Legislation and litigation take aim at Endangered Species Act

Nevada’s Sen. Dean Heller and Rep. Mark Amodei have joined with Sen. Rand Paul of Kentucky to introduce a bill that would take the power to regulate intrastate endangered and threatened species away from federal agencies and give it to state governors. It is called, appropriately enough, the Endangered Species Management Self-Determination Act. 

A Mono Basin sage grouse. (National Park Service photo)

The bill points out that since passage of the Endangered Species Act in 1973, less than 1 percent of the total number of species in the United States have been recovered and removed from the ESA list, and those were largely due to data errors or other factors. Additionally, there has been no study of the costs or benefits of ESA and no accounting of how much state and federal governments and the private sector have spent to comply with the law.

“(T)he ESA effectively penalizes landowners for owning endangered species habitat by forcing them to bear the cost of conservation,” the bill says, without mentioning that it can lead many landowners to shoot, shovel and shut up. It goes on to point out that ESA “has become a tool for environmentalists to undermine, slow down, or halt construction of infra structure projects, hampering economic growth and employment …”

The bill would basically restore a modicum of plenary power to the states, which, under the 10th Amendment, is where it belonged in the first place, since there is no enumerated power allowing Congress to regulate species.

In a statement announcing the bill, Amodei said:

“Giving governors greater flexibility would go a long way mitigating the one-size-fits-all impact of the ESA, which is threatening to shutdown vast swatches of the American West, including Nevada. Governor Brian Sandoval has met the challenge posed by the looming sage grouse listing and that kind of leadership deserves respect from federal land managers.”

Heller commented:

“We have a responsibility to be good stewards of wildlife and the habitat that they rely on.  In Nevada, we have been working hard to protect both the sage grouse and our economy, which is why I am working hard with the Governor, the delegation, and Nevadans to prevent a listing for the bird. The Endangered Species Act already has an abysmal success rate, so it is time to give the states to the opportunity to step in where the ESA has largely failed.”

Paul said:

“By removing the red tape, state governments will be better equipped to manage, regulate, develop and implement recovery plans for their critical habitats. This bill will better protect endangered species by allowing a more tailored response as implemented by the states.”

While the bill is a good move short of outright repeal, perhaps the best solution to the problems of the ESA is a declaration by the courts that the law is unconstitutional in the first place.

Utah Prairie dogs. (National Park Service photo)

The Pacific Legal Foundation is challenging the ESA on behalf of the residents of southwestern Utah suffering from an infestation of Utah prairie dogs , which are listed as threatened.

The PLF notes that the supporters of ESA argue Congress has such power under the Commerce Clause, which is ludicrous on its face. “In Cedar City, Utah, residents are suffering the loss of their constitutional rights, their private property, and — perhaps most distressingly — the disruption of their loved ones’ final resting place,” PLF’s Jonathan Wood writes. “The city is overrun with Utah prairie dogs, a species that is subject to the federal take prohibition despite existing only in Utah and having nothing to do with commerce.”

In Nevada the sage grouse are probably going to be listed as threatened or endangered, which will affect mining, oil and gas exploration, grazing, power lines and pipelines and recreation.

Two fronts is better than none.