Endangered Species:

Rep. Pombo's aide Brian Kennedy, NWF's John Kostyack debate ESA, property rights

Is the Endangered Species Act really protecting wildlife? Or does it threaten property rights and add regulatory red tape to little effect? What are the differences in how the House and Senate might revise ESA? Joining OnPoint are Brian Kennedy, a top aide to House Resources Chairman Richard Pombo (R-Calif.), and John Kostyack of the National Wildlife Federation, to talk about the strengths and weaknesses of the 30-year-old law and moves to change it.

Transcript

Colin Sullivan: Welcome to OnPoint. I'm Colin Sullivan. Today's topic is the Endangered Species Act. With us are Brian Kennedy, congressional aide to House Resources Committee Chairman Richard Pombo, and John Kostyack, of the National Wildlife Federation. Also with this is Dan Berman, interior reporter for E&E Daily and Greenwire. Thank you all for being here.

John Kostyack: Thanks for having us.

Brian Kennedy: Thank you.

Colin Sullivan: Let's pretend I don't know anything about the Endangered Species Act, and I want to know why it should be changed or why it should not be changed. Brian let's start with you. Let's give you one minute, why should ESA be changed?

Brian Kennedy: Well, Chairman Pombo essentially believes that a few of the unintended consequences of the Endangered Species Act have rendered it crippled, rendered it broken. For example, after the last 30 years of its implementation we know that only 10 of roughly 1,300 listed species have been recovered. We further know from agency data that about 77 percent of the listed species have really only met zero to 25 percent of the recovery objectives. The service believes that a few are extinct, but still listed. It also believes that about 21 percent of them are declining. So after 30 years of its implementation, nearly three decades, he believes it's time to take a step back, review the law and see where we can improve its results for species recovery.

Colin Sullivan: John, what's your response?

John Kostyack: Well, the Endangered Species Act is our nation's safety net for wildlife that is at the brink of extinction and it's actually worked quite successfully. In a moment I'm going to talk about some of the statistics that Brian brought up. They're very misleading. But the most important thing to know is that 99 percent of the species that have ever been protected by the Endangered Species Act are still with us here today and these are the most cherished wildlife species we have in this country. We're talking about the bald eagle, the Florida panther, the whooping crane, many, many animals and plants that we rely upon just because of their natural beauty, but also because they're part of a larger natural system that we rely upon for our quality of life and for drinking water. That's in large part due to the Endangered Species Act protections. Now, I'm not here today to say that there's nothing you can do with the Endangered Species Act. Any law that's been around for 32 years can stand be updated, but its core protections have been working quite effectively.

Colin Sullivan: You took issue with some of his statistics, which ones? Which ones do you take issue with?

John Kostyack: Well he has two statistics that were essentially saying the same thing, which is, the act is a failure because we have not recovered a lot of species and gotten them off the list. And the reason why that is so misleading is because it takes decades just for biological reasons, to take a species that's at the brink of extinction and restore its habitat so it can expand in numbers and get to the point where it is self-sustaining and doesn't need the protections of this law any longer. If you look at the recovery plans that are prepared under the act, the leading scientists on the species say that for reasons independent of the Endangered Species Act it could be 50 or 100 years for many of these species before they're going be in any kind of position biologically to not need the protection of the Endangered Species Act.

Dan Berman: Well Brian, how would you go about changing the Endangered Species Act to improve the species recovery? Are there, and what sort of ways will the chairman recommend?

Brian Kennedy: Well like I said, I think there are a few roadblocks that have been happened because of some of the unintended consequences. For example, billions of dollars over the years have been spent on this law to, with the intent of restoring and recovering endangered species that has not yet happened and we believe that's the case because of situations with critical habitat designations for example. Critical habitat right now accounts for a large chunk of the official wildlife services resources. The process is driven by litigation and throws out of whack, if you will, their ability to prioritize based on biological need.

Dan Berman: So you would say the money is being spent in the wrong places, but that you would agree that there is enough money being thrown into the system?

