(Courthouse News) The Republican chairman of the Senate Environment and Public Works Committee introduced a draft bill this week that has conservationists worried.
The legislation proposed by Wyoming Sen. John Barrasso will significantly revamp the Endangered Species Act, but critics of the move say it will essentially gut the law.
Jason Rylander, a senior attorney with Defenders of Wildlife, is one of many such critics to raise concerns about the proposal.
“The bill would undermine the Endangered Species Act in a whole lot of ways,” Rylander said in a phone interview.
Republicans have long sought to eliminate or weaken the law and give more regulatory control over its implementation to states, landowners and industry. Barrasso’s draft bill, which he introduced Monday, would do just that, while reducing the role of the federal government.
Under Barrasso’s draft legislation, impacted states must be consulted on recovery goals and habitat objectives when any species is listed, delisted or down-listed as threatened or endangered, while states would lead recovery efforts through species recovery teams.
Barrasso, one of the Senate’s leading critics of the Endangered Species Act, insists that the overhaul of the landmark 1973 bill that helped bring the bald eagle back from extinction will actually improve recovery rates for threatened and endangered species.
“When it comes to the Endangered Species Act, the status quo is not good enough,” Barrasso said in a statement. “We must do more than just keep listed species on life support – we need to see them recovered. This draft legislation will increase state and local input and improve transparency in the listing process.”
Rylander however says the proposed bill would significantly weaken transparency, particularly concerning changes it would make to the ways in which conservation groups and members of the public can seek accountability through federal courts.
The draft legislation proposes delaying federal judicial review of any decision to delist a threatened or endangered species during the monitoring review period required by the Endangered Species Act, which Rylander said can take up to five years.
“There’d be no opportunity to review the scientific soundness or lawfulness of a delisting decision for at least five years,” he said. “And during that period of time an imperiled species could be hunted or habitat destroyed or other impacts, and there wouldn’t be any opportunity to challenge that decision to delist.”
Right now, members of the public can go to court to challenge decisions to delist threatened or endangered species, or to enforce mandatory deadlines for ruling on public petitions to list or delist a species.
But Republicans have long complained that such litigation comes at great tax payer expense because of the money it takes for the government to defend these lawsuits.
In 2012, the House Committee on Natural Resources accused groups like Defenders of Wildlife of making millions off of what they deem “frivolous” lawsuits.
“These groups, and their lawyers, are making millions of taxpayer dollars in profit by suing the federal government,” a 2012 press release says.
Republicans have also long complained that such litigation cuts states and industry out of decisions made under the Endangered Species Act.
A 2017 report from the Government Accountability Office, however, undercuts that claim. The study found that settlements reached in Endangered Species Act deadline lawsuits did not alter the public’s ability to comment on proposed listings and de-listings during the rulemaking process, which is open to input from citizens, industry and state and local governments alike.
Nonetheless, Barrasso’s draft legislation would require the participation of state and local governments to settle these lawsuits.
Barrasso worked closely with the bipartisan Western Governors Association on the bill, which said in a Feb. 14 letter that it largely supports the draft legislation, including the provision that would delay court intervention.
“Delaying judicial review will allow state management plans to be implemented and evaluated for success,” the letter says.
Conservations meanwhile have noted that the Endangered Species Act is implemented only after states fail to take adequate steps to protect a species, and Rylander pointed out that states are not always equipped to manage Endangered Species Act programs.
Delaying judicial review during the monitoring program could put already-threatened or endangered species at risk, he said.
“It’s critically important for the public to be able to check on delisting actions so that we know that when a species gets delisted it has been appropriately delisted because it has met recovery criteria under the act,” Rylander said.
Rylander suggested that both the U.S. Fish and Wildlife Service and the Marine Fisheries Service have come under political pressure at times to prematurely delist a species before scientific data shows they are recovered enough to warrant delisting.
“In those circumstances it’s critically important that we be able to seek judicial review of those decisions,” he said.
Offering an example, Rylander said the U.S. Fish and Wildlife Service tried numerous times to delist or down-list the Northern Rockies subspecies of the gray wolf.
“We won a variety of lawsuits over the years that showed that the service was either improperly segmenting the broader listing or relying on state management plans that were not adequate regulatory mechanism as the act defines them,” he said.