Endangered Species

NWF's Kostyack and NCPPR's Ridenour go head to head over House species legislation

As House Resources Committee Chairman Richard Pombo (R-Calif.) moves forward with changes to the Endangered Species Act, two top experts debate his controversial bill. John Kostyack, senior counsel with the National Wildlife Federation, and David Ridenour, vice president of the National Center for Public Policy Research, explain why the bill does away with critical habitat requirement and discuss financial incentives included for landowners. Kostyack and Ridenour also describe Democrats' response to the bill and look ahead to the timetable for action in the Senate.


Colin Sullivan: Welcome to OnPoint. I'm Colin Sullivan joining us today to talk about efforts to rewrite the Endangered Species Act are John Kostyack, senior counsel for the National Wildlife Federation, and David Ridenour, vice president for National Center for Public Policy Research. Gentlemen thank you both for being here.

John Kostyack: Glad to be here.

Colin Sullivan: An ESA rewrite passed the House Resources Committee last week. This week it's supposed to go to the House forum. My first question John, let's start with you, why are they moving this process so fast? Why, 23 House Republicans yesterday, led by, last week, led by Chairman Sherri Bullard of the Science Committee said let's slow down. Why go to the floor so fast? Why so fast?

John Kostyack: I think the reason is pretty obvious. This bill, if ever shown the light of day, would never stand the test of time. It is an affront to American values. When the American people find out what's in this bill they're going to be outraged. People in this country love their wildlife. They love wildlife habitats. They want a place of clean rivers and streams to go and play with their kids. And when you have a bill like this it takes away the fundamental habitat protections that we've relied upon to save hundreds of species from extinction. That's an outrage and I think when members of Congress hear from their constituents about this they're not going to be able to vote for it. And Mr. Pombo knows that, he wants to move this bill as quickly as possible before the word gets out.

Colin Sullivan: David is that true? Are they trying to move it ...

David Ridenour: Well, I really think that the biggest outrage is the failure of the ESA over the 32 years it's been on the books. Less than 1 percent of the 1,300 domestic species, which have been given a special protection under the ESA, have managed to recover over that period of time. And it's a big question as to whether any of those actually recovered due to the Endangered Species Act.

Colin Sullivan: But before we get into the details of the bill, why move it so fast? Why not take a step back and give members more time to take a look?

David Ridenour: Well I think that's something that you'd have to ask the House Resources Committee folks. I'm obviously not a member of Congress and not a member of the House Resources Committee. But obviously there's an awful lot of people for a very long time to get some relief and people are listening.

John Kostyack: Right, yeah, there's two points that I'd like to respond to, first of all that's an extremely misleading statistic that Mr. Ridenour and Mr. Pombo have been trotting out for the past few years. The fact that we haven't gotten species to the point of recovery and delisting is not the fault of the Endangered Species Act. The scientists who-the experts on these species have written the recovery plans that all state for biological reasons alone it's going to be 40, 50, 60 years to restore the habitats and get the population numbers back. So it's a red herring Mr. Pombo is using to try to get people all upset about the Endangered Species Act being a failure. It's also funny to hear Mr. Ridenour say we need relief. Well that's really what this all is about. It's about taking away all of the habitat protections that get in the way of certain developers. And if that's what it's about how are we going to get closer to the goal of recovery? We're all in favor of recovering endangered species. We would love to get the point where there are healthier populations of species and healthier habitats. That's the mission of my organization, but taking away the fundamental habitat protections of the Endangered Species Act is probably a bad idea if you want to get to recovery.

Colin Sullivan: David, I'll give you a chance to respond.

David Ridenour: Well, I would disagree with that simply because of the perverse incentives that are built into the ESA. Basically if somebody, a farmer, a rancher, somebody out in the hinterlands finds a species on their land they have a disincentive to have habitat on their land because Fish and Wildlife Service will come in and heavily regulate them. They lose all economic use of their land, many of them, so this is a real problem. That's why the Endangered Species Act has failed. It hasn't failed for the reasons that you have said. It is because landowners and species are mortal enemies under the current regime of the Endangered Species Act. We have to change that.

Colin Sullivan: Well let's talk about this specific bill that came out of the committee first of all and then you can address those concerns. Now there were more extreme drafts that Chairman Pombo put out earlier this summer. The bill that actually-are you unhappy with the bill that came out? I mean some Democrats on the committee supported it. It seems like it's a more moderate version than the extreme versions that came before. Are you still unhappy with it?

