On April 18, congressional conservatives turned their favorite anti-regulatory weapon toward a new target: the Endangered Species Act (ESA). At a hearing of the Water, Wildlife and Fisheries Subcommittee of the House Natural Resources Committee, the majority pushed no less than three Congressional Review Act (CRA) resolutions aimed at blocking ESA protections. Testifying at the hearing in response to these attacks was Center for Progressive Reform Member Scholar Rob Fischman, a law professor at Indiana University Maurer School of Law and a widely recognized ESA expert.
Despite passing with nearly unanimous support in 1973, the ESA quickly began to provoke intense political debate. The intensity of that debate has only increased in the decades since. At this point, nearly everyone agrees that the law does not work as well as it could, but there are widely divergent views on what an effective fix would look like.
In short, as Fischman notes in his testimony, a serious conversation about comprehensive reform of the ESA — one that would fulfill its conservation goals while not unduly harming affected communities — is long overdue. Specifically, Fischman lays out the following reform blueprint:
I suggest the committee refocus its efforts to promoting collaborative conservation. That will require more funding for state agencies to prevent declining species from sliding to imperilment. It will require more appropriations for the Fish & Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) to list species while they are still threatened rather than delay until they are endangered. It will require better coordination with agricultural subsidies and other programs to offer more incentives for private land managers to engage in habitat recovery efforts.
Unfortunately, the approach taken by the conservative majority in the hearing — and especially the indiscriminate blunderbuss deployment of the CRA — was far from the serious conversation we need on fixing the ESA so that it better serves wildlife, ecosystems, and our economy.
As Fischman more diplomatically puts it, “piecemeal legislative fixes for specific species or local projects will not improve the performance of federal agencies in meeting the objectives of the ESA.” He adds, “Even worse would be to enact carve-outs from the ESA through the Congressional Review Act (CRA). The CRA resolutions the subcommittee is considering would create irreconcilable conflicts with the judiciary and thwart adaptation to unexpected circumstances.”
Fischman provides an insightful diagnosis of the current flaws in the ESA and why the law generally pleases no one. He then turns to the three specific CRA resolutions under consideration at the hearing and why they would make the current problems with the ESA worse, instead of better.
Specifically, the CRA resolutions would target a Biden administration rule that repeals a Trump-era rule defining the term “habitat” as it is used in the ESA, an action to reclassify the northern long-eared bat from threatened to endangered, and another action related to listing different population segments of the lesser prairie chicken while also establishing alternative protection requirements for that species — meant to provide more flexibility for individuals engaged in agricultural activities that might accidentally harm members of the species.
Fischman concludes his testimony by urging lawmakers to do the hard work of instituting comprehensive reforms to the ESA aimed at the goals of biodiversity protection and increasing flexibility for commercial activities that might otherwise be affected by implementation of the law’s provisions.
That's sound advice. Let’s hope the subcommittee members heed it.
You can check out Rob's subcommittee testimony below.
Banner image by Flickr user Larry1732, used under Creative Commons license CC BY 2.0.
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James Goodwin | April 20, 2023
On April 18, congressional conservatives turned their favorite anti-regulatory weapon toward a new target: the Endangered Species Act (ESA). At a hearing of the Water, Wildlife and Fisheries Subcommittee of the House Natural Resources Committee, the majority pushed no less than three Congressional Review Act (CRA) resolutions aimed at blocking ESA protections. Testifying at the hearing in response to these attacks was Center for Progressive Reform Member Scholar Rob Fischman, a law professor at Indiana University Maurer School of Law and a widely recognized ESA expert.
Alice Kaswan, Catalina Gonzalez | April 20, 2023
The landmark Inflation Reduction Act gave the U.S. Environmental Protection Agency (EPA) $3 billion to fund a wide range of pollution reduction, clean energy, and climate resilience measures in the nation’s most marginalized communities. At issue now is how the agency will allocate the funds to eligible communities and projects.
Daniel Farber | April 19, 2023
As you’ve probably heard, the Biden administration has proposed aggressive new targets for greenhouse gas emissions from new vehicles. That’s great news. One really important aspect of the proposal relates to the justification for the proposal rather than the proposal itself. Following a recent trend, the justification is based on the factors specified by Congress rather than on a purely economic analysis. That may not sound like much, but it’s a really big deal. Among other things, this will shift influence on the regulatory process somewhat away from economists and toward lawyers.
Karen Sokol | April 18, 2023
On March 29, the United Nations (UN) General Assembly passed a landmark resolution asking the International Court of Justice (ICJ) for an advisory opinion on state obligations relating to climate change and the consequences of breaching them under several sources of international law, including the UN Charter, human rights treaties, and international customary law. The import of both the request and the opinion, however, is not just about Earth’s climate system and the extent of state obligations for protecting it; it is also about the potential for more equitable, just, and effective international governance.
Daniel Farber | April 17, 2023
On April 6, the Biden White House released proposed changes in the way the government does cost-benefit analysis (CBA). CBA has been a key part of rulemaking for 40 years. The proposal is very technical and low-key, but the upshot will be that efforts to reduce carbon emissions will get a leg up. In particular, the changes will support higher estimates of the harm done by each ton of carbon emissions (the “social cost of carbon” in economics lingo).
Kimberly Shields | April 17, 2023
Chester, Pennsylvania, located in Delaware County just southwest of Philadelphia, was founded in 1681, making it the oldest city in the state. Situated directly on the Delaware River, Chester was a manufacturing and industrial community for much of its history, though that activity began to decline starting in the 1950s. That legacy and other factors make the city of 32,000 potentially prone to a catastrophic toxic flooding event, now and in the future as the effects of climate change continue to intensify.
Sophie Loeb | April 12, 2023
On the 16th of every month, I dread it: opening my Duke Energy bill. After the shock of seeing our first electric bill of $182 back in October 2022, I knew we were in for a long winter. I thought I was imagining bills going up every month, but it’s not all in my head. In December 2022, Duke Energy rates where I live in Asheville, North Carolina, rose 10 percent due to increased fuel costs. I’m in a privileged position, but the price hike still hurts. But there is a better way.
Katlyn Schmitt | April 11, 2023
On April 10, the Maryland General Assembly passed the Private Well Safety Act (HB 11/SB 483) before it wrapped up the 2023 legislative session at midnight (Happy Sine Die!). With its passage, the Private Well Safety Act will provide roughly 830,000 Marylanders who get their drinking water from a private well with the necessary resources and information to monitor and safeguard their household drinking water and ultimately protect their and their family’s health.
Federico Holm, Katlyn Schmitt | April 10, 2023
The Maryland Senate has just one day left to pass a bill that would deliver greater energy savings for Marylanders through the EmPOWER program — the state’s energy efficiency and weatherization program. The bill would build on the success of the EmPOWER program by ensuring lower energy bills for low-wealth Marylanders, as well as greater public health and climate benefits that coincide with improved energy efficiency.