by Robert Lando
For years, moderate environmentalists have been concerned
that excesses in the enactment and enforcement of environmental laws would lead
to erosion of the public consensus that fostered the enactment of comprehensive
environmental legislation at every level of government after the first Earth Day
in 1970.
That concern was validated in this session of Congress when a massive overhaul
of the Endangered Species Act of 1973, authored by Central Valley Congressman
Richard Pombo, sailed through the House of Representatives at a speed normally
seen only for motions to adjourn for Christmas vacation.
The ESA became vulnerable to attack because it was written and interpreted so
broadly as to trump nearly every other public concern and because its
enforcement created an unworkable bureaucratic quagmire. Among government
officials, the greatest objection to ESA was its lack of flexibility. A public
agency could sink millions of dollars and years of work into a plan for badly
needed infrastructure only to have it destroyed by the discovery of a single
member of an endangered species near the area of work. ESA contains no process
for balancing cost of enforcement against public benefit.
ESA also provides for no limits on its impact on private property. Not only does
it limit the development of property containing habitat for endangered species,
it has been interpreted to prevent a farmer from engaging in farming operations
that could harm protected species.
A notorious example was the Central Valley farmer arrested for killing an
endangered kangaroo rat while disking his fields. More than a few critics of ESA
have noted the irony of having a Third Amendment to the Constitution that
specifically protects citizens against being required to provide quarters for
their country's soldiers, but lets the government require that they provide
housing for the nation's rats.
ESA has been interpreted by the courts to equate
modification of a protected species' habitat with harming individual plants or
animals. As a result the Act casts a shadow over much of the United States.
In 2003 and 2004, the U.S. Fish and Wildlife Service, amid considerable public
uproar, designated 4.1 million acres in California, including large areas of
Solano County, as critical habitat for the threatened red-legged frog. Since
large numbers of these frogs can be grown in captivity very quickly ( a female
red-legged frog lays up to 5,000 eggs at a time) it was argued that it should be
very easy to repopulate the frogs in very large numbers across their range
unless most of the land designated as ”critical habitat“ for them wasn't
really suitable.
Opponents of ESA in its current form argue that decisions as to whether to list
species and what constitutes their critical habitat - decisions that can cost
local governments and the private sector billions of dollars - are often made
based on bad science or even just the anecdotal testimony of naturalists on
record as being against development in general.
It's not hard to trust a government census of large animals like wolves and
grizzly bears, but very few people search for reptiles and amphibians and
invertebrates, like long horned fairy shrimp, in a serious enough way to be able
to judge whether they are threatened or endangered.
The new legislation passed by the house requires that listing decisions under
ESA be based on sound science. However, the most sweeping change is a
requirement that property owners be compensated for loss of value to their land
resulting from enforcement of the Act. The result would be a huge reduction of
its effect on private lands.
If it clears the Senate, the new legislation would have relatively little effect
in California, which has its own legislation protecting endangered species and
which requires that development projects mitigate impacts on listed plants and
animals. But in many states, the effect could be huge. Moderates hope that House
passage of the Pombo legislation will spur environmentalists in the Senate to
negotiate a much needed, but more reasonable, overhaul of the Act.
Robert Lando is an attorney in Fairfield and specializes in real estate law.