John Kostyack: Well actually I think it's just as extreme. Those Democrats who supported the bill were going to support it regardless of what was in it. There's a lot of deference to the chairman, he has a lot of power. Fundamentally all the fundamental habitat protections of the act have been severely weakened or completely removed. This business about the act being contrary to private land owners-in fact, my organization has always supported getting resources to private land owners who want to do something positive on the land. But what you do in a situation when the last remaining habitat for a species is in the path of a bulldozer? And if you don't have some kind of safety net mechanism to deal with that situation, which unfortunately is all too common, if you don't have those fundamental safety nets then we're going to lose species at a rapid rate. And that's why we're fearful. We have all these species, such as the bald eagle, the Florida panther, the grizzly bear in Yellowstone that have made these amazing comebacks under the Endangered Species Act. Do you think those comebacks would've been possible if we hadn't protected the habitat? That's not the case. That's not to say-

Colin Sullivan: Do you think there's a way to get rid of critical habitat language and still protect species? I mean is there a compromise?

John Kostyack: Oh, sure, yeah. In fact, that compromise has been on the table for a while now. The fundamental concern about critical habitat is we're not giving the scientists enough time. We don't want to have slipshod critical habitats. You've heard the complaints about the biologists not getting it right. We'll of course we support getting it right. We want to identify real habitats that really need conservation, so we've supported pushing back the identification process into the recovery planning process to make sure the scientists have the tools to get it right. That has nothing to do with what happened in the committee yesterday-last week, because what happened in the committee is they eliminated the critical habitat as a safety net protection and they replaced it with a bunch of voluntary measures. And anything that might have been conceivably have been mandatory in the act, you would get compensated if you-and by the way, we're not stopping development. The way the act works is if you want to have a development go forward in an endangered species habitat there's a permitting process. The act has no record. You say virtually always stops development; if that was the case we would have big problems. I'm want you to tell me all of these hundreds of cases you know about where development stopped, because I can tell you, every single one of them if they had come in for a permit we would not have had a problem.

David Ridenour: Well as you know, many people can't afford those permits. If you're a person of modest means-

John Kostyack: Afraid, they're afraid.

David Ridenour: ... you simply can't do it and you can't wait. Some people are just simply too old to wait for the process to go through. Now I'm glad to hear that you think that there's a way of addressing this without having critical habitat, because obviously that has taken an awful lot of resources away from the Fish and Wildlife Service to actually get the job done that needs to be done. Basically, what they're talking about here is doing things that actually recover species instead of spending all of our resources, all of our manpower in all the lawsuits that come forward. And as an attorney, you being an attorney, I'm glad that you appreciate not having constant lawsuits.

Colin Sullivan: What about this point that scientists don't have enough time to review critical habitat? What's your response to that?

David Ridenour: Well they may not because there's so many different lawsuits that are going out there right now. Fish and Wildlife Service is absolutely to the limit and that is why we need to do away with critical habitat.

Colin Sullivan: Let's change the subject again to this issue of payments to land owners for land that you take for critical habitat designations. If you were living in the Southwest and your land was taken to build a public stadium or something like that, wouldn't you think it would be justified for you to be compensated for that land? And isn't that what Chairman Pombo is trying to set up?

John Kostyack: No, that's an appropriate use of our public monies. If your land is taken for a highway or for a stadium certainly you should be compensated for your land. The Endangered Species Act doesn't work that way. It doesn't take people's property. I challenged Mr. Ridenour to tell me of a single case where development has been stopped, he was unable to mention one because that's not the way the act works. The way the act works is that there is a balance struck. Development goes forward, but some kind of offsetting conservation measures are taken. If you don't have that compromise and you allow the development to pave over all of the last remaining habitat, that's how we continue the mass extinction crisis we were faced with when the Endangered Species Act was passed in 1973. So the real question is should we be paying land owners for this give and take? And if we do start that kind of precedent, then look at every other single environmental law, the Clean Air Act, the Clean Water Act, all these laws have permitting programs. If they open up for the Endangered Species Act then this same kind of logic would apply, pay the polluters to comply with the law under those laws as well. We can't open that up. We're very much, by the way, in getting resources-money, into the hands of private land owners who want to do the right thing. This is where the clear dividing line is between me and Mr. Ridenour. He wants to take the money and give it to developers who are able to game the system with their development schemes. I want to give it to the ranchers and farmers who want to do positive things on the land.

