GOP Has Plan to Get Endangered Species Act Out of 'Litigation Driven' Mode

WASHINGTON – A House Republican working group is recommending sweeping changes in the 40-year-old Endangered Species Act, asserting that local interests are not being properly considered in the law’s implementation and that lawsuits carry excessive weight in its determinations.


While preserving species “is a laudable and worthy goal,” according to the report, “federal implementation of it, and seemingly never-ending litigation are creating increasing impediments towards reaching that goal.”

Rep. Cynthia Lummis (R-Wyo.), who led the 13-member panel with Rep. Doc Hastings (R-Wash.), chairman of the House Natural Resources Committee, said the law needs to be brought into the 21st century as a result of “tremendous conservation advances since 1973.”

“The American people have grown by leaps and bounds in their understanding of conservation, their willingness to conserve species,” Lummis said. “The ESA needs to grow with them. The ESA is stuck in a litigation driven model. This outdated model hinders the boots on the ground conservation we should be harnessing to actually recover endangered species, not just spout flowery rhetoric about the law in courtrooms.”

But environmental groups maintain the group’s conclusions are unacceptable. Jamie Rappaport Clark, president and CEO of Defenders of Wildlife, said the panel’s proposals will “cause more species to go extinct.”

“Conservation of our nation’s precious natural heritage and imperiled wildlife used to be a value embraced by Americans from coast to coast and across the political spectrum,” Clark said. “But more and more, members of Congress like Rep. Hastings seem to have abandoned those values and forgotten their responsibility as stewards of our natural resources.”


Clark said the package “is not credible conservation ‘reform’ — it’s an anti-environmental corporate wish list.”

Chris Tollefson, spokesman for the U.S. Fish and Wildlife Service, responded that the agency will not comment on the House GOP report until wildlife officials have an opportunity to review its findings.

Conservatives have long sought changes in the Endangered Species Act, which they claim often serves as a drag on economic development. They point to instances involving species like the Northern Spotted Owl, listed as threatened under ESA in 1990, which led to a partial shutdown of timber harvesting activity in the Pacific Northwest to protect the bird’s habitat.

“Shortly following the listing, the federal government, through the Clinton Administration’s Northwest Forest Plan, administratively withdrew nearly 24 million acres of federal land – resulting in no access to nearly 85 percent of the area available for timber harvest – from active management and restricted harvest levels,” the report said. “As a result, over 400 lumber mills have closed across Oregon, Washington, Idaho, Montana and California, terminating over 35,000 direct jobs and countless more indirect jobs.”

But Hastings said the biggest problem with the Endangered Species Act is that it “is not recovering species.” The report said only 2 percent of protected species have been recovered at a cost of billions of dollars.


Environmentalist organizations, like the National Wildlife Federation, reject that claim, noting that species like the bald eagle, Florida panther, gray wolf, grizzly bear, peregrine falcon and red-cockaded woodpecker have all benefitted from the ESA.

Congress passed the Endangered Species Act in 1973 to provide for the “conservation, protection, restoration and propagation of threatened and endangered species of fish, wildlife, and plants, and for other purposes.”

The law authorizes federal agencies to list species as either threatened or endangered and requires them to use their authority to conserve listed species and protect their federally designated habitat.

Despite some changes in the law over the years, the U.S. Fish and Wildlife Service maintains the overall framework of the 1973 Act remains “essentially unchanged.” The FWS and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service are responsible for fielding petitions to list species as threatened or endangered and to designate critical habitat, using the “best scientific and commercial data available.”

As of Feb. 4, the Fish and Wildlife Services listed 645 animals as either endangered or threatened along with 874 plants.

The working group concluded that “sensible, targeted reforms would not only improve the eroding credibility of the Act, but would ensure it is implemented more effectively for species and people.”


According to the report, “litigation and threats of litigation on both substantive and procedural grounds have significantly increased in recent years and legitimate questions are being raised over petitions, listings, the rigid timeframes, and transparency of data supporting decisions regarding the priorities of the two agencies that administer ESA.”

The ESA “is increasingly becoming a tool for litigation and taxpayer-funded attorneys’ fees. The Obama administration’s use of closed-door settlements undermines transparency and involvement of affected stakeholders and drives arbitrary mandates and deadlines that do little to recover species.”

The group concluded that federal agencies should be required to disclose all details of consent decrees to Congress. It also held that a process should be implemented to ensure public input in ESA decisions and to ensure they include best scientific data.

The act, the report added, “shuts out states, tribes, local governments, and private landowners not only in key ESA decisions but in actual conservation activities to preserve and recover species.”

To address that issue, the group said more responsibility should be shifted to the states to ensure their role in ESA policy provisions “have meaning and are enforceable.” Agreements to delegate authority between the federal government and states for management of activities involving listed species should not be subject to “excessive litigation,” according to the report, and states that have approved species conservation plans and agreements “should be given presumption by federal agencies that ESA listing is not warranted.”


It also maintains that states – along with Native American tribes and other local governments — should be afforded legal standing and be consulted with on federal ESA-related court settlements impacting their jurisdictional borders.

“The ESA should provide local, tribal and state governments a voice in closed-door settlements where such settlements impact their land,” it said.

Hastings insisted the report can “serve as a starting point as we move forward with sensible and targeted legislative proposals in the coming months.”

“Returning focus of the law to species recovery, addressing litigation and settlement reforms, improving state and local participation and improving science and data are some of the specific areas of improvements on which I believe we can build consensus,” Hastings said.  

Democrats were quick to dismiss the report, holding that it is a partisan screed with no input from various affected quarters.

“As with a number of issues before the committee, there’s the potential for balanced, reasonable compromises to modernize the Endangered Species Act based on the best available science,” said Rep. Peter DeFazio (D-Ore.), ranking member of the House Natural Resources Committee. “But unfortunately this majority does not seem interested in such an approach.”

If the “so-called report” is any indication, DeFazio said, “we will likely spend time debating legislation that will be cast as ‘common sense’ reforms, but will actually gut a law that has prevented the extinction of iconic American animals such as the bald eagle and the gray wolf. We still have a lot of work to do and there is no appetite to overturn the ESA. Because these ‘reforms’ will only appeal to the radical, tea-party wing partisans, it will go nowhere in the Senate.”



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