June & July 2015 Legislative Threats to the Endangered Species Act

(C) Fish and Wildlife Service

The last two months have not only been a whirlwind--they've also made it abundantly clear just how vulnerable the Endangered Species Act ("ESA") is from congressional threats, despite recent polling indicating that over 90% of American voters support this landmark law.

First came the National Defense Authorization Act (H.R. 1735), which passed the House in May and the Senate in June. Between the two bills, there is plenty not to like including provisions that would delist the lesser prairie chicken, prevent the Fish and Wildlife Service from listing the greater sage-grouse until 2025, permanently remove the endangered American burying beetle from protection under the ESA and prevent it from ever being listed again, and harm sea otters by exempting the Navy from complying with the ESA and the Marine Mammal Protection Act when it comes to the species in two locations off of California.

Then came the House Interior Appropriations bill (H.R. 2822) which, as usual, contained numerous anti-ESA riders. One would strip gray wolves in Wyoming and the Great Lakes of ESA protections. One would eliminate tools that have been developed by industry and federal and state governments to protect the greater sage grouse and limit our options to properly manage this species and its habitat. One would increase the threats to the threatened northern long-eared bat. And one would block implementation of U.S. Fish and Wildlife Service rules and policies necessary to disrupt ivory markets and ensure that U.S. citizens do not contribute to the ongoing slaughter of African elephants.

Many more harmful riders were offered as amendments. For example, an amendment that would delist wolves in Oregon, Utah, and Washington was offered by Rep. Newhouse (R-WA), but never voted on. Amendments were also filed that would affect the Sonoran desert tortoise, rabbitsfoot and neosho mussels, preble's meadow jumping mouse, bald and golden eagles, and hundreds of other migratory birds including cranes, hawks, falcons, and songbirds. Legislators also filed amendments that would undermine the ESA generally by interfering with the Fish and Wildlife Service's ability to set priorities regarding species conservation under the Act and barring citizens from recovering attorney's fees under the ESA when they prevail in litigation or agree to settle. On the upside, Reps. Tsongas (D-MA) and Grijalva (D-NM) offered amendments that would remove many of the bad ESA provisions from the bill, but they unfortunately failed. The Interior Appropriations bill ended when House leadership pulled it from the floor due to a skirmish over the Confederate flag.

What happens next with these bills? It's anyone's guess. But we'll see when Congress comes back from recess and prepares a continuing resolution before October 1 and then a larger omnibus package after that.

Finally, Rep. Valadao's (R-CA) terrible "Western Water and American Food Security Act" (S. 2898) passed the House by a vote of 245-176. While the bill pretends to address California's complex water challenges, it does no such thing. Instead, it would mandate water deliveries that violate the ESA, resulting in harm to Delta fish and other listed species without providing solutions to the drought. In fact, the bill is so bad the White House issued a Statement of Administration Policy on it threatening to veto the bill if it comes before him.

It will be interesting to see how the rest of the year pans out but we definitely have our work cut out for us in terms of getting all these terrible riders out of these bills before they become law. For now though, Congress is on recess so we can all take a big breathe.