With most of Washington focused on fights over government funding, Obamacare and Russian meddling, a few congressional aides and outside advocates are quietly preparing for what could be an epic battle over the Endangered Species Act.
The contentious conservation law was protected by President Obama’s veto from Republican efforts to ease restrictions on farmers, energy companies and developers.
But with Republicans now controlling Capitol Hill and the White House for the first time since 2004, the endangered species law — which hasn’t been significantly updated since 1988 — appears vulnerable.
On one side of the fight are staffers for House Natural Resources Chairman Rob Bishop (R-Utah), who said last year that he wants to repeal and replace the law (E&E Daily, Dec. 9, 2016).
But in the 115th Congress, Bishop is instead focused on narrow sections of the ESA that Republicans and industry groups find problematic.
His first hearing this year centered on a provision requiring input from the Fish and Wildlife Service or National Marine Fisheries Service — agencies that jointly administer the ESA — on government-approved or -funded projects that could "jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of [critical] habitat of such species" (E&E Daily, March 29).
The hearing was held by the increasingly important Subcommittee on Oversight and Investigations, a panel Bishop created after winning the Natural Resources gavel two years ago (E&E Daily, Jan. 14, 2015).
Led since January by Rep. Raúl Labrador (R-Idaho), Oversight has seven full-time GOP staffers — more than any other Natural Resources subcommittee, according to data from LegiStorm, a congressional staff tracking service.
Oversight staff director Rob Gordon, a veteran of the Hill’s periodic ESA fights, and counsel Megan Olmstead, a relative newcomer, will provide Republican lawmakers with most of the legislative ammunition they need. They and many other staffers featured in this story were not made available for interviews.
Gordon, who spent seven years at the conservative Heritage Foundation before returning to the Natural Resources panel when Bishop took over, also served as the Trump transition team’s advisor on regulatory reform (E&E Daily, Jan. 22, 2015). He has been working for decades to overhaul the law.
"The time is ripe to amend significantly the Endangered Species Act," he wrote in a 1994 article for Heritage’s now defunct Policy Review journal. Had the law been in existence during biblical times, Gordon wrote, Noah "might have been reviled as an animal-hater, fined, and kept from launching his ark" because he wouldn’t have thought to bring aboard certain reptile and insect species.
At the time, Gordon was the executive director of the National Wilderness Institute. The Vanderbilt University graduate left the oil industry-funded environmental group in 2004 to support the failed ESA reform efforts of former Resources Chairman Richard Pombo (R-Calif.).
Olmstead is working closely with Gordon on the committee’s reform efforts. After graduating a decade ago from the University of Portland, a Catholic school in Oregon, she bounced between Capitol Hill, the Idaho governor’s office and the University of Notre Dame’s law school before ending up with Natural Resources in September 2015, her profile on the social networking site LinkedIn shows. In law school, she studied the gray wolf’s status under the ESA.
Across the Capitol, staffers for Senate Environment and Public Works Chairman John Barrasso (R-Wyo.) are also formulating an overhaul strategy.
So far, Barrasso has held one hearing that sought to build bipartisan consensus for ESA reform and marked up a bill that he introduced with ranking member Tom Carper (D-Del.) that would revive and bolster several wildlife protection programs and launch annual innovation prizes for endangered species management and other conservation challenges (Greenwire, April 5).
Matt Leggett, the committee’s deputy chief counsel, and Andrew Harding, who took his first Hill job as counsel in September 2016, are two of Barrasso’s lead ESA reformers.
Leggett began working for the chairman in 2012 as policy counsel for the Senate Republican Policy Committee, which Barrasso then led. The University of Virginia and Vanderbilt University Law School graduate also worked in corporate law and served on the House Agriculture Committee and in the offices of Rep. Tim Murphy (R-Pa.) and former Sen. Jesse Helms (R-N.C.). As an intern, Leggett worked with Robert Spencer, when he was U.S. attorney for the Eastern District of Virginia, and Erskine Bowles, when he was chief of staff to President Clinton.
Soon after joining the committee, Harding helped get last year’s water infrastructure bill (S. 612) passed into law. He is now mainly focusing on wildlife and oceans policies.
Harding previously worked for corporate law firms, President George W. Bush’s Energy secretaries and USA Synthetic Fuel Corp., a bankrupt coal liquefaction company. He earned his bachelor’s degree at Washington and Lee University and graduated from the University of Virginia School of Law, according to LinkedIn.
