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Endangered Species Act Amendments: Pamela Baldwin
Summary Both the House and Senate bills focus on the process for listing declining species, the developing of recovery plans, and new approaches to conserving habitat. Both bills would expand the role of scientific peer review. Some of the principal features of S.1180 are that it would:
Some of the principal provisions of H.R. 2351 are that it would:
Introduction
and Background De-listing, Down-listing, and Up-listing Incentives for Private Landowners Appendix I. Major Provisions of the Current Law: Domestic Appendix II. Major Provisions of the Current Law: International
List of Tables Table 1. Authorization Levels under S.1180, FY1999-FY2003 Table 2. Authorization Levels under H.R. 2351, FY 1999-FY 2002
Because of wide-spread interest in possible amendments to the Endangered Species Act of 1973 (ESA),1 CRS has received numerous requests for a critical analysis of S. 1180 and HR. 2351. HR. 2351 was introduced on July 31,1997, and S. 1180 on September 16,1997. This report analyzes those bills. Each bill is discussed under various topic headings; the Senate bill will be described first, since it has been reported. Each section of the report describes briefly the current provisions of the ESA as it relates to that section. Both the House and Senate bills focus on the process for listing declining species, developing recovery plans, and on new approaches to the problem of conserving habitat. The Senate bill would provide financial assistance to landowners and a separate bill (S. 1181) would provide tax incentives. The House bill does not provide direct financial assistance to landowners, but does contain tax incentives. The report will not address the tax provisions of H.R. 2351 at length. Neither bill would provide additional takings compensation for landowners above that required under the Constitution, and neither bill would provide special provisions related to the National Environmental Policy Act. The ESA has been one of the most controversial of all environmental laws, a fact that undoubtedly reflects the strict substantive provisions of this law. As a result of the ESA's standards, the Act often plays a role in disputes in which all sides agree that a given species is not the center of the debate. The 1973 ESA began as a comprehensive attempt to protect all species and has evolved further to consider habitat protection as an integral part of that effort. It is administered primarily by the Secretary of the Interior through the Fish and Wildlife Service (FWS), but also by the Secretary of Commerce through the National Marine Fisheries Service (NMFS) for certain marine species. Under the ESA, certain species of plants and animals (both vertebrate and invertebrate) are listed as either "endangered" or "threatened" according to assessments of the risk of their extinction. Once a species is listed, powerful legal tools are available to aid the recovery of the species and the protection of its habitat. As of January 31, 1998, 1,696 species of animals and plants (of which 1,126 occur in the United States and its territories) had been listed as either endangered or threatened. Of the U.S. listings, 744 were covered in 478 recovery plans. The authorization for funding under the ESA expired on October 1, 1992, but Congress has appropriated funds in each succeeding fiscal year. (See the FWS website at http://www.fws.gov/~r9endspp/endspp.html for further details.Also see Appendices I and II for an overview of the major domestic and international provisions of the current Act.)
Under the definition of "species" in current law, any species or subspecies of plant or animal can be considered for addition to the lists of threatened or endangered species. In addition, only with respect to vertebrates (fish, amphibians, reptiles, birds, and mammals), distinct population segments may also be listed (e.g. populations of salmon that inhabit particular rivers). There were 207 candidate species and 99 proposed species awaiting listing decisions as of September 19, 1997 2 To the current factors (such as habitat loss, disease, predation, overuse, etc.) which may cause a species to be listed, S. 1180 (§2(c), p.86) would add introduced species and competition. While these risk factors are almost certainly covered under the broad provisions of current law in §4(a)(l), their inclusion would emphasize them and could give agencies more options to respond to these threats. Introduced species may represent a serious economic threat to various sectors of the U.S. economy, which could use this addition as another legal tool to address the problem. Introduced species are particularly serious problems in certain areas, such as Hawaii, Guam, and Florida, and in agricultural grassland habitats. H.R. 2351 has no similar provision. Backlog and candidate species. S. 1180 has no provision dealing specifically with the listing backlog, though its more extensive measures required for new listings would require increased appropriations if the current backlog is not to increase. S.1180 (§9(a), p.170, inserting a new §3(2)) would define the term "candidate species" (not currently defined in ESA) to match current policy. Contents of petitions. Under current law, the Secretary must merely determine that petitions to add, subtract, or modify the listing of a species are "substantive," after which the agency (FWS or NMFS) initiates its own full-scale review of the status of the species, requesting comments from all who wish to submit them. S.1180 (§2(c)(4), pp.87-94, amending ESA's §4(b)(3)) would require documentation that the subject of the petition is a species, as defined in ESA; a description of specified