Can a Wyoming governor change the nation's bedrock conservation law

Though it’s caused numerous headaches in Wyoming, from gray wolves to sage grouse, the ESA is precious to environmental and conservation groups. It has proved nearly untouchable despite annual skirmishes — the 114th Congress recorded more than 250 bills, amendments or riders that tried and failed to change the law.

In an environment where federal regulations are ripped to applause, many environmentalists are even less willing to open the ESA up to reform.

But, in the last six months, three separate movements have sprung up to change the ESA. The typical attempts to pare away protections are fueled by a charging Western Caucus, while a political move from the Trump administration appears in keeping with its deregulatory push. But, there’s a bipartisan approach, still in draft form, that started with Wyoming’s governor.

So far, it’s not caused as much friction as one would expect.

Even in the conservation community, the bill attached to Mead – proposed by Sen. John Barrasso — may have the most traction. Amidst the most divisive political climate since the Civil Rights Era, Wyoming could play a critical role in shifting America’s cornerstone of conservation without bringing down the house.

A good reputation

“My sense was that Governor Mead took this very seriously.”

John Freemuth, director of the Cecil D. Andrus Center for Public Policy at Boise State University.

Barrasso is known for his pro-business stances, many that come at the expense of environmental regulations. Mead, however, has gained the reputation for attempting to balance the sometimes opposing demands of energy and the environment. The governor also held his ground last year when sage grouse protections that had been fostered under his leadership came under fire from the Trump administration.

If the coalition of ranchers, conservationists and oilmen weren’t already behind him, Mead’s decision to stand stubbornly in the middle of the road when tempers flared did the trick.

Sage grouse may be one of Mead’s lasting legacies. The governor, who is soon leaving office after two terms, is credited for shepherding the motley crew of interests that staved off an endangered species listing for the bird in 2015.

The governor is less known, until now, for pushing for an update to the ESA.

Mead introduced the Endangered Species Act as a topic for reform when heading the Western Governors Association. The group spent three years holding workshops and meetings, and Mead professed an open door policy. If someone in the West wanted to weigh in, they had a seat at the table. Barrasso’s legislation emerged from that work.

Barrasso said he wanted to replicate the governors’ bipartisan, collaborative effort again when the senator introduced the draft bill in early July. He pulled in the Wyoming governor to testify before the Senate and has kept Mead’s name closely attached to the bill.

A modest proposal

“Change means altering the status quo. Change means moving from a known situation, however flawed, to something new. Hopefully, those who take hardline positions will be able to step back and see the wisdom in improving the ESA.”

Chris Mickey, spokesman for Gov. Matt Mead

Pat O’Toole’s ranch sits on the border of Wyoming and Colorado. His family has been there for more than 100 years, but over his career he’s seen the erosion of agriculture in the West.

That’s partly due to federal laws like the Endangered Species Act, he said. Farmers are terrified of finding an endangered species on their property.

“The regulatory burden has to be pretty much put on the ranchers,” he said. “Oil and gas has all the money in the world to (lobby for changes.) We don’t.”

O’Toole has been a partner in Wyoming’s sage grouse efforts – his ranch has significant habitat for the bird — and he’s the president of the Family Farm Alliance. O’Toole’s been in the room as Wyomingites worked through sage grouse disagreements and sat at the table with Barrasso’s staffers as they considered changes to the ESA.

Proponents like O’Toole promise that Barrasso’s bill does not reduce the ultimate power of federal agencies, though states will become more equal partners in some decisions.

Greater state authority is likely a fair ask.

Temple Stoellinger, co-director of the University of Wyoming’s Center for Law and Energy Resources in the Rockies, published a research brief last year that dug into the history of the ESA. She said states were originally intended to have significant authority over potentially endangered wildlife. That power diminished over time through interpretation. Her recommendations, noted in her paper, wouldn’t require the congressional changes under consideration, but rather a rereading of the existing law.

However, there are numerous examples of a federal law being applied in the way Barrasso’s bill seems to suggest. Both the Clean Air Act and the Clean Water Act allow state authority, she said.

John Freemuth, director of the Cecil D. Andrus Center for Public Policy at Boise State University, said the work on the ESA comes out of a legitimate grievance. Western states are weary of being ignored in areas where they should have greater power.

“I think what we are all struggling towards is some way to find a mutual agreement on how to move forwards, where the governors have more voice,” he said. Freemuth has moderated a number of panels for the Western governors and noted that Mead in particular seemed to take the ESA conversations seriously.

“They have to run their state,” he said. “They are elected under a constitutional system to be in charge of their state, and states also have wildlife responsibility.”

Collaboration between federal agencies and Western states often have a leveling affect. Yes, Wyoming, Utah and Nevada are at the table, but the fact that they have more authority than special interest groups like the Sierra Club often gets missed, he said.

The other West

“You don’t find a lot of bipartisanship there in the Western Caucus.”

Freemuth, Boise State University.

Whatever its failings, the Barrasso draft has one thing going for it. It’s bipartisan. The other ESA reform attempts are not, said Freemuth.

The Western Caucus, a union of conservative congressmen in the West, has not endeared itself to environmental groups. The caucus has regularly targeted environmental regulations and sage grouse protections while supporting oil, gas and mining on federal lands.