David Ridenour: You keep on talking about developers, developers, developers. The fact of the matter is ...

John Kostyack: That's who funds you, right?

David Ridenour: No, absolutely not.

John Kostyack: OK, who funds your organization then?

David Ridenour: I can tell you right now ...

Colin Sullivan: Let's give David a chance to respond.

David Ridenour: ... if you'd like, but we have received a total of $500 from the timber industry and that was back in 1994. We've blown through that money by now. In terms of specific individuals who have been harmed by this, take Marge Rector, who lost 90 percent of the value of her property just outside of Austin because of protections for the golden cheeked warbler. That's 90 percent for which she was not compensated. You're right it is not viewed as a taking when you regulate away somebody's useful value. That's the fundamental problem. When the Endangered Species Act prevents you from doing the things that you need to get done, taking away much of the value of your property, unfortunately, people aren't protected by that.

John Kostyack: Well I happen to know the case of Marge Rector and she did not apply for a permit. She did not lose 90 percent of her property value.

David Ridenour: She did! She lost 90 percent ...

John Kostyack: She claimed that, but with her ...

David Ridenour: She lost 90 percent of her property value and then you take ...

John Kostyack: Did she apply for a permit?

David Ridenour: Then you take the example of the ...

John Kostyack: I don't think she applied for a permit.

David Ridenour: ... of what has happened to many of the people with the red cockaded woodpecker. This is not a step forward when people view the species as a problem. As red cockaded woodpeckers get closer and closer and closer to your property people are harvesting their pine trees much, much earlier. And as you know red cockaded woodpecker depends on mature trees for its nesting site. Now that is not a step in the right direction. We need to turn this around and you're talking about paying people to obey the law, I think, is one of the things that you've said. No, what we're simply talking about is burden sharing. I'm willing to spend more money in order to protect species. I'm willing to pay more of my tax dollars for it and I think a lot of other people would as well because this is a public good. And we shouldn't insist upon individuals bearing the burden, which is essentially a national interest. I don't think the American people ought to pay for that.

Colin Sullivan: Well let's get back into the specifics of the bill if we can. Chairman Pombo has written in language that basically sets down new recovery plans for species. Do you disagree? I mean the new language basically says within two years for new species and then within ten years for species already listed, you have to come up with some sort of definable delisting recovery plan that sets goals, sets targets. Do you disagree with that language and why?

John Kostyack: Well the ten year provision, unless it changed, there was a lot of last minute maneuvers and I haven't seen every last word. But the ten year provision was only a tentative schedule and it wasn't clear that was enforceable. We certainly agree with the notion of having recovery plans, having them on a firm timeline. I think that's a consensus point. The problem is with the bill. It takes mandatory safety net protections and purports to protect habitats with a recovery plan, but then makes absolutely clear in the bill that the recovery plan is always going to be a voluntary document. So I think Mr. Ridenour got his agenda completely through this bill, which is all of the fundamental mandatory protections of the act are effectively gone and we'll be leaving it up to the whims of land owners. And it isn't just these tired stories about these individuals who are so burdened. That's not really what's happening. We're talking-the people who were in the committee room last week were the pesticide industry. They rushed in with their amendment. You know historically there was a give and take with the pesticide industry like there is with everybody else. You get to have your pesticides, you can market them, but there has to be some kind of restrictions. There have been some restrictions on the Endangered Species Act to protect salmon streams. You can't dump the chemicals into a stream without creating some repairing buffers. That's now gone. That habitat protection is completely eliminated. There is an exemption entirely from the pesticide industry now in this bill. That's the kind of things that are in this bill. We're losing all these fundamental protections for our wildlife for our children and our natural legacy and it's all under this mantra of property rights. And that's really not what's happening here.

Colin Sullivan: David, if you can address the recovery plans specifically and why they're necessary.

