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Why Pombo's ESA Reform Bill [TESRA - H.R. 2834] Is A Step Backward
 9/24/05 by James Buchal
(Important Note: The ESA "Reform" legislation has bipartisan support. It is being fast-tracked through the House of Representatives. Please ask yourselves why. Is it really good for property rights, for access? The devil is in the details and the answer may come as a surprise. During this past week, I've read the bill text in its entirety (73 pages) almost a dozen times. Each reading brings a renewed and strengthened sense that I cannot support anything but full repeal of the ESA. You know that I am someone who cares about the natural beauty of this world, but I also care about the people, including those whose ways of life the 1973 version of the ESA have destroyed. Contrary to what so many folks are saying, this 'reform' legislation is no better. In fact, it has a vicious hook hidden in that language bait. Please let your members, family and friends know that I believe they are being blindsided and should not support this piece of legislation.)
September 23, 2005

By James Buchal jbuchal@mbllp.com
Nothing is all good or all bad.
The latest attempt to reform the Endangered Species Act (the Act), H.R. 3824, titled "The Threatened and Endangered Species Reform Act," or TESRA, contains positive features. However, this bill would make Section 7 of the Act even worse. This Section of the Act looms above all others for the carnage it has caused throughout the West. 
Section 7 of the Act declares that federal agencies must avoid taking action that would "jeopardize the continued existence of listed species." 
Lawsuits filed under Section 7 are responsible for exterminating small timber operators (owls), Klamath Basin farmers (suckers), doubling electricity rates in the Pacific Northwest (salmon), and creating countless other poster children for Endangered Species Act reform.*  
Once upon a time, the meaning of "jeopardize the continued existence of" was clear: Congress wanted to make sure that agencies did not exterminate a listed species.
If an agency did wish to take action that would do so, the agency would have to get an exemption from the "God Squad."
It was called the "God Squad" because the premise was that, if an exemption were given, the species would be exterminated. Other parts of the Act call for recovery plans for listed species, but Congress wisely recognized that some federal actions might have to proceed -- whether or not they impeded the recovery of listed species.
Pombo's bill changes Section 7 by adding a definition of "jeopardize the continued existence of" to the Act:
"The action reasonably would be expected to significantly impede, directly or indirectly, the conservation in the long-term of the species in the wild." 
This is a radical departure from the simple concept of not wiping species off the face of the earth. 
Under H.R. 3824, any and all federal agency actions must now cease if they are deemed to "significantly impede" "conservation" -- even "indirectly".  
From a definition already in the Act, we know that "conservation" means "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary."
In other words, "conservation" means doing everything necessary to fully recover listed species to the point where they can be removed from the list of protected species.  
If the Pombo bill passes, the question will no longer be whether federal agencies threaten to exterminate an entire species; the question will be whether or not what they do is would "directly or indirectly" impede the conservation programs of the fish and wildlife agencies. 
In a context where those agencies are infested with biologists who are eager to spend countless dollars to save a single fish or rodent, almost any use of public resources (other than paying said biologists) can -- and will be -- characterized as "significantly impeding" conservation.  
The inevitable result of Pombo's bill is that environmentalists will have a much more powerful tool for shutting down any federal agency action with which they disagree. 
To make matters worse, the Pombo bill removes the "God Squad" from the Act entirely, so that now -- when federal judges issue crazy Endangered Species Act injunctions http://www.buchal.com/salmon/news/nf84.htm -- the people of the United States will be utterly powerless to stop them through their elected representatives. 
It is true that we haven't elected anyone with the courage to actually convene the God Squad in a long time, but why on earth would anyone remove this safety valve from the Act?
Representative Pombo and Walden may not have fully considered the implications of their changes, but the meager benefits of their bill pale beside the larger harm these problems promise. 
If this is an innocent mistake, they should be willing to revise the bill to remove these changes to Section 7. 
If not, the  bill should be killed on the floor.
*Almost none of these animals were genuinely endangered, and Pombo's bill does nothing to solve the fundamental problem of bogus listings. Indeed, the bill arguably makes it harder to get rid of bogus listings -- because "fundamental error" may now be required instead of mere "error."
You have permission to reprint this article, and are encouraged to do so. The sooner people figure out what's going on, the quicker we'll have more fish in the rivers.
Copyright 2005, James Buchal.



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