The caucus now has nine bills proposing changes to the ESA, deemed a “modernization package,” that have found support in groups like the Western Energy Alliance, the American Petroleum Institute and the National Rural Electric Cooperative Association.

These bills are broadly more aggressive than Barrasso’s. Some look to gut or significantly weaken the ESA, Freemuth said.

Wyoming has undertaken its share of fights with the federal government, joining lawsuits against federal regulations and criticizing policies that threatened the state’s fossil fuel industries. But on the ESA, Mead’s take is that a balance is possible, said Chris Mickey, the governor’s spokesman.

“Some situations call for challenges against the federal government and some do not,” he said in an email. “Improving the ESA is one that doesn’t and this is not at odds with our state’s politics.”

A flashing red light

“I think historically it’s been easier to have those conversations around polices or maybe even regulation (rather) than around actually opening the [ESA].”

Nada Culver, senior counsel and director of the BLM Action Center from The Wilderness Society.

The Trump Administration has been about as well received as the Western Caucus by the ESA’s defenders. The Center for Biological Diversity called the Interior Department’s proposals a “wrecking ball.”

“If these regulations had been in place in the 1970s, the bald eagle and the gray whale would be extinct today,” said Brett Hartl, government affairs director at the Center for Biological Diversity.

With less palatable proposals to change the Endangered Species Act rushing forward, some conservationists are looking at the collaborative option more favorably.

Two camps have emerged since Barrasso released his draft bill.

Some say Barrasso’s proposal guts the ESA. Groups like the Center for Biological Diversity and the Endangered Species Coalition argue that the draft bill politicizes science. The Animal Welfare Institute said it sets back years of conservation gains.

The other camp includes those who took part in the Western Governors discussions about reform, like the Audubon Society and the Environmental Defense Fund. These are some of the major conservation voices in sage grouse management and are in many cases the same people that constitute Mead’s coalition of partners in Wyoming.

They haven’t offered glowing reviews of the bill, but say they want to remain at the table. The ESA is just too important to be taken lightly.

It’s called a bedrock law for a reason, said Nada Culver, director of the BLM Action Center for The Wilderness Society.

Before an endangered species listing changes the game, states can be concerned about a species and work to save it. But the ESA is the ultimate driver in many cases. It’s the risk factor — the massive change in flexibility where ranchers, companies or states lose authority, because there is a law that says “we will do whatever it takes to save this species from dying out,” she said.

“It’s a big flashing red warning light,” Culver said of the ESA. “If it was an intermittent glow would people take it as seriously?”

What’s in a governorship?

“When Sec. Zinke was talking about wiping out all the land management plans, Mead was one of the guys going ‘Whoa, go slow there. We’ve got a lot of relationships and we don’t want them poisoned.’”

Freemuth, Boise State University.

The risk of a sage grouse listing was a driving force in Wyoming’s work to save the bird. But what was striking about the coalition formed around Wyoming was that it worked.

Mead gets a lot of credit for that, said Freemuth.

He now has a reputation for moving the needle on an extremely difficult topic.

When Zinke threw out suggestions last year to undermine sage grouse protection in the West, Mead became a political counterweight that was not paralleled in the public sphere at the time. He made various statements both publicly and in letters to the Trump administration, cautioning against drastic changes to the bird’s protections.

Within a few months the rhetoric had died down. Talk of population targets and captive breeding from Zinke have vanished. Though conservation groups are still fighting some of the proposed changes, and they are likely to result in lawsuits, the coalition in Wyoming has held together.

The question, however, is whether such a coalition can exist on a national stage.

“I think the sage grouse effort, in particular, it really was the Wyoming way,” said Stoellinger of UW. “Everybody had a common goal they were working toward. It was really a grassroots effort. That might be hard to replicate.”

For Freemuth, the governors certainly have a challenge because the ESA is a regional issue. But governors do have sway if they can convince their senators.

“It’s a big ‘if’ given the horrible partisanship we see these days,” he said. “But if Western senators of both parties weigh in on an issue … then that’s a lot of U.S. Senators.”

A lasting coalition?

“I’m concerned that the rider will fracture the groups that came together to protect Greater sage grouse.”

Matt Mead, in a July 18 letter to Congress opposing a rider that would have precluded sage grouse from an Endangered Species listing for 10 years.

Collaboration is a word often associated with Mead’s political persona, whose gentlemanly approach balances closed door meetings with wide public conversations. He’s relied on close loyalties and compromises, favoring task forces to edicts.

However, in a matter of months, many of the Western governors that guided the work on the ESA up to this point will be gone. Mead will have served his two terms. Idaho will lose its current governor and Colorado’s John Hickenlooper – who often stood shoulder-to-shoulder with Mead on issues like the sage grouse – will not run for another term.

Stoellinger said the ESA initiative will likely move forward. That’s the hope anyway, that the issue has enough momentum to be taken on by the new leaders.

Behind closed doors, the Mead consortium that worked together for years on sage grouse says it’s trying to hold together with this new challenge of the ESA.

“What we’ve decided (is) we just stick to our principles of working together, thick and thin,” said O’Toole, the rancher from Wyoming. “And it will emerge as the right way to do things.”

In contrast to the other attempts at revising the ESA, the Barrasso bill, built on this collaboration of partners, could be effective.

Maybe.