Over the past few decades, few laws on the federal books have been more attacked – and protected with more intensity – than the Endangered Species Act.
Amended just three times since its passage under the Nixon administration more than 45 years ago and untouched since 1988, the ESA is a tough target for critics to hit.
While a typical year in the 1990s and early 2000s may have seen roughly five attempts to amend the law, efforts to curtail its protections — from state governments, captains of industry and members of Congress — have begun to intensify. Between 2011 and 2015, the law faced 33 legislative attacks in Congress per year, according to research by Ohio State University. In the following two years, the effort had escalated, with nearly 150 attempts to reform or curtail the ESA.
All of those attempts have so far been unsuccessful.
The conversation in Washington, however, could be changing, ushered in by a strange amalgamation of bipartisanship in Congress, carefully crafted policy platforms introduced from the bottom up and the hand of one of the U.S. Senate’s most influential – and media-savvy – Republican voices on environmental policy: Sen. John Barrasso.
Since last summer, Barrasso has been working on legislation meant to introduce a number of substantial reforms to the Endangered Species Act, with the ultimate goal of responding to an issue long raised by the states: the lack of state involvement in how the law is implemented.
“State and local experts are the ones on the ground – they understand the situation and they work with these species on a daily basis,” Barrasso said on the floor of the Senate last August. “They know the needs of these species and the unique challenges they face: the habitats and the threats to the species. My draft bill gives states the opportunity to lead wildlife conservation efforts because they are the most prepared and the most able to do it.”
Barrasso’s most recent efforts – which came from years of work under the Western Governors Association and spearheaded by former Wyoming Gov. Matt Mead – could be gaining momentum. While in the West, ESA designations for species like the grizzly bear are undergoing increased scrutiny as conflicts between species and humans have increased, many states around the country have found the law’s structure to be burdensome and onerous in other ways, Barrasso said.
“We know at this point 97 percent of counties in America – right now – have some species listed that is interfering with commerce and productivity in that county,” Barrasso told the Star-Tribune in an interview. “So that’s why there is a bipartisan effort underway – Republicans and Democrats on the committee, in the House and in the Senate – know we need to do something. The status quo won’t work.”
“It’s not just a one side of the aisle, partisan effort to try and force something through,” he added. “It’s trying to support a solution. No matter where a member lives, there is some sort of species listed on the ESA that has had an impact on the people working or living in that community.”
But changing the law won’t be easy. It has legions of supporters on the ground fighting to maintain the integrity of one of the United States’ bedrock conservation laws. They fear decentralization could lead to weakened protections for endangered species.
States in the West, with economies that often rely on natural resources, can have economic interests that conflict with conservation, such as the battle over oil and gas development in sage grouse habitat. Though critics of the Endangered Species Act argue that the act has not been successful, with few species ever achieving delisting, nearly all species listed as either endangered or threatened under the law still survive today, according to the United States Fish and Wildlife Service.
“The genius of the Endangered Species Act is it gets politics and economic considerations out of the way, and requires that all decisions to protect threatened and endangered species have been made according to the science and the science only,” said Eric Molvar, executive director of the Western Watersheds Project in Laramie. “Corporate interests have been trying for many years to get economic considerations to play a heavy role in whether or not we protect endangered species and, of course, it’s the economic interests that have driven endangered species to the brink in the first place.”
Fighting a popular bill
In his time in Washington, Wyoming’s junior senator has often fought loudly for policies that are popular in Wyoming, even if they aren’t supported by the nation at large.
In frequent television appearances and in high-profile speeches on the Senate floor, Barrasso has waved the Republican majority’s banner as a vociferous proponent of historically unpopular tax cuts, an ally to a president burdened by persistently high disapproval ratings, a constant supporter of the coal industry and, in the past, an opponent of same-sex marriage which, since 2011, has been approved of by a higher proportion of the country than those who oppose it.
For Barrasso, the Endangered Species Act could be his white whale. According to a 2018 survey by Ohio State University, the law remains one of the most popular pieces of legislation in effect today.
