Healthy Oceans Blog

Congress Is Quietly Eroding the Endangered Species Act

Photo credit: Noah Grezlak

In the past two decades, Republicans in Congress have offered up more than 378 bills—45 in 2018 alone—to seriously weaken the Endangered Species Act. Most of those plans died before they got past the House Committee on Natural Resources, which needs to sign off before the bills come to a vote. But last week, while front pages and Twitter feeds spilled over with news of U.S. Supreme Court nominee Brett Kavanaugh, the committee voted along party lines and passed five bills that could devastate protections for endangered species.

The committee head, Utah Republican Rob Bishop, has said in no uncertain terms that he’d love nothing more than to completely invalidate the ESA. But serious attacks on the law have historically been defeated by both Republicans and Democrats because the act is overwhelmingly popular. About 74 percent of American conservatives and 90 percent of liberals support it. None of the five bills will get a vote before elections in November, and it’s worth remembering there’s a chance Congress will look a lot different after that. But with the committee’s stamp, the ESA is in more danger than it has ever been.

What Would the Bills Do?

The House committee called the bills bipartisan, but only one is sponsored by a Democrat. That came from Montana’s Collin Peterson, whose bill would delist gray wolves in Wyoming and the western Great Lakes region. Protections for wolves there have gone back and forth in federal courts for years, and Peterson’s bill would essentially override any judgment and open hunting on the animals for good.

Another bill deals with breeding permits for non-native endangered species and moving these animals over state lines. But it’s the last three that could have the most wide-ranging, long-lasting impacts. One would make the government factor in the economic cost of protecting plants or animals before listing them; another would make it harder for people to sue when they feel the ESA has been abused; and the last would give reports submitted by local and state governments the same weight as those offered by federal studies, which may seem harmless, except that these reports can contain little or no science.

All three bills are framed as important modernizations to the 45-year-old act, but opponents like Arizona Representative Raúl Grijalva, the ranking Democrat on the committee, has said that together they make a “wish list” for the mining and oil industry. Taken together, they would generally make it more difficult for the government to list a species, give states more power to stop any listing, and seriously hamper conservationists’ rights to hold the government accountable.

What’s the Conflict Over the ESA?

To hear some Republicans talk about the ESA, you’d think it was massive failure, and they have their own arithmetic to prove it. Since President Nixon signed the act in 1973, it has protected more than 1,600 species. The bald eagle, the California condor, the grizzly bear, the humpback whale, and many insects and plants wouldn’t be around without it. But in all that time, only 51 species have recovered enough to delist.

“We cannot allow the fear of challenging the status quo to prevent us from taking a hard look at the ineffective policies put in place decades ago that have failed to meet the goals of the underlying statute,” said Louisiana Representative Mike Johnson, who sponsored one of the new bills.

The ESA certainly has its flaws. But the other end of this logic is that 1,600 species are still around that otherwise might not be. So, in regard to keeping animals like the symbol of our country around, conservationists argue that it’s done pretty well.

What Is Trump’s Bigger Plan for the ESA?

Trump’s America First energy plan relies on auctioning off tens of millions of acres to oil and gas companies. In some cases, like with the American burying beetle, the Trump administration and Secretary of the Interior Ryan Zinke are pushing to remove protections from animals on desirable land. But that sort of legal wrangling can take a while. So another tact they’ve taken is to change how agencies interpret the act.

The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration have typically extended ESA protections to “any species which is likely to become endangered within the foreseeable future”—essentially, species considered threatened. But in July, both agencies proposed to reinterpret “foreseeable future” in terms that make it much tougher to get these protections and offer them only on a case-by-case basis.

That, combined with the bills passed by the natural resources committee, could ensure that hundreds of species never get the protections of the ESA. And of course it would make it much easier for oil and gas companies to drill on land that might have been considered critical habitat.

Will the Bills Pass?

Probably not on their own. Republicans still hedge at crippling what is widely seen as one of the most important conservation laws in the world. They’ll more likely try to bury it in a bill that people are more inclined to support.

Bishop stunned many people earlier this summer when he teamed up with Grijalva to sponsor a bill that could save the Land and Water Conservation Fund. It garnered wide praise and raised a few eyebrows from those who view Bishop as a public-lands enemy. But here’s the thing: as legislation moves through the House, it gains fat, with representatives tacking on all sorts of stuff that has nothing to do with the original bill. Republicans tried to do that earlier this year when they added language to a spending bill that would have made it illegal to list the sage grouse for the next ten years. So one likely scenario is that Bishop and his allies play quid pro quo with the LWCF bill and add on some, or all, of the ESA changes.

“Chairman Bishop knows these ESA bills wouldn’t become law as standalone measures,” Adam Sarvana, Grijalva’s communications director, told Outside. “He seems to think a large end-of-year deal—which would have to include genuinely popular measures like LWCF reauthorization—is his best chance at moving his more controversial ideas forward.”

Of the hundreds of bills conservatives have proposed to weaken the ESA, few have ever made it through the committee, let alone Congress, because, overall, voters support the goals of the act. But what Bishop is banking on—aided by all the flashy chaos that has become the norm for this administration—is that, this time, you won’t be paying attention.

This post originally appeared on Outside Magazine's website and can be viewed here.