Briefing Paper on Congressman Pombo's Endangered Species Bill

September 19, 2005

Contact:  Michael Bean, Environmental Defense, 202-387-3500

This Wednesday (September 21), Congressman Richard Pombo will hold hearings on HR 3824 – The Threatened and Endangered Species Recovery Act of 2005. The bill could be voted on as early as next week.

This bill would severely damage endangered species recovery efforts and undermine 30 years of progress under the Endangered Species Act.

The bill is available at:

Environmental Defense opposes HR 3824 for three primary reasons:  (1) it will make the recovery of endangered species less likely, rather than more likely; (2) it will weaken, rather than strengthen, the quality of scientific decision-making under the Endangered Species Act (ESA); and (3) it will drain tax dollars away from already short-changed conservation efforts.

In short, this bill will tie endangered species recovery in an endless supply of bureaucratic red tape and starve it of the resources it needs to succeed.  Congressman Pombo has criticized the ESA for being a bureaucratic, oppressive and ineffective law.  His bill would make those claims true.

HR 3824 reduces the prospects for recovering species.
Representative Pombo has long criticized the Endangered Species Act because few species have recovered and been taken off the endangered list (though many others are clearly making progress toward that goal).  Ironically, the Pombo bill makes the recovery of species less likely rather than more.  This is virtually guaranteed by three provisions of the bill. 

The first allows environmentally harmful actions to proceed if the Fish and Wildlife Service and National Marine Fisheries Service cannot evaluate them within a 90 day review period.  Already, the cash-strapped Services are unable to meet many of the deadlines imposed on them.  The new review deadline will exacerbate this problem for the Services, with the altogether new consequence that if the Services cannot review a proposed action within the deadline, the action can proceed – even if the result would make recovery unattainable. 

The second provision undercutting prospects for recovery includes changes to the provision of the law requiring regulations for “threatened” species.  Current law requires regulations that meet a highly protective standard (“necessary and advisable for the conservation” of the species).  The Pombo bill eliminates any requirement for regulations protecting threatened species at all.  If regulations are nevertheless promulgated, they no longer have to meet the existing protective standard. 

The third provision putting new obstacles in the path to recovery are changes that make it harder for federal agencies to cooperate in the implementation of recovery plans.  Currently, federal agencies often take on important tasks to implement recovery plans.  Under the Pombo bill, they would be prevented from doing so unless they first enter into a draft agreement outlining what they intend to do, publish that draft agreement for public comment, and then publish both a final agreement and responses to all public comments received. 

None of these bureaucratic obstacles to the voluntary implementation of recovery plans by federal agencies currently exists.  All will add red tape to interagency cooperation, making implementation more costly and ultimately less likely. .

HR 3824 will weaken the scientific foundation for decision-making.
The Pombo bill purports to strengthen the scientific basis for decision-making under the ESA, but its practical impact will be the opposite.  The Pombo bill does nothing to increase the capacity of the Services to generate or evaluate scientific information:  it offers no new resources and no new relief from already difficult-to-meet deadlines. Instead, the Pombo bill will saddle the agencies with a host of new procedural requirements that must be met within those same decision deadlines. 

HR 3824 will drain taxpayer dollars away from effective conservation efforts.
Although the federal endangered species program has never had enough resources to accomplish its aims, the Pombo bill will divert scarce resources away from effective conservation.  Particularly egregious is a new requirement that the federal government pay a businesses or other private interests whenever it identifies a proposed activity that would result in the taking of an endangered species.   The business or private interest does not need to have either the actual capacity to carry out the proposed activity, or the necessary approvals to do so (such as state or local permits).The claimant only needs to say he or she proposes to undertake the activity.  This provision will not only waste taxpayer dollars but will also dramatically undercut the utility of habitat conservation plans.  At present, those plans allow projects to go forward that result in the taking of endangered species, subject to mitigation requirements that can often be creatively designed to be more useful to conservation than simply foregoing the project.  The Pombo bill pulls the rug from under this sensible approach, replacing creative mitigation opportunities with a requirement that the government compensate the project proponent for foregoing the project.

Congressman Pombo’s effort to overhaul the ESA is based on faulty assumptions
A peer-reviewed analysis by Environmental Defense concluded that more than 50% of U.S. species listed as endangered or threatened under the Endangered Species Act before 2000, and almost two-thirds of species listed for 13 years or more, have stabilized or are improving.  Further, species whose recovery efforts received significant funding are more likely to be improving.

The article can be downloaded here in PDF format []

The study combined 14 years of U.S. Fish & Wildlife Service (USFWS) and National Oceanographic and Atmospheric Administration (NOAA) data on species’ status to get a single measure of each species’ recovery progress.  This approach also allowed an examination of which variables might explain differences in recovery status.  A key variable was government funding per species. 

This study followed two other Environmental Defense analyses that directly counter Congressman Pombo’s and other ESA critics’ faulty assumptions about the Act’s effectiveness.  Click here to download PDF reports [].

For further information, contact: 
Michael J. Bean
Chairman, Wildlife Program
Environmental Defense
202-387-3500 ext. 3312