With Republicans now in control of both chambers of Congress, Senate Democrats can no longer simply ignore Endangered Species Act reform bills passed by the GOP-led House.
Democratic lawmakers will either have to take part in Republican ESA overhaul efforts or — as some environmentalists would prefer — fight the process from the start and hope for a presidential veto if legislation gets that far.
The push has already begun.
"It’s gotten out of hand," Senate Environment and Public Works Chairman James Inhofe (R-Okla.) said of the four-decades-old law. "It’s hard to go home back to Oklahoma and explain why there are things that have been listed for a long period of time and now all the circumstances have changed but they’ve never changed the listing. So we are going to be concerned about that and very active in this."
Inhofe believes ESA reform could garner bipartisan support and the cooperation of the White House, he told reporters earlier this month. For example, he feels that Dan Ashe, director of the Fish and Wildlife Service, has been receptive to Oklahomans’ concerns about the lesser prairie chicken, among other issues.
"I think we’ll be able to work together in a better way," Inhofe said of the service. "But it hasn’t been all that bad up to now."
How exactly he aims to change that relationship, however, remains to be seen. "We haven’t gotten that far in the weeds yet," he said.
The open amendment process for S. 1, a bill to approve the Keystone XL oil sands pipeline, has provided somewhat of a preview of Republican senators’ reform priorities. For example, measures to delist the lesser prairie chicken and limit the length and cost of ESA reviews were proposed but failed to garner the 60 votes needed to be attached to the bill.
House Natural Resources Chairman Rob Bishop (R-Utah), who will lead reform efforts in the lower chamber, has similar feelings about the need to revamp ESA.
"There has to be some kind of comprehensive reform," Bishop told E&E Daily. "Because it flat out is not working."
He argued that the ESA is ineffective, having managed to recover less than 2 percent of the more than 2,200 foreign and domestic listed species. Bishop said he would prefer to have the law reward conservation of species and their habitats, not punish landowners for having endangered plants and animals on their property.
But instead, he said, the law is "being used to control land and regulate everything forever and ever without actually accomplishing stuff."
Bishop said the House effort would "start with where we left off last session."
During the 113th Congress, former Natural Resources Chairman Doc Hastings (R-Wash.) created an Endangered Species Act Congressional Working Group. The changes it proposed were largely embodied in the "21st Century Endangered Species Transparency Act," H.R. 4315, which would’ve required federal agencies to publicly release all data used to make listing decisions, report funds spent on ESA-related lawsuits and specify that the "best" scientific data available include state data.
The White House threatened to veto the legislation, which passed the House on a largely party-line vote (E&E Daily, July 30, 2014). While a related bill, S. 2635, was introduced by Sen. John Cornyn (R-Texas) and co-sponsored by Inhofe, it failed to clear the EPW Committee.
Bishop acknowledged that getting any ESA reform enacted "is going to require getting people to sit at the table and actually talk about it. And so far there’s not a lot of incentive to do that."
Asked how he intends to bring Democrats, environmentalists and other groups that opposed the Hastings bill into the process, Bishop’s only reply was "good question."
Recent history suggests that Bishop will be hard pressed to secure any non-GOP support for legislation based on the Hastings bill. The 16-member working group that produced the legislation was entirely composed of Republicans, and no environmental organizations showed up to the working group’s public forum on ESA reform, claiming they’d only been invited the day before it was held (E&E Daily, Oct. 11, 2013).
‘The law has been remarkably successful’
The Obama administration says it is happy to play ball with congressional Republicans. But it already sounds like they’re on different teams.
"As I’ve said to Chairman Bishop and others, we are more than willing to sit down and talk about ways to improve implementation of the Endangered Species Act, and I look forward to working with Congress and others as appropriate," Ashe told E&E Daily in a recent phone interview. "But I also would underscore that we believe the law has been remarkably successful; that it contains important flexibility that we use on a daily basis."
FWS and its supporters often note that only 10 plants or animals protected under the ESA have gone extinct — less than one half of 1 percent of the listed species.
Administration officials and Democratic lawmakers have complained about a lack of funding to implement ESA.
"One of the great challenges that we deal with in implementing the law is a severely strained field structure," Ashe said. "So one reform that I’d like to talk to Congress about is providing us with the resources that we need."
House Natural Resources Committee ranking member Raúl Grijalva (D-Ariz.) suggested that Republicans’ ESA review process is unlikely to get much cooperation from congressional Democrats.
"What we’re going to see is the kind of disjointed efforts in the past to undo the legislation — to weaken it," he predicted. "I think those will intensify."