History is not on Barrasso’s side. California Rep. Richard Pombo – a long-time critic of the law – eventually managed to produce a reform package that passed the House in the mid-2000s, but never got heard in the Senate. Then there was Idaho Sen. Dirk Kempthorne, who reached an agreement in principle with the Secretary of the Interior in the late-1990s to create a reform package. That effort failed to launch, however.
Barrasso’s effort could be seen as the third legitimate attempt to come to some sort of bipartisan agreement to make changes to the Endangered Species Act – if he can mitigate the pitfalls that have felled past attempts. The reasons why past efforts have failed are numerous, according to David Wilms, a University of Wyoming lecturer and a policy advisor under Gov. Matt Mead, who helped write the Western Governors Association’s resolution behind Barrasso’s discussion draft.
Much of the opposition, Wilms said, can be oversimplified by one overarching theme: a general distrust of Congress. However, the political liability for politicians remains for potentially defying a constituency that may not understand the nuance of one of the nation’s most complex statutes.
“There’s a general fear of what happens when a well-intended idea gets put into the sausage-maker that is Congress, and what gets pushed out of the back end of that and if it changes to the point where it’s no longer recognizable with what you put into it in the first place, and now your name’s attached,” Wilms said. “There’s this fear of what happens in the lawmaking process.”
Why is ESA reform so difficult?
From its inception, the Endangered Species Act was always intended to maintain some sort of role for state-level input and involvement.
However, over the years that role has gradually been diminished, argues Temple Stoellinger, a University of Wyoming law professor and former policy advisory for former Gov. Dave Freudenthal. In a 2017 article in Ecology Law Quarterly, Stoellinger made the case that narrow interpretations of the law over the past decades have left its original intent unrealized.
“The original intent was to give states more of a seat at the table to be able to help the Fish and Wildlife Service implement the Endangered Species Act,” Stoellinger said. “As long as the states can meet an agreement with the Fish and Wildlife Service, and as long as the federal government is comfortable with the states’ ability to uphold the Endangered Species Act, I think parts of the actual function of the ESA could feasibly be transferred to the states under the original intent of Congress in the act of 1973.”
The issue, however, remains a political hot potato. As the relationship stands today, there might be some states that want more authority — as well as a reluctance to take on more authority from others, who might prefer to leave the tough decisions to the federal government.
“It’s also expensive,” said Stoellinger. “If you look at the joint resolution from Wyoming this year (Senate File 93 which, among other things, declared Wyoming could move its excess grizzly bears to California), you can see how expensive it is, and that’s just from Wyoming’s attempts to delist the bear. Think of the potential costs needed to manage all the species in the state, and there wasn’t a lot of forthcoming support to support the state’s taking over the implementation of the act. I think for those reasons, we didn’t see the original intent of the act coming forward.”
It’s a similar argument made by the law’s most strident supporters like the Center for Biological Diversity, who have long fought back against any reform efforts – largely due to a lack of resources at the federal and state level, and a distrust of the states to provide effective species management.
“The Barrasso effort sort of gets at ‘let’s give it to the states,’ while some states might not even want it,” said Brett Hartl, a spokesman with the center. “The question is, who’s going to pay for it, and why haven’t they done it already when there are already provisions in the law that allow them to engage? From our perspective, if you say you can’t do it, when you actually can, what they’re really saying is they want to take over but don’t want the strings attached that have the accountability needed to make sure states do a good enough job.”
And oftentimes at the state level, economic considerations win out over environmental concerns, Molvar said.
“States are so heavily influenced by their own politics, their own influential corporate interests,” Molvar said. “For example, when the federal government started drawing up nationwide sage grouse plans, the oil and gas industry managed to use its influence in Wyoming to radically reduce the level of protections for sage grouse.
“That’s what happens when states can get into the driver’s seat on these issues,” he added. “The politics intervenes, and it’s generally driven by economic and corporate interests that are diametrically opposed to preserving the endangered species in question.”
Building brick-by-brick support
Politically, reforms to the Endangered Species Act have been an inherently partisan issue for years, with Republican-controlled Western states often finding themselves naturally in opposition to the blue, coastal states on the other side of the issue.
In recent decades, that has culminated in a policy dictated by the federal government, which today is as strong as it’s ever been – to the chagrin of Western states.