David Ridenour: Well first of all I think it makes a lot of common sense to have a recovery plan and to have time limits on it. And as you said this is largely a consensus opinion, but I would disagree with the point that this just absolutely eviscerates and guts the ESA. It doesn't. Frankly, by putting in some common sense proposals that would put people-and again, it remains to be seen whether in practice some of this works in terms of the compensation. We're not absolutely sure, for example, that people would end up being compensated, because the devil is in the details and we're going to have to see how all this emerges. But if you can get people where they are not fearful of the ESA they will cooperate and they will be helpful. I think all the American people want to cooperate and do what's right for species. They just have to be given the appropriate incentives and they also have to be in a position where they don't lose everything. They don't lose their retirement nest egg.

John Kostyack: Well I could just respond on the compensation point, because I'm going to make a challenge to Mr. Ridenour and Mr. Pombo. Are they willing to put this bill before the congressional budget office and have it scored for how many billions of dollars this compensation provisions going to cost? Because the way this bill is set up there's no ambiguity at all. The word 'shall' is in there. This is not a grant program for land owners, which by the way we strongly support. This is an entitlement program for any developer who can concoct a development scheme in or around endangered species habitat-automatic payment if there's any attempt to apply the Endangered Species Act to that development. So the real question is do the taxpayers want to pay for this? You say the taxpayers are willing to contribute to endangered species recovery, let's find out what the costs of this is and give them the choice between this compensation scheme or the scheme that we're talking about, the grant programs that we're talking about for doing something positive on the land.

Colin Sullivan: David, why won't Pombo go before the congressional budget-

David Ridenour: Well first of all, I cannot speak for Congressman Pombo. But I would simply say that if you're concerned about all the costs that this would entail why are you concerned about all of the American people paying for it as opposed to the individuals? You don't seem to be concerned about each and every day when people are having to lose their investments, lose their ability to modify their homes. You don't seem to be concerned about that.

John Kostyack: Oh, no.

David Ridenour: You seem to be concerned about the ...

John Kostyack: Oh, I am. I'm not concerned about people losing investments because that's not how it works. Let's talk about what's happened in Southern California as a result of these safety net protections. We've had developers who have come in with their proposals and they've agreed with local governments and the federal wildlife agencies to large scale conservation plans. Now have they lost money? I don't think so. All these developers are doing quite well and we have large swaths of open space that these communities can enjoy and that are increasing their property values. Same thing in the Gulf Coast that is suffering from horrible storms right now, if we didn't have those natural values protecting and buffering those communities we would be suffering economically down there. That's one thing that Mr. Pombo's bill doesn't get, that we think absolutely needs to be incorporated to the core value.

Colin Sullivan: I'm sorry, we're just about out of time, but I just wanted to return to politics and the process for just a second. Over in the Senate we're definitely seeing a slower process, where Lincoln Chafee is in charge of putting a bill through his subcommittee. But do you expect the EPW chairman James Inhofe to sort of take over from Chafee at some point? Maybe take a bill that looks a lot more like Pombo's than the bill that Chafee's likely to produce and at some point Inhofe will kind of take over that process in the Senate?

David Ridenour: Well I'll tell you this, I have absolutely no idea. He may do that. There's been some talk about that, but I have no way of knowing.

Colin Sullivan: Well can Pombo's bill get through the Senate? Is another way of asking it.

David Ridenour: I think it's going to be very difficult because obviously the Senate is a much different situation. You essentially have to have 60 votes in order to move anything at all. So it remains to be seen whether this can move in the House. You know part of the factor is going to be by how much it passes in the House. That may be taken as a message in the Senate. I really don't know.

Colin Sullivan: John, is your last line of defense the Senate?

John Kostyack: Yes it is. Actually our last line of defense is time. The more time we have to talk to the American people about what is in this bill, the more confident I am that we will be able to sink it. This bill is poison for America's wildlife. I've talked about the pesticide provisions that basically allow these poisons into our environment without any checks. And if you look throughout the bill there's all kinds of provisions like that that are waiving the fundamental protections that the American people have relied upon over the years. Once the word gets out on that it's going to be rejected.

Colin Sullivan: David, I'll give you the last word.

David Ridenour: Well I'll just say that probably if one comma was changed in the ESA you would also think that it was being gutted.

John Kostyack: No, actually that's not ...

Colin Sullivan: David Ridenour, John Kostyack, thank you both for being here.

John Kostyack: Thank you.

David Ridenour: Thank you.

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

[End of Audio]



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