available data on its range; an "appraisal" of available data on its status, trends, and threats; and an indication of what part of the information in the petition has been peer-reviewed or field-tested. Data standards. S. 1180 would retain the provision of current law that only the "best scientific and commercial data available" may be considered in a listing determination, but would specify (in §2(a), p.86, amending §3 to add a subsection (1,)) that the Secretary must "give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed." The committee report indicates that this language is meant to direct the Secretary when faced with "comparable" data to give greater weight to that which has been field tested or peer reviewed.3 Debates have occurred in the past over the use of scientific models in implementing ESA, particularly for making listing determinations. However, ESA requires federal agencies, especially FWS and NMFS, to make predictions about future events (e.g, recovery, extinction, jeopardy, and survival). Presumably, since prediction without models could lapse into mere guesswork, this new standard may be intended to apply to the quality of data (and necessarily to the associated models), without actually precluding the use of models themselves. The intention of the proposed language, however, is not clear. State participation. Under current law, the Secretary must take into account any efforts being made by states to protect a species. The Secretary must also give notice to any affected states, and invite the comments of the relevant state agency and local jurisdictions, not less than 90 days before the effective date of the proposed regulation. S.1180 (§102(c)(4), p.89) would drop the requirement of notification of state governments regarding petitions deemed to meet the new criteria for petitions in the bill. (Current law requires only Federal Register notice at this stage of the listing process.) The bill would require the Secretary to consider state assessments submitted during the comment period on the proposed regulation.
Section 2(5) of the bill states as a finding that federal agencies and others should act to protect declining species before they need the full application of the ESA. Section 101 (p. 6) would amend the definition of "species" (§3(16)) to permit the listing of populations of invertebrates and plants, if they represent the last remaining population in the United States of a particular species. Currently, only vertebrates may be listed at the population level. Backlog and candidate species. Under current law, the term "candidate species" is not formally defined, but in practice it means those species on which a petition to list has been received, and for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list, but when issuance of the proposed rule is precluded by work on other species.4 HR. 2351 (§101, p.6) would define the term as new §3(22) to include those that under current practice have been considered as candidate species and those for which a listing proposal may be appropriate based on available information, but for which further information is required to support a proposed rule. Like S. 1180 (which follows current policy), H.R. 2351 would not attach the term specifically to the petition process, leaving open the question of how it might apply to species now being considered for listing by the FWS. It is not clear at what stage specifically a species could be deemed to be "considered" by FWS. If it is the subject of a petition, the issue is clearer, but if troubling data on the species has merely come to the attention of a FWS biologist, would it be a considered species at that point, or would some higher level of attention and information be essential? The bill (§103, p.11) would amend §4(b)(3)(C) of the Act to require a decision on listing within a year of enactment on petitions concerning all species previously determined to warrant listing, and within 4 years on any species judged to warrant listing after the date of enactment. Current law also contains deadlines for listing, but resources have proven inadequate to keep up with the number of proposed species. Without additional funding, it is unclear how further deadlines would help eliminate the backlog across the board, though they could provide a legal spur to action for particular species. Contents of petitions. H.R. 2351 (§104, p.5) would add a new §4(b)(3)(E) to require petitioners to submit certain specified additional information on the species' range, population levels, and threats, and a bibliography of relevant information "to the maximum extent practicable." The latter condition was probably included to address that fact that such things as a species' historic range may not be known. State and tribal participation. Under current law, the Secretary must take into account any efforts being made by states to protect a species. The Secretary must also give notice to any affected states, and invite the comments of the relevant state agency and local jurisdictions not less than 90 days before the effective date of the proposed regulation. H.R. 2351 would not change this procedure. HR. 2351 (§106, p.16, amending §§6(c) and (d)) would include "any Indian tribe" for the purposes of participation in cooperative endangered species agreements. The term is not further defined. Some Indian tribes are federally recognized and others are not. It seems likely that at least recognized tribes are intended to be eligible, since these are more likely to control lands and waters and to have fish or wildlife departments able to manage such a program. It is not clear whether other entities such as Alaska Native Corporations, Hawaiian natives, etc., also are intended to be included.
