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Pombo’s Anti-Endangered Species Bill Leaked Again

Contact: Kieran Suckling, Center for Biological Diversity
(520) 275-5960,

More Information: Pombo's own section by section analysis of his bill

On September 15, 2005, a summary of Congressman’s Richard Pombo’s legislation to gut the Endangered Species Act was leaked. The summary was written by Pombo’s own staff. Below is the Center for Biological Diversity’s analysis of it.

As bad as it looks, the summary undoubtedly soft-peddles and hides many of the bill’s most pernicious aspects. In July, 2005, a summary of the then current draft bill leaked out. When the bill itself leaked out a week later, the bill was much worse than the summary.

Analysis of Pombo Summary

Eliminates Independent Federal Oversight
The Endangered Species Act requires that U.S. Fish and Wildlife Service or NOAA Fisheries Service biologists review all federal actions that may harm endangered species. The review is done only on the basis of the best available science. It is conducted by scientists who are completely independent of the federal agency proposing the harmful action. The Pombo bill allows the exemption of individual projects and entire categories of actions from independent review and instead substitute undefined Aalternate procedures.” As Pombo and the Bush administration have consistently pushed to shield federal agency actions from environmental review by Fish and Wildlife Service, it is clear that the Aalternate procedures@ will eliminate independent oversight over a vast array of habitat destruction projects.

Eliminates Critical Habitat
The Endangered Species Act requires the designation of mapped-out “critical habitat” areas for all threatened and endangered species. Critical habitat is the only portion of the Act which directly protects ecosystems in themselves, regardless of whether an endangered species currently reside there. Critical habitat is the only portion of the Act which expressly establishes a recovery management standard. It works: species with critical habitat are twice as likely to be recovering as species without it.

Pombo’s bill completely eliminates critical habitat from the Endangered Species Act.

Destructive Projects Proceed by Default
The Endangered Species Act currently requires a destructive project can not proceed until it is reviewed and approved by government scientists. The review can not take place unless the agency or corporation proposing the project provides detailed information about the project and its likely effects. Pombo’s bill turns this precautionary process on its head by specifying that destructive projects are allowed to proceed unless government scientists intercede to stop it. The scientists will have little information to make such an intercession, because the Pombo bill allows agencies to simply provide the “nature, the specific location, and the anticipated schedule and duration of the proposed action.” This is not enough information to support a scientific review.

Eliminates & Politicizes Science
The Endangered Species Act currently requires that all decisions be made on the basis of “the best available scientific information.” Wisely, the Act does not define “best available” because advances in scientific technology, knowledge, and methods constantly change the standard of what is best. The Act leaves it up to the scientific community to determine the best science available. Pombo’s bill requires a politically appointee, the Secretary of Interior, to issue regulations predetermining the definition of best science.

The Pombo bill codifies the “No Surprises” policy—currently a highly controversial administrative regulation that has been widely condemned by scientists. The bill prohibits the U.S. Fish and Wildlife Service and NOAA Fisheries from updating failing Habitat Conservation Plans unless the private land owner holding the permit agrees. Thus new scientific information and the results of biological monitoring no longer require updating of plans.

Eliminates Species Protections and Up-To-Date Science
As currently written, the Endangered Species Act provides full protection to each new species added to the endangered species list. Pombo’s bill allows the U.S. Fish and Wildlife Service and NOAA Fisheries to sign an agreement with individual states prior to a species being listed, which prohibits new protections for those species. If a species were to be listed despite the presence of such an agreement, it would indicate that the agreement was necessarily insufficient to protect the species. It makes no sense to continue implementing the agreement even though scientists have determined that it allowed the species to proceed toward endangerment.

Slows Species Protections
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 this efficient national approach, requiring the agency to issue separate regulations for each threatened species.

Prevents and Bureaucratizes the Listing of Endangered Species
The Endangered Species Act currently allows the listing of species, subspecies, and “distinct population segments.” Pombo’s bill makes it harder to list populations by requiring that it be done “sparingly.”

The Endangered Species Act requires that decisions to place species on the endangered list be done solely on the basis of the best available scientific information. In 2003, the Government Accountability Office issued a report (at the request of Congressman Pombo) which found that U.S. Fish and Wildlife Service listing decisions are scientifically sound. Pombo’s bill would bureaucratize a system that is already working fine by making petitioners supply the agency with documents that already possesses and making the agency post all those documents on a website. While this will not affect listing decisions, it dramatically increases burdensome, unnecessary paperwork tasks for government, university, and NGO scientists.

Bankrupts the Endangered Species Act with an Expansive Taking Provision
Pombo’s bill requires the federal government to pay private landowners for the loss of commercial value when an action (timber harvest, development, etc) is prohibited by the protections of the Endangered Species Act. Roundly criticized for this in the previous leaked version of the bill, Pombo has hidden the same provision under the misleading code word "conservation aid.” The bill specifies that "The amount of the Aid is to be no less than the fair market value of the forgone use of the affected portion of the property." That is, the federal government would have to pay for profits developers hoped to gain by developing that portion of the land, including any profits lost due to mitigations asked of the landowner, such as retaining riparian corridors or setting aside mitigation habitat. This not only would have a tremendous impact on the federal budget, it would set a precedent to require the government to pay industry for any profits lost to environmental protections, and it would reward developers who plan the maximum and most potentially profitable projects for the most ecologically important habitat. In short, it begs developers to plan projects that allow them to extort payment from the government.

This is worse than the earlier version of the Pombo bill in that it demands payment whenever the profits from any portion of the land is decreased, as opposed to Pombo's earlier proposal to make payments if more than half the value of the property is decreased due to protections of the Endangered Species Act.

Eliminates the God Squad
The Pombo bill eliminates the Endangered Species Committee, 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.

Jeopardy Standard
Jeopardy is currently defined as any action which “appreciably” reduces a species ability to survive and recovery. On the negative side, the Pombo bill changes “appreciably” to the much lower standard of “significantly”. On the positive side, it follows a recent court order in defining jeopardy in terms of recovery rather than survival.

Recovery Plan Timing & Implementation
The Pombo bill requires completion of recovery plans within two years of listing. For currently listed species without plans, it requires the development of a priority system to develop plans.

Recovery Agreements
The Pombo bill allows the U.S. Fish and Wildlife Service to enter into recovery agreements with private land owners. The summary does not specify what the terms of the agreements are.


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