Brian Kennedy: Well, there is absolutely a lot of money being spent. Some of it is being spent on things other than, you know, muddy boots, conservation and recovery efforts. It's being spent on litigation and bureaucratic processes. It's also being spent wastefully, so to speak. There are a number of examples where erroneous data have taken over the act, where a species has been listed and later down the road we have found that more of this species exists, lots more of this species exists. They should have never been listed in the first place. Well, that is a waste of dollars that we could prevent and that could otherwise be used to recover species that are truly in need.

Dan Berman: John how do you respond?

John Kostyack: Well Dan, you know it's interesting. The rhetoric has changed from Mr. Pombo's office over the past 10 years. Now they're talking about wanting to spend more money efficiently and they want to recover species more than the conservation groups do. Ten years ago it was about property rights and the loss of jobs. The rhetoric may have changed but the fundamental agenda hasn't changed. It's to remove the essential habitat protections that species rely upon for their survival. And if you look at the two main proposals that Brian Kennedy here is alluding to, they are, one the bill that's pending right now, to gut the critical habitat protections of the act. And the other is the one that was approved last year and is likely to resurface again this year, which is essentially to raise the hurdles for the scientists working on the ground to protect habitat. Making it essentially difficult, in some cases impossible, for them to do their jobs and so we're very much interested in talking about how we can adjust these programs to make them work better, but let's look past the rhetoric. Let's look at the actual policy proposals that are on the table today and ask the question, is the habitat that species rely upon for their basic survival going to be better protected or less protected as a result of these proposals? The proposals that Mr. Pombo's put on the table have been proven to be harmful. We've had all the leading scientists in biological conservation write letters to his committee saying, "Don't do this. This is harmful to endangered species."

Colin Sullivan: Well, there is a dispute about critical habitat though and whether or not the scientific basis behind critical habitat leads to recoveries of species. Let's start with you John, and then Brian, you can respond. Why is critical habitat so essential?

John Kostyack: Well critical habitat, there's about three different provisions of the act that protect habitat. Critical habitat is the only one that explicitly says, "We're going to protect the habitat that's needed for recovery." The other two habitat provisions don't go that far and the reason why it's so controversial is just for that reason. It protects more habitat, it protects the habitat that's most important to get the species to the point where they're recovered and delisted. Now we can talk, if you want to get into the deep policy stuff about how we could tweak critical habitat to help get more science into the process, to get more resources into the scientific work. We're all in favor of that, but that's not really the debate that's happening right now. It's a fundamental debate of whether we're going to protect that habitat. The administration is rolling back critical habitat protections on the ground. It's being supported by Mr. Pombo and his committee. It's an orchestrated attempt supported by developers who basically don't want to protect the habitat.

Colin Sullivan: Brian, what's your response?

Brian Kennedy: Well, on a number of things. First of all, the critical habitat designation process, as it stands right now, has essentially been rebuked by several administrations, both Republican and Democrat. In fact, they have said that the critical habitat, as it stands right now, offers very little if anything to species protection and recovery. Yet it consumes the most amount of the available resources because it's driven by litigation and not by biology. So I'd like to get into some of the rhetoric too. We are certainly hearing a lot a rhetoric from both sides, but every effort in the past to improve an environmental law by a Republican has been somehow characterized as an effort to gut, rollback, eviscerate. I think it gets into the politics of it.

Dan Berman: John?

John Kostyack: Yeah, actually, you know, it's funny you say that because I worked on a critical habitat bill with the late Senator Chafee, where we had bipartisan consensus, agreement from the administration, from developers and conservation groups to essentially adjust the critical habitat program so that designations can happen at the same time as recovery plans. So we can clean up the backlog of designations that is leading to some of the litigation. We had a solution on the table. It was shot down, not by conservation groups. So that is actually untrue. We worked quite a lot with Republicans and Democrats on this law. You know, the dynamic we've fallen into today, we have Lincoln Chafee now chairing the subcommittee, had a hearing yesterday, I testified at, a lot of very good ideas for updating this law, very constructive conversation. On the House side we're moving in the opposite direction. We've had a lot of extreme positions put on the table. No sign of any serious bipartisan work and what we're fearful about most is that if we went through all the trouble of putting together this moderate Senate bill it then has to be conferenced with a very extreme House bill and we're going to end up with weakened habitat protection.