De-listing, Down-listing, and Up-listing Under current law, the processes of de-listing a species, or changing its status from endangered to threatened ("down-listing"), or vice-versa ("up-listing"), are the same as those for listing a species. Any of these four processes faces the same requirements for information in petitions, and the same deadlines and options for hearings and public comment. In all four cases, FWS or NMFS may initiate the process. In all four cases, there are options for citizens to sue. S.1180 (§2(c)(3) and (4)) would create new criteria for initiation of these processes. Subsection (3) p.87) would explicitly require the Secretary to initiate a de-listing determination if it were determined that the goals of the recovery plan had been met. Subsection (4) of S.1180 would replace current § 4(b)(3).5 It would include a new §4(b)(3)(B) (p. 90) on petitions to up-list, down-list, or de-list a species currently on the ESA list, in contrast to petitions to add new species to the lists. Petitions for these three actions would apparently require the minimum documentation and deadlines specified under current law. However, S. 1180 would clarify the bases on which petitioners might request up-listing, down-listing, and de-listing. Petitions on any of the three could be based on a change in the factors that caused the species to be listed. Petitions to de-list only could be based on new data or re-interpretations of existing data, extinction, or attainment of the goals of the recovery plan. H.R. 2351 would make no changes that apply exclusively to delisting, down-listing or up-listing.
Property rights advocates, business interests, environmentalists, scientific organizations, and federal agencies have all decried, at various times, the inadequacy of the scientific basis of ESA decision-making. This unanimity is misleading, however, since the reasoning of the groups may be diametrically opposed. To some extent, this debate is predictable, given the lack of complete information on almost any wild species, and particularly given the even higher likelihood of poor data on rare species. If a species' distribution is poorly known (e.g., Alabama sturgeon), should it be listed? If its taxonomic status (e.g. the northern goshawks of the Rocky Mountain area) is a matter of dispute, should it be protected as a "distinct population segment"? If a species is wide-ranging and begins to reappear in an area it once occupied (e.g., wolves in Yellowstone), should these animals be regarded as a "resident population"? Should a formerly widely-distributed species (e.g., some salmon species) warrant protection in parts of its range, when it is still fairly abundant in other parts of its range? Should a species that is possibly "contaminated" with genes from other populations (e.g, Florida panthers) warrant protection? More broadly, how should the federal government regulate in the (seemingly inevitable) absence of complete information, or navigate through a sea of gray areas? People who face job loss or communities fearing economic instability would probably respond that the federal government should be quite certain that the species is present, is validly distinct, is protected over no wider an area than necessary, and is de-listed as soon as possible. Representatives of many scientific or environmental organizations would probably argue that the federal government should provide a margin of safety to recognize both the irreversibility of extinction and the frequent lack of complete information, should begin to protect species when their populations are still sufficient to avoid draconian measures (e.g, whooping cranes, Pacific salmon, Florida panthers, etc.), and should seek to restore ecological balances wherever possible. At this philosophical level, the "scientific" question becomes more one of law and policy than of science: how should regulations be administered and on which side should the burden of proof lie for protection? The information on which a decision is based may be quite acceptable from a purely scientific standpoint, but the resulting decision may still result in various parties criticizing the decision as "bad science" -- for precisely opposite reasons. In the current ESA, science is given absolute primacy in only one area: species may be listed " ... solely on the basis of the best scientific and commercial data available ...." However, in the remainder of the ESA, factors besides science may be considered, subject to certain restrictions such as avoiding jeopardy, a take of a member of a species, or adverse modification of critical habitat. A recovery plan, for example, must credibly lead to recovery of the species. But if various recovery options could all lead to that result, then the strategy with least economic impact may be chosen.
