CENTER FOR BIOLOGICAL DIVERSITY
For Immediate Release July 8, 2005
POMBO BILL WOULD REPEAL ENDANGERED SPECIES
Contact: Kieran Suckling, (520)
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
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]. 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.
 References to the Pombo bill have following form- section:page:line number.