Correction: ESA Not THAT Bad...

Earlier today, I posted the letter to the editor of the LATimes that appears below and said I wouldn't be the least bit surprised if this guy is spot-on on his characterization of the genesis of the Endangered Species Act. It turns out he's not, so I'm correcting my earlier post. (Let's see MSM correct themselves so quickly!)

First the letter, as it appeared in todays LATimes:

Re "A Property Rights 'Trophy," editorial, Jan. 9: The Times is wrong to claim that the Endangered Species Act is not an expensive luxury. It is a brutally expensive luxury for journalists needing subject matter for feel-good editorials when the news gets slow.

Let's not forget that the act was written by staffers and a few friends, and read by very few. Alston Chase's seminal history relates that eight people, including two animal rights activists and the future chief of law enforcement for the U.S. Fish and Wildlife Service, essentially hashed out the bill. The bill was so obscure and carelessly considered that it passed Congress by a gigantic margin, but was forwarded to President Nixon for his signature only after one of the authors found it buried in a file cabinet and whisked it to the White House in the nick of time.

The rest, they say, is history; a sick, tawdry history of junk science, lost jobs, community upheaval, wildfires, clogged courts, radical eco-fundamentalism, lousy land management, rampant waste, spineless politicians and, best of all, unsaved species.

Dave Skinner
Whitefish, Mont.

His "the rest is history" summary is pretty harsh but not altogether off base, especially when related to the misrepresentations in favor of ESA the LATimes made in its editorial. But his assessment of how the Act became law is off, according to Rob Thornton, one of the premier ESA attorneys in the country. Rob wasn't involved in writing the law, but did have a major role in the only major rewriting of the law, in 1978.

Here's Rob's email to me:

Laer:

As the saying goes, "never let the facts get in the way of a good story."

I wasn't involved in 73 when the ESA first passed, but I have read all of the Committee Reports and the debate in the House and Senate. The ESA was like a number of environmental bills enacted in the late 60s and early 70s (NEPA, Clean Water Act, Clean Air Act, RCRA etc. etc.). The politics of the day was such that both parties were voting for anything that had "environment" in the name. It is just silly to suggest that the ESA was lost in a file and found its way to the White House. In fact, the Nixon Administration made the ESA a cornerstone of its environmental agenda, along with NEPA, the Clean Air Act and the Clean Water Act. You should read the Nixon Administration's report to Congress on why a stronger ESA was needed.

It is a truism that with any complex piece of legislation, there are only a handful of people who understand the details. A somewhat larger group understand the potential impacts and the policy nuances. The rest have only a vague notion of what the bill is about. Most Members of Congress only know the position of various interest groups on the bill unless they are on the Committee that reported the bill. This may sound terrible, but the volume of legislative material is overwhelming. This is a phenomenon that is not limited to the ESA. I wonder how many members of Congress could explain the drug benefit bill that passed last Congress? Look what happened in Sacramento on utility deregulation.

During the debate on the first bill I staffed on the House Floor, a Member came up to me to ask me about the bill. I started to give a brief but accurate answer. I was shoved aside by a senior staff guy who said "highway lobby supports, environmentalists oppose." The Member said "thanks, that's just what I needed to know."

The 73 legislative history actually reveals a robust debate about various provisions of the ESA including section 7. There were amendments offered to take the teeth out of section 7 but these amendments failed. There were unsuccessful attempts to retain state supremacy over wildlife. The state fish and game agencies opposed the ESA because it preempts state law that is less restrictive. They fought the bill, but didn't have sufficient clout to buck the environmental lobby and the Nixon Administration.

The biggest flaw in the "secret conspiracy" theory of the origin of the ESA is that it doesn't explain how the ESA has survived since it came out of the closet with the snail darter decision in 1977. I lived through the 1978 and 1979 amendments. I can tell you that there was an extensive debate about whether there should be an ESA at all and whether economics should be considered in ESA decisions. My Committee held weeks of hearings that went all day long. This was front page news in many papers. There were very few votes to dramatically amend the ESA.

I was the principle force on the House Committee staff behind inserting economics into ESA decisions, and it is nothing short of a miracle that it stayed in the bill in 78. The business lobby was incredibly ineffective and were outmaneuvered by the enviros at every turn -- even though the press repeatedly made the point that it was insane to stop a dam because of a three inch fish.

The reality then, as today, was that most Congressional Districts aren't impacted by the ESA to any material extent. Thus, it is easy for most Members to support the ESA. The Clean Air Act and Clean Water Act have much bigger and broader economic impacts. Theses statutes have become more, not less stringent over the years. Look what happened within the Bush Administration on the SWANCC regulations! And 404 has a impact on more Congressional Districts in more states than does the ESA.

Rob

So, there you have it. Probably in more detail than you wanted, but the blogosphere stands corrected.