Brian Kennedy: I don't think so John, and I'm glad that you bring up the Kempthorne-Chafee bill, because it did deal with critical habitat.

John Kostyack: I was referring to different bill actually.

Brian Kennedy: Oh, OK, well essentially, but what you described is essentially the same thing that a Democrat from California's proposing right now that we do with critical habitat, that we designate it more intelligently at the time of recovery with a focus on recovering a species. Not at the time of listing where we don't have that much data. We don't have very good knowledge of what the species needs at that time to recover.

John Kostyack: That is a consensus point. In fact they have one provision in Mr. Cardoza's bill we can support. It's all the other provisions that essentially make protection of habitat involuntary or optional, is why not only conservation groups, but all the leading scientists who are working on the ground, say it's a bad bill. By the way, this is not evidence of a bipartisan approach. I mean Mr. Cardoza fundraises with Mr. Pombo in front of these gatherings where they openly attack the Endangered Species Act. This is not some kind of bipartisan ruse.

Dan Berman: Isn't that kind of the ultimate bipartisan approach? Where you have lawmakers from both sides, you know, working together to change a federal law?

John Kostyack: But that's a narrow segment of the Democratic Party coming out of the Central Valley of California that has shown some hostility to the act. What I'm saying is if you want a broad bipartisan approach, and there are number of proposals that are on the table that have broad support within both parties, we could do that.

Dan Berman: What sorts of proposals would it take? I mean what would it take to the environmental community to get behind revisions of the Endangered Species Act?

John Kostyack: OK. I'll give you a few that we have put on the table. We've been open about this and working with a good number of members on both sides on these issues, providing incentives for private landowners. Right now the act is built upon the basic 1970s model that all the major environmental statutes are which is mainly focused on prohibitions. And what we don't have is significant resources going to the private landowners who want to do the right thing and carry out affirmative conservation measures on their land to control exotics and take other kinds of affirmative measures. We want to support that. We think there's broad bipartisan support for that kind of work and there's a number of ways you can adjust the act to promote that kind of activity. That's a solution that's been waiting to happen. Unfortunately, what we get from Mr. Pombo's committee is not those kind of solutions, but these rollbacks, the fundamental safety net provisions of the Endangered Species Act.

Brian Kennedy: Well I don't believe that's true, John. In fact, when Chairman Pombo first came to Congress, about a dozen years ago, one of the first bills he introduced was an Endangered Species Act Improvement Bill, which would've given land owner's incentives. And I'm glad we agree --

John Kostyack: It was so called "takings" compensation, where basically, to comply with the law you would need to be compensated. Any kind of implementation of the Endangered Species Act would require a payment from the federal government, fundamentally undermining the law.

Brian Kennedy: I don't believe that undermines the law at all John. I mean that's --

John Kostyack: Well he's abandoned it, so apparently he doesn't believe it any longer.

Brian Kennedy: He has not abandoned it entirely.

Colin Sullivan: Let's let Brian respond to that.

Brian Kennedy: What we are talking about though, and I'm glad to hear that you agree, is that we do need to have incentives for private property owners to become part of the recovery process and not a victim of the recovery process and the regulations under the law. As you know, most of the endangered species in United States have habitat on private land and if we do not incentivize these owners to become part of the process we're never going to get better results for species recovery because we continue this trend of shoot, shovel and shut up and a disincentive under the law for them to be part of the process.

Colin Sullivan: If we can move onto the political process here.

John Kostyack: Sure.

Colin Sullivan: The subtext of what John saying is essentially that environmentalists appear to have been shut out on the House side. Is that true? Do environmentalists have a voice on the House side? And it seems also like they're saying that the Senate is their last line of defense against whatever the House Resources Committee comes up with in terms of ESA reform. So I'm wondering if you're concerned about that dynamic and how would you answer whether or not environmentalists have been shut out?