ESA will be tea party ‘piñata’
Environmentalists are unequivocally opposed to attempts to reform the ESA during this congressional session.
"How could you possibly envision any reasonable proposal coming through the House of Representatives — or, for that manner, the Senate — without it becoming a punching bag or piñata for anti-ESA tea party types?" said Donald Barry, the senior vice president of conservation programs at Defenders of Wildlife, in a recent phone interview. "I see no way for any bill to come across the finish line that would not be a disaster for the ESA, knowing the people that intensely dislike the ESA that are now in charge of the Congress."
Inhofe, in particular, is seen by many conservationists as an opponent of ESA — more concerned about the companies impeded by the law than the species protected under it. He didn’t attempt to dispel those notions in a recent Washington Post profile that quoted him joking about wearing boots made from "some endangered species."
"I have a reputation to maintain," Inhofe told the paper, obliquely referring to his anti-environmental voting record. In the course of his nearly 28-year congressional career, he has sided with the League of Conservation Voters, a centrist environmental group, 5 percent of the time — the second-lowest rating of all sitting senators.
Environmentalists doubt that Bishop will be much better.
"He’s not really interested" in bipartisan ESA reform, said Brett Hartl, the endangered species policy director for the Center for Biological Diversity, told E&E Daily earlier this month. "He was part of the Doc Hastings’ ESA working group in the last Congress, which put out their partisan reform bill."
Hartl, who worked for the Democratic staff of the House Natural Resources Committee before joining CBD, added, "[Bishop] was a sponsor, voted for all of their stuff, and I don’t anticipate him having real ideas. None of the things that they’ve proposed will help a single species anywhere. Their entire ESA reform agenda is based on making life easier for the oil and gas industry."
Wildlife advocates are preparing to oppose GOP-led reform efforts and expressed hope that the White House will follow suit.
"It behooves the conservation community to fight like hell to keep them from succeeding," said Barry, who served as the Interior Department’s assistant secretary for fish, wildlife and parks under President Clinton. The Obama "administration needs to power up on the ESA and push back on some of these amendments."
Business community hopes for ‘meaningful conversations’
But the resource development groups that make up the National Endangered Species Act Reform Coalition, or NESARC, argue that it’s too soon to write off the potential for bipartisan ESA revisions in the 114th Congress.
"There are a number of members in both the House and the Senate who have not had to take a vote on the ESA, and I’m looking forward to working with them and their counsel on the local impacts," said Ryan Yates, the chairman of NESARC, in a recent phone interview. "Just because you’re a Republican or a Democrat, I’m not going to assume you’re going to support or oppose changes within the act."
Yates is also director of congressional relations at the American Farm Bureau Federation, one of more than 50 NESARC member groups.
He noted that two Senate Democrats backed an ESA reform bill last session. But that legislation, S. 2084, died in committee, and both of its Democratic co-sponsors — Sens. Mary Landrieu of Louisiana and Mark Pryor of Arkansas, who introduced the measure — were voted out of office in November. (The "Common Sense in Species Protection Act," S. 112, was reintroduced on Jan. 7 by Nevada GOP Sen. Dean Heller).
Nevertheless, Yates said, "I’m very optimistic that we’ll be able to have meaningful conversations with all of these offices — both new and existing members — and look forward to the challenge that awaits us."
The most likely outcome of any species protection reform efforts, however, is more "muddle," according to Patrick Parenteau, a professor at the Vermont Law School and an expert on ESA.
"There is such animosity and, frankly, just so much cognitive dissonance around the law and how it actually works that I despair that you could come up with [a politically viable reform]," he said.
FWS "would be open to an honest negotiation of improvements in the act," added Parenteau, who was a special counsel to the agency in the early 1990s, when it considered special ESA exemptions for the spotted owl. "But I don’t think they’re going to be willing to open door to what might happen if they actually took an initiative and said, let’s sit down and really talk about an amendment. They know that would quickly spin out of control."
Parenteau recalled the 1970s, when ESA was signed by Republican President Nixon after winning overwhelming congressional approval — the Senate passed the legislation by unanimous consent and the House voted for it by a 355-4 margin (Greenwire, Dec. 20, 2013).
"So we’ve got a law that was the product of a time when we felt we could do everything," he said. "We said, ‘We’re going to stop extinction!’"
But with the benefit of hindsight, Parenteau said, we now know "it’s not so easy to do that."
Reporters Amanda Peterka, Scott Streater, and Daniel Bush contributed.