangered species protections [18:55:22-25, 18:56:1-7]. The
history of invasive species management is replete with good intentions
going awry to the detriment of endangered species and their habitats.
The poisoning of the entire Green River, endangered fish and all, is but
one example. It makes no sense to give these action carte blanche when
an appropriate level of planning, review, and monitoring can greatly
increase their efficiency and ensure they do not inadvertently harm
species.
Creates a Burdensome Industry Appeals Process, While Potentially Banning
Environmental Litigation
The Pombo bill eliminates the Endangered Species Committee [14:43:6-12],
a cabinet level panel with the authority to approve project which would
otherwise be prohibited by the Endangered Species Act. While intended to
provide an mechanism to overrule species conservation, the God Squad (as
it is also known) has been a disappointment to development interests
because 1) it can only be invoked by a federal agency or state governor,
2) has rarely been invoked and is always very controversial, and 3) the
committee has often sided with the species rather than developers. To
more effectively overrule and delay conservation, the Pombo bill
establishes a burdensome bureaucratic appeals process which can be
invoked "any person that would be injured" by an agency decision in a
biological opinion [14:43:15-21] or habitat conservation plan
[18:53:13-25, 18:54:1-2].
Other than banning appeals by federal biologists, the bill leaves it to
the Secretary of Interior to define who qualifies as an injured party.
The expectation is clearly that corporations and landowners can suffer
injury due to their financial stake, but scientists and
environmentalists can not. And since litigation can only be brought by
parties which first appealed, environmental advocates would also be
banned from challenging harmful decisions in court.
It is ironic that Mr. Pombo, a tireless and exaggerated critic of the
National Environmental Policy Act appeals process, is himself creating
an appeals process within the Endangered Species Act. His appeal process
will cause extraordinary logjams because it alone among American laws
allows the appeal of draft as well as final decisions.
Bankrupts the Endangered Species Act by Diverting Conservation Funds to
Pay Landowners and Corporations to Obey the Law
Federal courts, including the Supreme Court, have affirmed that
endangered species regulations on private lands are not a form of
constitutional take requiring financial compensation. Pombo's bill
overturns the courts-the fundamental basis of property law-by requiring
compensation when at least 50% of the value of a property is impacted by
endangered species protections [20:63:3-7]. Compensation is not
permitted to come from the federal treasury, it must be "promptly" paid
by the responsible federal agency "out of the currently available
appropriations supporting the action or program" which caused the loss.
Since endangered species receive only a small share of Department of
Interior and Commerce funding, diversion of these conservation funds
will quickly bankrupt the Endangered Species Act bringing protection and
recovery (and possibly salaries) to a halt.
Pombo is clearly aware that the agencies' budgets will quickly consumed
because the bill stipulates that once the fiscal year's budget is
expended, the agencies must commit funding the next fiscal year or
request a special appropriation [20:65:4-20].
Elimination of NOAA Fisheries Authority
The Endangered Species Act currently assigns endangered terrestrial and
freshwater species to the Secretary of Interior who acts through the
U.S. Fish and Wildlife Service. Marine species are assigned to the
Secretary of Commerce who acts through NOAA Fisheries. Pombo's bill
strips authority from the Secretary of Commerce and centralizes all
authority in the Secretary of Interior [3:8:18-230]. This portion of the
bill appears to be only partially developed.
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[1] References to the Pombo bill have following form- section
age:linenumber.
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