Brian Kennedy: They have not been shut out at all. Chairman Pombo has said any number of times that his door is open if people want to come in and talk about solutions he's open the hearing all kinds of ideas for solutions. He had stood at a podium with Senator Chafee and number of other senators and House members to say that we are going to work. It's not a question of if we improve the Endangered Species Act. It's a question of how. We're going to talk about how and work together on both sides of the aisle and both sides of the capital to make sure that we can get a good bill done. I don't think there's going to be this contentious conference situation. I don't believe there is going to be at all.

Colin Sullivan: But Chafee says he's apprehensive about moving an ESA bill. Does Chafee not matter? Are we just going to see Inhofe come in and say, "Well, I'm in charge here. I'm the chairman of the committee. I'll say what's going to happen here"?

Brian Kennedy: Senator Chafee is very important to the process and we want to have him involved and we appreciate his comments. We definitely want to work with him. He has expressed dedication to working with us as well, with Chairman Pombo. He has also said that he can work with the old Kempthorne-Chafee bill as a baseline and that all the ideas are on the table as we move forward. So no, there are a lot of partisan political implications here. As you know, the Endangered Species Act has been called the third rail of environmental policy. It's been called the sacred cow, you name it. But like a lot of federal laws the Endangered Species Act has created vested interests. In this case it has created big business. Environmental causes right now have become big business John and if you don't agree with that --

John Kostyack: I would love to go after that one because we've heard it so many times, unfortunately, unrebutted. Mr. Pombo does successfully raise a lot of money around his anti-Endangered Species Act agenda from developers. If you look at the kind of money that these development interests have compared to the kind of money that conservation groups have they're not even in the same ballpark. What we have is not an industry. What we have is a lot of people around this country who, our latest polling shows roughly 86 percent strongly support a powerful Endangered Species Act. And we have our members coming to us and expecting that we represent them here and help educate members and educate the American people about how important this law is as a last line of defense against extinction of our most cherished wildlife species.

Dan Berman: Well, isn't it possible to have revisions to ESA and still keep it powerful?

John Kostyack: Yeah.

Dan Berman: For the, you know, 80-plus percent?

John Kostyack: Yeah and like I said we are very much in favor of constructive revisions to the Endangered Species Act. I think we have a working majority on the Senate side of people who would not allow a rollback of the fundamental habitat protections of the act. On the House side it's a very different dynamic. What we have to look at is performance and not rhetoric. Let's look at the two bills that were approved by the House Resources Committee last week.

Brian Kennedy: John, we're not talking about gutting, eviscerating or rolling back, we're trying to make --

John Kostyack: Well just look at the bills that were passed last Congress.

Brian Kennedy: The act works better.

John Kostyack: Look at who commented on the bills last week.

Brian Kennedy: After three decades, we can do much better.

Colin Sullivan: If we could get to also the subtext of what Brian was saying, Gale Norton made some pretty strong comments about environmental groups using ESA and the roadless rule as a means to raise money rather than using litigation on ESA as an excuse to make money. How do you respond to that allegation? Is ESA reform just a lightning rod for environmental groups just to be able to raise more money?

John Kostyack: No, in fact I think what's really happening, the reason why we have litigation, is because this administration has taken us down the wrong road on Endangered Species Act policy. Time and again, and we can give you plenty of examples and this is from objective sources including the biologists within the agencies, they are saying the fundamental habitat protections of the act are being rolled back administratively. In that case we have two choices, we can sit there and watch our species go down the tubes to extinction or we can go to court, our last line of defense, and to enforce the act and its requirement that the agencies use best available science in making their habitat decisions on the ground. What you'll find, if you look at litigation, the outcome of this litigation, the courts are agreeing with the conservation groups. Our critical habitat is a perfect example.

