Eagle's Comeback Shows How House Bill Would Endanger Species

House "fix" to landmark law rushed through with no consideration of damage

Posted: 26-Oct-2005; Updated: 09-Nov-2005

Bald eagle

In the blink of an eye, the fate of more than 1,200 endangered and threatened species was put in doubt last month. The House of Representatives passed Rep. Richard Pombo's (R-CA) damaging endangered species bill in a rush -- the time between the 74-page bill’s introduction to its lone day of committee hearings to its final, squeak-by passage? Just 10 days.

Left out of the short discussion was how the Endangered Species Act -- the law of the land for more than 3 decades -- has brought species back from the brink of extinction. In total, 50% of listed species have stabilized or are improving.  Species that have enjoyed at least 15 years of protection (pre-1990 listings) are faring even better -- 66% are stable or improving.

We need only look at one animal's story to see the ESA's impact.  The bald eagle is perhaps the country's greatest wildlife comeback story.  Down to fewer than 450 breeding pairs in the lower 48 states in the 1960s, the species has rebounded to more than 8,200 pairs today.

That wouldn't be the case if Pombo's bill had been made law 32 years ago instead of the Endangered Species Act.  Here's why.  

Wrapping recovery efforts in red tape

For starters, it would have been a struggle just to list the bald eagle as an endangered species under Pombo's bill. Before formally labeling it "endangered," the Fish & Wildlife Service (FWS) would have had to detail the economic and national security impact of listing the species. For a bird that lives in 48 states and is affected by pesticide use, land development, highway construction, timber harvest and myriad other activities, such a task would be daunting for an understaffed, under-funded agency like FWS.

Next, once the eagle was on the list, thousands of entities would have to have been consulted before recovery could start. FWS would have had to consult with and address individual concerns of each of the 48 states, most of the roughly 300 recognized Indian tribes, and many of the tens of thousands of regional and local land-use agencies. Beyond those groups, the agency would have had to include parties "interest[ed] in the economic and social impacts" of eagle conservation on the team preparing the recovery plan. That means that real estate developers, highway builders, pesticide users and numerous others would have been deciding the eagle’s fate.

Fortunately for the bald eagle, the ESA calls for recovery plans to be designed by a scientific team.

The picture gets worse. Critical recovery time would also have been lost to countless other bureaucratic steps included in Pombo's bill:

• If any of the 48 governors, 48 state wildlife agencies, 1,170 counties where eagles live, or the tens of thousands of local governments had formally disagreed with "any part" of any regulation to conserve the eagle, FWS would have had to officially respond in writing, no matter how minor the detail.
• Before they could put the plan into motion, federal agencies (like the National Park Service and Forest Service) would have had to develop individual draft agreements, publish each of them for public comment, and publish responses to each and every comment received. The ESA has a public comment component that encourages awareness and involvement without drowning the government in red tape.
• Each time FWS revised a recovery plan for the eagle (which it has done twice), it would start all over -- the same extensive process of consulting with all the above states, tribes, and regional and local land-use agencies.

Removing the power to regulate pesticides

The bureaucratic hurdles proposed in Pombo's bill are enough to cripple species protections on their own, but the bill would do other damage, too. It would remove the power to use the ESA to stop the use of toxic pesticides like carbofuran. If that power had never existed, untold numbers of birds would have been killed, including bald eagles. 

Pombo's bill would have been a boon to developers. Any time any developer proposed a potentially harmful land use project, FWS would have had just 180 days to determine whether it would harm eagle habitat. If FWS failed to do so, the development could have gone forward, regardless of its impact on the birds. The current ESA builds in flexibility for FWS to allow development to continue, but with conditions. FWS has approved 120 different habitat conservation plans in this way, meaning that development and species protection can work together.

Had Pombo's bill been in effect, the FWS would have had to say a simple "no" to the plans. Then, the FWS would have had to compensate the developer.  Most amazingly, the amount of payment wouldn't have been determined by the land’s fair market value, but on the hypothetical revenue that might have been lost. The bald eagle would have been a goldmine for developers who would cash in for "dreaming big" and "losing big."

Fortunately, none of these ridiculous constraints hobbled the eagle’s recovery.

Because the law on the books was the current ESA, America’s symbol of freedom fought its way back from the brink. Despite what any critic says, ESA played a critical role bringing the eagle back. The 8,200 nesting pairs that soar above the nation today are living proof of the ESA’s success.

In the lead-up to the House vote of Pombo's bill, the eagle’s dramatic recovery was barely mentioned. There was no declaration of victory for America's symbol. No examination of what led to its recovery. No questions about whether Pombo’s bill might have crippled the eagle’s stupendous comeback and buried FWS in endless and expensive red tape.

No wonder. Ten days was barely enough time to simply recite the number of damaging elements of the bill, much less educate the House, the media and concerned Americans about the potential consequences of such a bad bill.  And it was surely too little time to soundly study the impacts of Pombo’s disastrous bill.

As the eagle’s story makes clear, there’s no point in replacing something that works with something deeply flawed.