If there is a Don Quixote of federal laws, it is the Endangered Species Act (ESA): For over three decades this law's regulations have endangered the species in distress that they are endeavoring to protect.
The House last Thursday took the first step toward injecting a dose of sanity into species recovery efforts by passing the Threatened and Endangered Species Recovery Act (TESRA), a bill that fixes the perverse incentives in the original legislation that pit property owners against wildlife. But the Bush administration will have to do some political heavy-lifting to push this reform bill over the hurdles it still faces in the Senate.
The problems with the original Endangered Species Act are legion: Landowners and taxpayers have been spending the equivalent of $3.5 billion annually in ESA-related activities and managed to recover only 10 of the 1,300 species listed as "endangered" or "threatened" — a success rate of less than one percent.
Part of this failure stems from the fact that the Department of Interior, the chief enforcer of the ESA, has been forced to make listing decisions by legal fiat rather than by appealing to some kind of objective scientific standards. This has resulted in a terrible misallocation of precious conservation dollars toward species that either could not be saved or were in no need of saving. TERSA, crafted by California Republican Richard Pombo, would overcome this problem by requiring a peer review of all the scientific data before a decision is made to list a species as endangered.
In the interest of transparency it will also require the department to post on a publicly available website all the data that it used to make the endangered determination.
Another notable achievement of the Pombo bill is that it eliminates a provision in the original bill — much hated by both Democratic and Republican administrations — requiring the Interior Department to designate vast swaths of lands as critical habitat that are off-limits to human activity.
This provision has forced the department to divert funds to fend off lawsuits by desperate landowners resisting the designation to protect their livelihoods. But if it refrains from making the designation, it risks violating court orders that environmentalists easily obtain under existing law.
TERSA will release the department from this double-bind by eliminating the critical habitat provision, which has done little to protect species anyway. It will require, instead, detailed recovery plans that include clear timetables and recovery goals for every listed species.
Such plans will have the added advantage of closing a loophole that has allowed the Interior Department to impose onerous restrictions on property owners in perpetuity while taking no positive steps toward recovery. For instance, Colorado Governor Bill Owen notes that his state didn't get recovery goals for four species of fish for 14 years. Yet such goals might accelerate species recovery — and in so doing offer property owners hope for eventually regaining the use of their land as these species eventually come off the endangered list.
But the biggest achievement of TERSA is that it puts in place the right incentives for private property owners to join — not resist — the effort to preserve species.
It requires the Interior Department to compensate landowners at fair market value if restrictions on their property result in financial losses, something that the current law does not do. This will end the practice, common among ranchers, of pre-emptively sterilizing habitat that might attract endangered species to their property and debilitating recovery efforts.
In addition, under current law, landowners cannot plea for compensation in court unless they have first exhausted administrative remedies from the Interior Department. But the department is not required to rule on compensation claims in a timely fashion. This means that it can impose ruinous restrictions on property owners and then — by simply sitting on their claims — block their access to courts or compensation.
TERSA proposes a clever fix to release property owners from this insidious Catch-22.
Developers considering some new activity on protected land that they own will be required to first ask the department if this activity will have any impact on protected species. If the department does not respond within three to six months, the landowners can consider this as a green light to proceed. If the department responds but declines permission, it will have to negotiate fair compensation. If it fails to do so, the landowners will gain standing to go to court.
Either way, property owners will have more recourse and less uncertainty without wildlife getting short-shrift.
TERSA's common-sense approach to better accommodate the needs of wildlife and property owners has obtained the support of Hawaii's Neil Abercrombie, a liberal Democratic Congressmen, as well as several environmental groups. However, the bill faces a strong opposition in the Senate from extreme environmental groups who oppose the provisions to compensate property owners.
But these provisions are the most crucial part of the bill. There is no Pombo to prevent them from being diluted in the Senate. There is only Lincoln Chafee, a "moderate" Republican from Rhode Island, who is working on his own reform bill and has expressed only lukewarm support for them.
This means that the White House, which waited until the bill was on the floor of the House and certain to pass before voicing its support, will have to do more than free-ride if the bill is to get through the Senate unmolested.
The administration's free-spending ways and post-Katrina big government plans have already alienated its base. It can regain some of its lost footing by showing some leadership to push this bill through. Squandering a vital opportunity to reform a legislation that for 30 years has betrayed both the environment and property owners will be neither good policy, nor good politics.
Shikha Dalmia is a senior analyst at Reason Foundation.