Dan Berman: OK, but litigation didn't start against the Bush administration. I mean there have been lawsuits against, you know, regarding the Endangered Species Act since it passed. So what makes this administration different and, you know, essentially isn't the same complaint going to be made against the next administration?

John Kostyack: No. Every major environmental statute of course has litigation and the citizen enforcement tool is fundamental to hold agencies accountable. They're not going to do it to themselves. But this administration is qualitatively different. If you look at the recent survey that was done, of the Fish and Wildlife Service biologists, performed by the Union of Concerned Scientists, what it says, what we have is political officials that are reaching down to the lowest level staffers telling them to take scientific studies out of the administrative record in order to give a decision that removes protection for endangered species, manipulating the fundamental underpinnings of the act, which is supposed to be based upon best available science. That was never happening before. We are at a new stage here and we are quite fortunate that we have the enforcement mechanisms. All the polling we see said the American people really want their laws enforced and support that kind of work that we do.

Colin Sullivan: Brian, I know that you've make some allegations yourself and your boss, Chairman Pombo has made some allegations regarding the fundraising. Can we go back to that?

Brian Kennedy: Sure.

Colin Sullivan: And you can talk about why you believe that environmental groups are using these laws as an excuse to raise funds.

Brian Kennedy: Well, the Endangered Species Act has been a cash cow for certain environmental groups. I mean I think if you could put a number on the amount of trees that had to be felled to create all of the fundraising letters to protect the act from being attacked, gutted and rolled back you could probably plant a forest in the Sahara, but we need to get away from the rhetoric. We need to get away from some of the partisanship and Chairman Pombo is going to do that. We did that in Healthy Forest. We took what is basically a logjam on environmental laws and we passed the Healthy Forest Initiative with incredible bipartisan support. Chairman Pombo is going to work on both sides of the aisle to look at the facts and get the best bill possible to move forward so that we can improve our numbers for species recovery, and we can minimize the amount of conflict that we've seen as a result of the Endangered Species Act.

John Kostyack: I feel like I need to respond to these attacks on the environmental community and conservation groups like mine, because here we have objective people stepping into this process, the leading scientists, Pulitzer Prize winners, Nobel Prize winners, all the top scientists in this field, and there'll be no dispute that these people are the leading spokespeople, saying that Mr. Pombo's bills are harmful to endangered species. And now my group and others are being criticized for alerting our members that they're fundamental Endangered Species Act protections that guarantee that we have wildlife for future generations, for their children and grandchildren? We're being accused of doing something wrong for educating our members about these attacks? I don't think so. I don't think we should be apologetic at all. I think we should shine a light back on where it deserves to be shown, which is on Mr. Pombo's 10-year long campaign to undo the Endangered Species Act. Look how he got into office back in the mid 1990s. He was on an anti-Endangered Species Act platform. He's been working this thing ever since, raising buckets of money around it.

Brian Kennedy: Well I have to disagree with that as well John. I mean, Mr. Pombo, it would be a lot easier for Chairman Pombo to basically ignore his constitutional responsibility and escape from the wrath of all these big business environmental organizations and not touch it at all. But the fact remains that constitutionally, from an oversight perspective, he has the responsibility to take a look at these laws, all of them under his jurisdiction to make sure that they are working as efficiently and effectively as possible and that taxpayer dollars are being spent accordingly. We have not done that in Congress. What the chairman is trying to do is put the best foot forward and get a good bill. I think it's very telling that John is painting the chairman's intentions before we've even drafted a bill. We're coming out with a bill in a couple weeks. I'd love to talk you about it but --

Colin Sullivan: OK, well --

Brian Kennedy: You're slamming what you haven't even seen yet.

John Kostyack: I'm just going on the most recent performance.

Colin Sullivan: We're out of time. I hope you guys come back when the process moves forward. Maybe we can revisit the whole issue again. So thanks for being here.

John Kostyack: Thanks for having us.

Colin Sullivan: Join us tomorrow for another edition of OnPoint. Until then I'm Collin Sullivan for E&ETV.

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