ENDANGERED SPECIES: Lawmakers joust over GOP bills to reform pivotal law
Emily Yehle, E&E reporter
E&E: Wednesday, April 9, 2014
Congress appears unlikely to reform the Endangered Species Act anytime soon, with Republicans and Democrats still divided on how to update the 40-year-old landmark law.
That divide was on display yesterday at a hearing of the House Natural Resources Committee, which focused on four GOP bills aimed at increasing transparency in ESA-related data and litigation. The bills are the first of the "piecemeal legislation" that committee Chairman Doc Hastings (R-Wash.) has promised as part of Republican efforts to overhaul the law (E&E Daily, March 28).
But while Hastings characterized the bills as "thoughtful, sensible and targeted," Democrats and conservationists charged Republicans with trying to weaken the protection of wildlife under the guise of reform.
Rep. Raúl Grijalva (D-Ariz.) lamented that the bills were developed "with no consultation with the Democrats."
"Some changes could probably be supported, but as drafted, [the bills] pose significant problems," he said. "The fact is, like it or not, ESA is one of the most important environmental laws of our time, and protecting species is broadly supported by the people."
Much of the three-hour hearing featured familiar arguments over how the government -- and the Fish and Wildlife Service specifically -- lists species and treats state governments. Two panels of witnesses featured local politicians, federal officials, scientists and lawyers.
In particular, lawmakers homed in on the data the government uses to decide whether to list species as threatened or endangered under ESA. Charged with using the "best available science," agencies sometimes rely on data that is proprietary, meaning they can't release it to the public.
One of the bills discussed yesterday, H.R. 4315, would require the Interior secretary to publish online "the best scientific and commercial data available" that is used in a listing.
Hastings, who authored the bill, called the requirement "something that should have been done long ago." But opponents expressed concern that it was too broad; FWS, for example, sometimes withholds classified data such as high-resolution photographs from the Department of Defense.
Michael Bean, counselor to the Interior secretary on fish, wildlife and parks, also told the panel that states are sometimes the obstacle in making data public. If FWS uses a study borne out of state data -- as it did for its 2010 decision to name the greater sage grouse as an ESA "candidate" species -- it is up to the state to make it public, Bean said.
Democrats also expressed concern over language in Rep. Randy Neugebauer's (R-Texas) bill, H.R. 4317. One provision would define "best scientific and commercial data available" as including "all such data submitted by a State, tribal, or county government."
To some witnesses, that meant the bill would define state and local data as automatically the "best available."
"We strongly agree that data from states is often the best available data for us," Bean said, adding that ESA already requires FWS to consider state and local data in decisions. But "to presume at the outset that data from a particular source will always constitute the best available data would negate the very purpose of requiring the use of the best available data," he said.
ESA-related litigation -- especially that filed by conservation groups such as the Center for Biological Diversity -- was another target at the hearing. Two of the bills call for reform in how agencies handle such lawsuits: H.R. 4316, from Rep. Cynthia Lummis (R-Wyo.), would require FWS to report how much it spends on them, while H.R. 4318, from Rep. Bill Huizenga, (R-Mich.) would cap attorney reimbursement to $125 per hour.
Karen Budd-Falen, a property rights attorney from Cheyenne, Wyo., argued that attorneys of successful ESA lawsuits should have fees capped at the same rate as others who sue the government and fall under the Equal Access to Justice Act.
"I see no reason that an attorney for a veteran should be treated any different than an attorney for a tree or a rock," she said.
To conservationists, the entire hearing was an orchestrated political stunt, and the Center of Biological Diversity pre-empted the event with a press release criticizing Hastings for "cherry-picking" Budd-Falen and other witnesses who it said are sympathetic to the Republican outlook on ESA.
CBD also was joined by the Defenders of Wildlife, Earthjustice, the Endangered Species Coalition, the Natural Resources Defense Council and the Sierra Club in blasting the legislation.
"The House Republicans supporting these bills are trying to pull a Jedi mind trick on the public," Andrew Wetzler, director of NRDC Land & Wildlife Program, said in a statement. "They know Americans overwhelmingly support the imperiled animals and plants protected by the Endangered Species Act. So, instead of openly taking a whack at one of the nation's most beloved laws, they are hoodwinking the public into thinking these bills will help endangered species when they will do the exact opposite."
The four bills now head to a markup, though the committee has not released a timeline for when that may occur.