“Whether it’s the Democrats or the Republicans running the shop, people in the West tend to get annoyed at top-down decisions that emanate from D.C.,” said John Freemuth, the executive director of the Cecil D. Andrus Center for Public Policy at Boise State University. “They’re annoyed at times from things coming out of this Department of the Interior, and they were annoyed at some times from some of the sage grouse stuff that came out at the end of the Obama administration, because they felt their local, collaborative efforts were being blown up by these top-down directives. We’ve got this huge tension right now on this stuff.”
This disconnect, said Freemuth, became particularly prescient during the 2016 occupation of the Malheur Wildlife Refuge in Oregon, where the rest of the country’s general ignorance of the nuance of public lands issues – and its relationship to the nation’s stance on policy – came into clarity.
Freemuth – a renowned expert on the politics of federal lands – remembered being interviewed on a Philadelphia talk show, and was asked why the Bundy brothers had such a problem with Black Lives Matter – confusing the activist group’s acronym, “BLM,” with that shared by the Bureau of Land Management.
“So I told them, at which point they go ‘who are they?’” Freemuth recalled. “They don’t even know who the BLM is when we’re talking about issues like sage grouse. That compounds it to some extent.”
Meanwhile, national activist groups on the right and left – and a reactionary national media environment – make communicating the nuance of complex policy a tall order for those looking to reform the law, leaving lawmakers with little room for error on rolling out reforms if they want to be successful in passing them.
“It gets framed in the politics very generally – ‘they want to destroy the grizzly bear’ or ‘they want to cut down all economic development – but the subtleties of the law shows it’s actually very strong, and with very confusing elements that you really have to sit down and learn about,” said Freemuth. “Those negotiations have to be very incremental, very subtle and not that visible.”
That power dynamic could be beginning to change, however, as states have begun to take initiative on their own. Democrat and Republican governors alike have, in the past several years, slowly begun to take the reins on their own approaches to species protections, helping to erase some of the doubts that linger with those wary of greater state-level control.
“After the Trump folks took over and decided they weren’t going to go forward with the Obama plans on sage grouse, what has just happened is at least three of the Democratic governors in the West have begun to alter their state plans to make them stronger than they were during the Obama era,” Freemuth said. “Those states are stepping up – they’re not going back to business as usual. So to me, you’re starting to see this fascinating example of ‘maybe the states can do this as long as there are some sideboards to making sure the species aren’t in jeopardy.’ That’s what we’re inching toward, I think.”
After numerous, unilateral failures by members of Congress, those looking to affect change at the national level have taken a different approach: starting from the ground up.
Several years ago, Mead worked with the Western Governors Association to bring together state leaders with numerous conservation and industry groups to develop a resolution laying out a number of high-level principles for the Endangered Species Act – an early attempt to find a collaborative path forward.
“We tried to identify a problem,” said Wilms. “He was very transparent at the beginning about having this big tent conversation about the Endangered Species Act and conservation generally – what’s working and let’s share best practices – and what’s not working, and let’s start generating ideas to see if there are ways we can agree on to make it work better.”
On year two of the effort, the group focused on taking these big picture concepts to see if they could distill them into a statutory or policy scheme, aiding that effort with similar conversations on a national scale. While there wasn’t consensus, Wilms said, it was further than the conversation had ever gotten.
“The consensus part that came out of this is that folks are willing to have a dialogue, which five years ago, people didn’t want,” he said. “They didn’t want to talk about this. The fact that people are still engaged at the table, talking with senators about possible solutions here, tells you that this process is working. It’s a question of whether or not it can succeed in this political environment. That’s something I don’t know the answer to.”
While Congress may appear polarized, there have been hints recently at a sort of reconciliation between the two parties in finding pragmatic means to common goals. A bipartisan public lands bill was recently signed into law and, earlier this month, Alaska Republican Sen. Lisa Murkowski and Washington Democratic Sen. Maria Cantwell introduced the bipartisan Energy Policy Modernization Act – a subtle development in a month defined by partisan-induced havoc on the Senate floor over the Green New Deal.
When it comes to success, in the end, it all comes down to salesmanship.
“People seem a little more willing to move to the middle again,” said Freemuth. “But I don’t want to oversell it – all it takes is one stupid thing to happen and the whole thing gets set back again.”