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.