Science in listing process. Under current law, when a petition is submitted, the Secretary must merely determine that it is "substantive." Under S.l1 80 (§2(c)(4)(ii), p.88), considerably more data (see section on Listing for specifics) would be required of those petitioning to list, de-list, or downlist, or up-list a species. For those species already on the list, the required data may be fairly readily available. For petitions to list a species for the first time, the gathering of this information may prove a formidable obstacle. In the next stage, under current law, the Secretary must review available data. If the Secretary issues a proposed rule, there is opportunity for a hearing and oral and written public comment. S. 1180 (§2(c)(8), p.97, adding a new §4(b)(l 0)) would also require that all listing proposals undergo peer review. Reviewers, to be selected from lists submitted by the National Academy of Science (NAS), would be required to meet several criteria (relating to expertise and conflict of interest) for selection. For most vertebrates, sufficient persons fulfilling the criteria might be readily available. For some obscure groups of organisms (e.g., freshwater clams, freshwater fishes, and many insects), it may prove difficult to find enough people both to write the recovery plan, and to provide peer review for listing. It is not clear how this provision would be accomplished if there are insufficient experts. Also, neither bill addresses compensation of the scientists participating in peer review. Currently, academic scientists reviewing documents for their eligibility for grants or for publication, receive little, if any, compensation. Reviews are generally accomplished by mail, and are normally anonymous. The practical difficulties of grafting such a system onto a contentious area that may require extensive meetings, lost time from primary research and teaching activities, and potentially the polar opposite of academic anonymity are not well addressed in either bill. Request for more data. S. 1180 (§2(c)(8), p.97, adding a new §4(b)(9)) would require a special notice in the Federal Register when a listing proposal is published. The Secretary must describe "additional scientific and commercial data that would assist in the preparation of the recovery plan" and "the steps that the Secretary plans to take for acquiring additional data." The new subsection also says that these requirements do not waive or extend "any deadline for publishing a final rule to implement a determination...." The subsection appears to assume that such data could be obtained. It is unclear how a listing decision would be influencial if the additional data cannot, for whatever reason, be acquired in the allotted time.6 At the time of a listing decision, it may not be known that the information for the recovery plan cannot be obtained. H.R. 2351 has no similar provision. Science in the recovery process. Under current law, recovery team members must merely be "qualified." The actual plan itself has no required specific input from scientists, as opposed to any other group that may be interested in the plan. Under S. 1180 (§3(b), p.106, adding a new §5A(d)), members of the recovery team would be chosen "for their knowledge of the species or for their expertise in the elements of the recovery plan or its implementation." S.1180 (§3(b), p.109, adding a new §5A(e)(1)) also would require that a subset of the recovery team (those "with relevant scientific expertise") must "submit to the Secretary a recommended biological recovery goal to conserve and recover the species."
Science in listing process. Like S. 1180, H.R. 2351 (§104, p.5, amending §4(b)(3)) would require the petitioner to provide a broadly overlapping set of information, more detailed than current law requires, but only "to the maximum extent practicable." The phrase may be helpful in instances when some, but not all, desirable information is available. Science in the recovery process. Under H.R. 2351 (§105, p.6, amending §4(f)) the Secretary would be required, in consultation with the National Academy of Sciences (NAS), to select independent scientists with expertise in the area, to determine the criteria that must be met for de-listing. ENDNOTES 1 Pub.L. No. 93-205, 98 Stat. 884, codified at 16 U.S.C. §§1531-1544. 2 See 62 Fed. Reg. 49398-4911. 3 S. Rep. 105-128 at 13 (1997). 4 The majority of species now listed were not the subjects of petitions, but were listed at the initiative of FWS, perhaps at the informal suggestion of other agencies. Processes for listing are largely the same as those for petitioned species, but the deadlines of the petition process do not apply. 5 This lengthy subsection of the current law covers the timing of responses to petitions to change the list, the options for responding to a listing petition, the reviewability of negative decisions on listing, monitoring of candidate species, responses to petitions to change designated critical habitat, and other matters. 6 Such problems may readily arise if the species is active or present in the United States only part of the year; if the species is not found in this country; if crucial times for the relevant research are hampered by poor weather or damaged equipment; if funding is not available; or if relevant researchers have other obligations; to name a few predictable problems.
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