Endangered Species Act In Limbo Politically Sensitive Measure Is Overdue For Reauthorization

This year - just like the past five years - it appears Congress will once again put off the politically distasteful task of updating the Endangered Species Act.

“I would just say it is extremely difficult in this environment to move any endangered species legislation,” Sen. Patty Murray, D-Wash., said in a recent interview.

Still, several lawmakers and lobbyists predict the Senate will take the first significant steps this fall toward reauthorization of the 1973 law, which had been written to expire in ‘93.

And they say that could send an important signal to next year’s Congress that tinkering with the nation’s best-known fish and wildlife protection law isn’t as risky as it used to be.

With conservative Republicans and liberal Democrats continuing to dominate the debate in the House, few expect that chamber to complete any action this year on the controversial Endangered Species Act.

But in the Senate, two key players - John Chafee, R-R.I., chairman of the Environment and Public Words Committee, and Idaho’s Dirk Kempthorne, chairman of its subcommittee on drinking water, fisheries and wildlife - appear to be making some progress on new legislation in negotiations with administration officials.

“Sen. Kempthorne is optimistic we are going to come up with something,” said Sen. Slade Gorton, R-Wash., a conservative, who pushed changes in the law over the past four years that were staunchly resisted by environmentalists.

“He has an amazing degree of patience and understanding of this. I have full faith in him. I think if there is a reasonable proposal, the administration will accept it,” said Gorton, chairman of the Senate Appropriations interior sub-committee.

Sen. Gordon Smith, R-Ore., also is “fully on board and wants to see the Chafee-Kempthorne bill go through,” his spokesman John Easton said.

But there isn’t actually a bill yet.

And with the exception of a few general platitudes about trying to emphasize incentives over regulation and improving scientific review of the status of species, nobody involved in the negotiations is saying much.

Aides to Interior Secretary Bruce Babbitt took the lead on the administration’s side of the table two weeks ago, when talks went into the early morning hours in the days before Congress adjourned for its August recess.

A spokesman for the White House Office on Environmental Policy referred queries about the talks to Babbitt’s office.

“These are serious discussions, and they are making progress,” said Mary Helen Thompson, an Interior Department spokeswoman.

“There is no deal yet,” she said last week. “Several important issues need to be resolved. But all in all, it looks like the arrow is pointed upward.”

Skeptics are quick to note that the same things were said in past years as Republican leaders and Clinton administration officials sat down to negotiate a new version of the law.

Murray, generally a friend of environmentalists, arrived in Congress in 1993, the year the law turned 20 and was scheduled to be reauthorized. Now her term is nearly up, and she’s still seen no substantial movement toward floor action.

“My experience in 4 years is that any endangered species debate that comes to the floor becomes divisive,” she said. “Whether or not you’ve got a plan put together before you get there or not, everybody starts trying to add amendments and trying to change it.”

After a Senate hearing with new Fish and Wildlife Service director Jamie Clark last month, Sen. Ron Wyden, D-Ore., concluded: “I don’t get the feeling that they are about to reach an agreement.”

Steve Quarles, a Portland-based lawyer who argued a key endangered species case before the Supreme Court in 1995, says they may be viewing the glass half empty.

He agrees, “Nothing is going to happen in the House.”

But he’s optimistic Chafee’s eventual bill will survive in the Senate, which he says would help “dispel a big negative.”

“For most people in Congress, to try to do something on the Endangered Species Act is political suicide,” Quarles told reporters last month at the High Country Institute for Journalism and Natural Resources in Missoula, Mont.

“Chafee’s bill will prove it is not political suicide,” he said.

Quarles is confident the mood has changed in the two years since he represented loggers from Sweet Home, Ore., before the U.S. Supreme Court.

Quarles lost that case. The high court ruled that the law’s protection of wildlife habitat can extend to private property. The ruling prompted a two years of general wrangling in Congress over proposals to limit the act’s reach to private property.

Among those proposals were bills by Sens. Gorton, Richard Shelby, R-Ala., and Billy Tauzin, R-La., that would have forced the federal government to pay land owners when wildlife protections restricted their use of their land and given the interior secretary broad powers to forgo protection of rare species.

“It was fantasy,” Quarles said of the extreme nature of those bills.

Now there’s a different climate, he said, partly because of steps President Clinton has taken to help private land owners.

The keystone is Clinton’s so-called no surprises policy, which promises landowners protection from future wildlife regulations if they enter into habitat conservation plans - HCPs - and agree to manage their lands in certain ways.

“This administration has done an excellent job of making the ESA more user friendly,” Quarles said. “The steam has been taken out of the kettle a little bit.”

That, combined with Chafee’s reputation as a moderate, has prompted some Western Democrats - including Sens. Max Baucus of Montana and Harry Reid of Nevada - to take an active role in the bargaining.

Some conservationists are not impressed.

“What Bill Clinton is trying to do is laudable on one level but highly disingenuous on another,” said William Snape III, legal director for Defenders of Wildlife.

“The reason there are more than 400 HCPs now is because private land owners are getting a very sweet deal,” he said.

“I challenge you to find any other business or entity in the world that gets a 100-year guarantee.”

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