The counselors’ efforts are overseen by staff director Richard Russell, who earned a bachelor’s degree in biology at Yale University, and deputy staff director Brian Clifford, who has worked for Barrasso in a variety of roles over the past decade.
Any reform legislation Barrasso’s team produces will need to secure the votes of at least eight Democrats on the Senate floor to beat a filibuster. Their first challenge, however, will be winning over Mary Frances Repko, Carper’s deputy staff director.
"If you have dealt with the environment, if you have dealt with energy, or if you have dealt with the history of the Senate and the House on energy legislation and environmental legislation over the last 20 years, you know Mary Frances Repko," House Minority Whip Steny Hoyer said in a January floor speech honoring her for a decade of service in his office. The Maryland Democrat also noted she had worked closely with Minority Leader Nancy Pelosi (D-Calif.) on "fighting partisan anti-environment riders."
Repko headed to the Senate Environment and Public Works Committee the following month, the committee she staffed from 2003 until 2007, when she left to join Hoyer. She has also served on the staffs of Sen. Maria Cantwell (D-Wash.) and former Sen. Russ Feingold (D-Wis.).
Prior to coming to the Hill, Repko worked on water issues for the World Wildlife Fund, a conservation group, and the Great Lakes Commission. The native of East Lansing, Mich., earned her bachelor’s degree at Johns Hopkins University and a master’s from the University of Michigan School of Natural Resources and Environment.
Republicans’ push for an ESA overhaul is likely to draw support from the Western Governors’ Association.
Under the leadership of Wyoming Gov. Matt Mead (R) in 2016, the conservative-leaning organization began advocating for ESA changes. At the same time, WGA endorsed a policy position urging Congress to reauthorize the law and this year convinced the National Governors Association to adopt a similar resolution (E&E News PM, March 2).
While Mead is no longer WGA chairman, policy adviser David Willms is still leading a series of meetings with a broad coalition of participants that aim to produce a specific set of recommendations that could make the ESA work better.
"We took some of the ideas that came out of that first year and have made them the subject of work sessions during the second year of this initiative," Willms said in a phone interview from Cheyenne, Wyo., which he, his wife and two young daughters call home.
The sessions will wrap up in May, and the WGA hopes to have a list of fixes ready to promote by midsummer.
"Whether that is a set of recommendations that is taken to the Fish and Wildlife Service for regulatory changes, whether it includes recommended statutory changes, policy changes — all of that is to be determined," he said. "But that’s what we’re moving towards, is seeing if there are places where there is consensus."
The recommendations are being put together by representatives from state and federal government as well as groups representing sportsmen, environmentalists and the energy, lumber and agriculture industries. But Willms, who has also served in the Wyoming attorney general’s office and worked in private practice, declined to say exactly who is involved at this point.
One unlikely participant: the conservation group Defenders of Wildlife.
"I certainly believe fundamentally that the Endangered Species Act could work better," said Jamie Rappaport Clark, the president and CEO of Defenders. "And if there are ways to work better, we want to help that effort."
Rappaport Clark, who was President Clinton’s Fish and Wildlife Service director, and her staff are also involved in the initiative in hopes that they can steer it more toward administrative reforms. That way, she said during an interview in her glass-encased corner office suite, "we can maybe save the battle legislatively, because it’s going to be pretty dramatic."
But if a GOP reform bill emerges, Rappaport Clark — who often works seven days a week and uses a treadmill desk when she’s in the office — is ready to lead the fight against it.
"I don’t see a reform effort strengthening the law" in this Congress, she said. "I can only see a reform effort that will undermine and weaken the law’s ability to achieve its purposes."
Rappaport Clark, an avid equestrian who lives in Virginia horse country with her husband and teenage son, is already working to educate Democratic senators about the damage that Defenders fears Republicans could do to vulnerable species and habitats. She is also attempting to rally other more broadly focused conservation groups, which are busy fighting to prevent the rollback of climate protection regulations and other environmental policies.
Her pitch is that the ESA is essentially the law of last resort for the environment.
"When the Clean Water Act fails, when the land laws fail, the Endangered Species Act will save enough," she said. "We’re not going to allow extinction."
That should be enough to mobilize the progressive community of Democratic lawmakers, environmentalists, minority groups, labor unions, religious groups and human rights organizations, Rappaport Clark reasoned.
"If — maybe I should say, when — the Endangered Species Act is truly under an assault, I have every expectation that folks will be there with us," she said, before tapping her desk for good measure. "Knock on wood, please. They’d better be."