By Donella Meadows

–September 25, 1996–

Endangered plants and animals contribute neither hard nor soft money to political campaigns.  People who care about nature are more numerous but less focused than people who want to log, mine, dam, drain, spray, pave or otherwise impose their will upon the few remaining patches of undisturbed nature.  So you can imagine what the latest rewrite of the Endangered Species Act looks like.

Environmentalists call it the “Kempthorne Species Destruction Act.”  It was drafted by Senators Dirk Kempthorne (R-Idaho), John Chafee (R-Rhode Island), Max Baucus (D-Montana) and Harry Reid (D-Nevada), along with representatives of mining and logging industries and — surprise — Interior Secretary Bruce Babbitt.  Babbitt called the resulting bill “an excellent first step,” whereupon several environmental groups demanded that President Clinton fire him immediately.

Like other bipartisan wonders emerging from our hard-nosed Republican Congress and soft-bellied Democratic administration, this bill is finely tuned to balance the nation’s competing moneyed interests.  It has nothing to do with preserving endangered species.  Rather, it ensures that the right to extirpate species is allocated only to those with money and power.

For example, there’s a small item buried in the final pages of the bill that allows the Secretary of the Interior to give any state, county or private landowner permanent exemption from the entire law, with no requirement for public notification or comment.  As High Country News reporter Jon Margolis remarks, “It is hardly common practice for any government to provide its citizens with a legal mechanism for evading a law.”

In the hands of a corrupt Interior Secretary (remember James Watt?), permission to extirpate a species could become an even slicker channel for political fund-raising than it is already.  Nowadays you have to bribe not only the executive branch but a large subset of the Congress in order to get a special endangered species exemption.  With the new bill you would only have to bribe the Interior Secretary.  (I expect the Congress to wake up before the bill becomes law and keep itself in the money stream.  I bring the point up here only to show the kind of thinking embodied in the Kempthorne bill.)

The old Endangered Species Act requires the Fish and Wildlife Service to check out any contemplated federal action — a Forest Service clearcut sale or an Army Corps of Engineers dredging project — to be sure it will not wipe out a species.  The Kempthorne Bill lets these agencies be their own judges.  After they declare their own plans innocent, the Fish and Wildlife Service will have 60 days to come up with an objection.  If there is none, the project goes forward.

Can’t you see the agencies dumping 900 “no effect” declarations at once on the F&WS, so there’s not a hope of responding within 60 days?  This practice will be aided by steady Congressional cuts in the F&WS budget.  Swamp the few remaining compliance assessors, and you’ve got the whole federal government exempt from the law.

The Kempthorne bill also gives mining, forestry, and grazing companies privileged access to government, keeps out public comment and public lawsuits, and requires detailed calculations of the costs of saving the salmon, say, but not the benefits.  But the worst part of the bill, in my opinion, is the hardening of the “no surprises” policy.

“No surprises” comes out of a 1982 amendment that allows the government to make “habitat conservation plans” — deals with landowners, allowing them to destroy the habitat of an endangered species, as long as they protect or restore some similar habitat somewhere else.  Habitat conservation plans could be a good idea, if developers weren’t in too much of a hurry to allow good studies to be done, if endangered species would pick up and move on demand, if the deals weren’t cut in private, if the government weren’t a marshmallow negotiator (remember that continuous need for campaign contributions), and if someone hadn’t had the bright idea of “no surprises.”

That means no surprises for the landowner, of course, not for the species.  If it turns out that the conservation plan was faulty, that the preserved land isn’t sufficient or is in the wrong place or is flattened by a hurricane, that the species population is falling faster than predicted, that another endangered species is discovered on the land, or any other “surprise,” the landowner cannot be required to take further conservation measures.  If a logging company, for instance, sets aside some nesting sites for spotted owls, the company can go ahead and cut down other nests, even at the cost of wiping out the owls or any other species.  The only alternative is that the government buy the land, if the owner is willing to sell and the government has the money.

The Kempthorne bill removes any public right to comment or sue for changes in habitat conservation plans, even if they turn out to be certain death for a species.

If the purpose of an Endangered Species Act is to preserve endangered species, the Kempthorne version makes no sense.  But then no sensible law can come out of a money-corrupted political system.  The proper response to that fact is not to settle, as the Clinton Administration seems about to do, for a senseless law.  The proper response is to change the corrupted system.

Copyright Sustainability Institute 1997