By: Michael Campbell
On March 13th, the 2014 J.B. and Maurice C. Shapiro Environmental Law Symposium hosted an esteemed panel of experts covering topics related to wildlife planning and the Endangered Species Act. The panel was moderated by Lawrence Liebesman, a partner at Holland and Knight. Mr. Dale Goble, Margaret Wilson Schimke Distinguished Professor of Law at the University of Idaho College of Law, kicked things off with a synopsis of his research regarding environmental land use planning on military installations. Professor Goble noted that military installations constitute only about three-percent of federal lands, but are home to a disproportionately high percentage of endangered species. Professor Goble outlined the details of the little-known Sikes Act (16 U.S.C. 670a-670o, 74 Stat. 1052), a federal statute meant to regulate the management of ecological resources on military bases. He used San Clemente Island as a case study to illustrate the Sikes Act’s day-to-day operation on a federal military installation. San Clemente is a small island off the coast of southern California that the U.S. Navy uses for ordinance testing. He praised the Department of Defense (DoD) for its commitment to the protection of wildlife on the island, specifically its detailed land use planning that focuses on the preservation of the island’s nine threatened or endangered species. Professor Goble, however, also noted how San Clemente is an example of the Sikes Act’s outdated planning model, with a lack of procedural devices for public comment and time-consuming procedures for obtaining public information. In general, Professor Goble praised the DoD for its commitment to the protection of endangered species on military installations, while questioning the lack of transparency and public participation.
The next presenter was Mr. Mark Salvo. Mr. Salvo is the Director of Federal Lands Conservation for Defenders of Wildlife. His presentation focused on the Bureau of Land Management’s National Greater Sage-Grouse Planning Strategy. Once a species noted for its abundance, the sage-grouse is a bird whose habitat in the American West has been devastated by human activities. The greatest anthropogenic adverse impacts on the species have come from extensive oil and gas activities and widespread livestock grazing. Livestock grazing in the sage-grouse’s native habitat has provided a perfect environment for the growth and spread of cheatgrass, a destructive non-native species that forces out native plants and creates an environment unsuited to the sage-grouse. Mr. Salvo described the Bureau of Land Management’s well-intentioned, but deeply flawed attempts to protect the sage-grouse while avoiding a formal listing as an endangered species. He notes that the BLM’s strategy has permitted too many exceptions for local uses such as oil and gas, and an inconsistent, balkanized process that provides wildly differing protections for the species in different states. With fifty-percent of historical sagebrush habitat having disappeared since European settlement and sage-grouse numbers in a continuing steady decline, Mr. Salvo emphasized that more effective strategies are needed. He recommends a landscape-level BLM planning process that focuses on consistent habitats that cross state lines. Mr. Salvo also recommends greater consistency, centralization and species protection in the national planning process, limiting balkanization, and reducing exceptions for livestock grazing and energy firms while adding new protections covering sage-grouse winter habitats.
Amelia Jenkins, the Deputy Chief of Staff, Democratic Staff, House Committee on Natural Resources, wrapped up the formal panel presentations. She focused on gap analysis, most specifically the broad gap between what Congress talks about regarding the Endangered Species Act and what actually takes place. She noted that congressional debates on endangered species tend to be heated and intensely partisan. There have been certain members of Congress who have consistently pushed for new limits on the listing of endangered species and standing limitations to make it more difficult for parties to bring endangered species suits in federal courts. She noted that many Democrats in Congress have continued to stay true to traditional goals connected with the Endangered Species Act, including strengthening listing systems, meaningful recovery plans and incentives for land owners to limit ecologically harmful land uses. She also noted a major gap between the ambitious plans of federal agencies related to endangered species and their actual, practical ability to carry those plans to fruition. In addition, Ms. Jenkins highlighted archaic aspects of the permitting process for energy development and environmental protection on federal lands. As an example, Ms. Jenkins noted that solar and wind projects on federal lands do not go through a modern permitting process akin to those used for other energy sources, but instead are subjected to an outdated leasing process that is in need of reform. She did note that a Republican Congressman has sponsored a bill to change this, a glimmer of hope for the sort of bipartisan cooperation she says is badly needed in land use planning.
Mr. Liebesman concluded the panel discussion by opening the floor to questions. This question and answer session led to some very spirited exchanges, including core discussions regarding the overall effectiveness of the Endangered Species Act. The responses of the panelists varied widely on this issue. Ms. Jenkins noted that there may be too much emphasis on listing and delisting in the ESA, which distracts decision-makers from broader issues like climate change and lack of practical agency power to implement changes on the ground. Mr. Goble suggested that a major shift towards regulating groupings of ecosystems may be preferable to the current model. Mr. Salvo, while acknowledging the benefits of an ecosystem-based approach, generally defended the Endangered Species Act as currently constituted. He noted that the ESA, despite its flaws, has a ninety-nine percent success rate in preventing the extinction of listed species. He also suggested that we may have to adjust our temporal expectations for the recovery of endangered species. Mr. Salvo noted that most species recovery plans seem to be working, but at a very slow pace that is best measured over many decades. He seemed to suggest that we may simply need to give the ESA more time to work.