The attempts of Congress, the American public and indeed of environmental groups to reauthorize the Endangered Species Act (ESA) have been spotty at best. Since 1993 the ESA has been up for renewal. Congress had an opportunity to reauthorize it in 1993-1994 when Senator Max Baucus (D-MT) (before his spine liquefied) introduced a decent bill in the 103rd Congress. Coupled with a solid ESA bill in the House, the environmental community had a good shot at reauthorizing. Instead of moving forward, however, the conventional wisdom in Washington, DC was that environmentalists should, as Michael Bean of the Environmental Defense Fund said, "wait for a better Congress."
November, 1994 ushered in the Newt Gingrich take-over of Congress by the dreaded Republicans - the 104th Congress. Congress quickly introduced a number of horribly anti-environmental bills, including an ESA listing moratorium rider and a bill to gut the ESA.
Those were bloody days for endangered species and their homes. At the start, the only fighters on the battlefield were small bands of grassroots activists so used to fighting impossible battles they were not cowed by "political reality." After months of holding the lines and working behind the scenes recruiting new allies, endangered species activists fought back. In the final tally of the 104th Congress, some very important battles were lost: the ESA moratorium, the Mount Graham rider and the Salvage Rider. On other fronts, however, we advanced. And, just as importantly, our opponents went too far and fell victims of backlash.
Several important factors stopped the onslaught and put us back in a winning frame of mind.
(1) Our community is always better at stopping than starting something. The 104th gave us many bad things to fight. By 1995, however, we had run out of bad things to say without having an alternative. This necessitated an offensive.
(2) We learned the hard way to reach out to "new voices" - the medical, sporting, faith and fishing communities, among others. In doing so, we re-learned an important lesson. All the conservationists in the world can't do squat by themselves. But by "working outside the box" we accomplished some significant victories: We stopped all the bad ESA bills from moving forward, and out of 15-17 riders introduced, we only lost two.
(3) Everyone got their hands dirty. Even the ivory-towered academics entered the fray and fought to protect the ESA. By working, instead of stewing and taking pot shots at each other, folks got things done.
(4) The combination of us hammering for stronger ESA protection from one side and the Wide-Abusers on the other saying Dirk, Slade, Helen and the rest weren't going far enough, allowed us not only to kick the shit out of the compromisers in the middle, but also to motivate many bystanders who otherwise would not have engaged in the debate.
(5) Grassroots litigators filed some tremendously effective legal challenges against the US Fish and Wildlife Service's attempt to gut the ESA.
By November, 1996, our forces were strong, we had beat up on the enemy, we had forward momentum, we were undivided and the issues were still black-and-white.
The 105th Congress changed all that. Dirk, Slade, Rich, Don, and even Helen, learned not to be so strident. Their new legislative attempts had a kinder, gentler look. By the middle of 1997, many of the good points I mentioned earlier had been erased. Pushing a protective agenda is now harder: We are working in 256 shades of gray instead of black and white. The public thought we had saved the day and went back to sleep. The one thing we didn't lose however, was our new voice.
Now, this is supposed to be an article about the Kempthorne bill, and halfway through it I'm just getting to the bill itself. Forgive me, but understanding why we have to stop a freight train no one saw coming down the tracks six months ago requires some background.
The Kempthorne bill, S. 1180, is designed to gut the ESA. Who could stop an industry-sponsored bill with the support of two "environmental" senators, Interior Secretary Babbitt, the White House and the leadership of both the House and the Senate? Well, the bill was introduced late last summer and was sure to be passed by November. Now it's the middle of April and still no vote - you figure it out.
The Kempthorne bill, S. 1180 is being called ESAin't for some very good reasons.
It ain't got anything to do with the recovery of endangered fish, wildlife and plants; it threatens to hurl species past the point of no return. It authorizes long-term, multi-species incidental take permits (sometimes called Habitat Conservation Plans) on non-federal lands. It also prevents modifications to HCPs in light of new scientific information or changed circumstances.
It attempts to eliminate the checks and balances, public participation and accountability that helps protect endangered fish, wildlife and plants from extinction. Specifically, ESAin't gives the Fish & Wildlife Service and the National Marine Fisheries Service only 60 days to issue a finding on whether HCPs or other plans will harm species. If the review is not completed in time, industry is free to proceed. These proposed changes to the current Section 7 consultation process would eliminate some, and possibly many, current consultation.
ESAin't gives big developers and multinational mining, timber and oil corporations 100-year loopholes that lets them destroy endangered species habitat until the year 2098.
S. 1180 is opposed by religious leaders, hunting and sportfishing groups and every nonprofit, grassroots conservation group in the US.
The Kempthorne bill - ESAin't - has been brought to a standstill despite tremendous odds. Why? Several good reasons. ESA fighters don't know when to quit - we just keep coming back for more! Anti-ESA constructions like HCP's and No Surprises, once thought to be benign by many, are now known to be evil, a tremendous change in public perception brought about by the untiring work of many grassroots groups who did a terrific job educating the public and the national environmental groups. The Wide-Abusers played a significant role by saying the bill didn't go far enough, creating a pincher movement of the ends beating up the middle. The White House, Babbitt and the Democratic sponsors of the bill, Senators Baucus and Reid, just never recovered from the fact that not one environmental group supports the bill. And, knowing full well that many readers of this esteemed Journal do not condone strategic pragmatism, the value of having a good, proactive bill in the House (Representative George Miller's bill) with 104 bipartisan co-sponsors to point to as an alternative cannot be underestimated.
Extractive industries, not satisfied that the ESAin't went far enough to line their greedy pockets, went to Senate Majority Leader Trent Lott (R-MS) and asked him to sponsor amendments to make the bill even worse. This caused the already besieged offices of Baucus and Reid to overload, tying the bill's sponsors in endless negotiations. Finally, knowing that the major criticism of the bill from the White House and Babbitt was the lack of a funding source for landowner "incentives," Kempthorne latched on to a scheme proposed by Senator Pete Domenici (R-NM) of selling $350 million of public lands to fund the ESAin't. This proposal was tacked onto the Senate Budget bill the first week in April. It appears to be too much even for the White House and Babbitt to swallow. Babbitt wants the ESAin't in the worst way, but he can't accept selling public land to pay for environmental "protection." Senator Reid has vowed to withdraw his support for the ESAin't because of Domenici's rider.
As it now stands, Congress is running out of legislative days this session. The bill has considerable support, but we have significant strength. So far, we've kept S. 1180 from the Senate floor. If we turn up the heat even more, we should prevail. If we waver, become distracted or lose faith, we will get trounced. I'm betting we will prevail. I'm betting further we will build on our current strength, put our heads together and come up with the means to pass a stronger ESA next year that will truly protect our natural heritage.
Roger Featherstone is director of the GrassRoots Environmental Effectiveness Network and is a member of the management team of the Endangered Species Coalition. Having traveled a path involving both years of Earth First! organizing as well as years in exile within the Washington, DC beltway, Roger is now based in Albuquerque, New Mexico and is happy to offer his analysis of the fight to stop the Kempthorne bill after a hiatus of many years from contributing to the Journal.