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Tit for Tat The Endangered Species Act is a Republican Plot. By Susan Zakin How bad is Bush on the environment? Let's put it this way. When Don Barry was solicitor for the U.S. Department of Interior, environmentalists criticized him for being too willing to cut deals with developers. Barry, who had even managed to hang in there during the James Watt era, recently bailed to join The Wilderness Society, a Washington, D.C.-based conservation group. Hey, maybe it was just a personal decision. The upside is that Barry is easier to get on the phone now. I called him to talk about the Endangered Species Act. A lot of the country's environmental laws have a certain mythology attached to them. Usually, it's this: "Nixon signed it, but he didn't know what he was signing." In other words, we didn't really mean it, guys, so let's just ignore the law when it doesn't suit our purpose. Did people know what they were doing back then? "Absolutely," said Barry. "What you had at that time were highly progressive East Coast Republicans infecting the Nixon administration." The people who pushed through the 1973 Endangered Species Act were Nixon administration stalwarts like Russell Train, E.U. Curtis "Buff" Bohlen and Nathaniel Reed.
The Nixon men were responding to a concern about extinction that initially surfaced in 1956, when U.S. Fish and Wildlife Service biologists alarmed about the survival of the whooping crane set up a breeding facility in Colorado. This was the first federal project to deal with endangered species, according to Noah's Choice by Charles Mann and Mark Plummer. In 1966, the first version of the Endangered Species Act "sailed through Congress with almost no objection," write Mann and Plummer. That's because the law was essentially toothless. It required federal agencies to save species only "insofar as is practicable." Like many environmental laws, the ESA was designed to be reauthorized every few years. So in 1973, the Ivy League Republicans got another chance. With the help of key government scientists, they rewrote the law to include habitat protection. Still another provision made it illegal to "take" a species, defining this as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, or collecting. Even unsuccessful attempts to do these things were considered illegal. Most importantly, they expunged the word "practicable." This change would have far-reaching--and controversial--implications. Nixon signed the revised Endangered Species Act on December 28, 1973. While Nixon may have known what he was signing, nobody realized the magnitude of the task that would eventually face the U.S. Fish and Wildlife Service. One law--and a relatively weak federal agency--were charged with meeting what has become, arguably, the world's most difficult and far-reaching conservation challenge. One could almost say that this single law has the nearly impossible task of changing the course of how humans have lived since they began exploring the globe. University of Arizona professor Paul Martin is the author of the Pleistocene Overkill Theory, which postulates that human arrival on previously uninhabited continents or islands results in mass extinctions. Virtually everywhere humans have migrated, from North America to New Zealand, there has been a rapid, large-scale extinction. In places where humans evolved in tandem with wildlife, extinctions don't seem as prevalent. If Martin's theory is true, then the Endangered Species Act was our first attempt to change this deeply ingrained pattern. This was a lot more than a train wreck, the phrase Bruce Babbitt would use to describe endangered species conflicts when he became Secretary of Interior. It was more like a war of the worlds. The first salvo was fired in 1978, when the U.S. Supreme Court stopped construction of the $78 million Tellico Dam in West Virginia to protect a three-inch-long fish called a snail darter. Even the creation of the so-called "God Squad," a panel of experts with the power to exempt projects from the law, couldn't get the dam back on track. Two years later, a Tennessee congressman slipped in an amendment to an appropriations bill that did the trick. It authorized the Tennessee Valley Authority to finish the dam regardless of any other law. This Push Me Pull You à la Dr. Doolittle pretty much set the tone for the Endangered Species Act. In 1982, Congress rewrote the ESA, making it clear that economics could not be taken into account when deciding to list a species. "They took Jim Watt (Reagan's controversial Sagebrush Rebel Interior Secretary) to the woodshed and spanked him," said Barry. The same year, two southern California real estate lawyers named Rob Thornton and Lindell Marsh went to Washington. It wasn't exactly Jimmy Stewart time. They were trying to find a way for their client, a developer, to build on a mountain south of San Francisco where two endangered butterfly species lived. They wrote an amendment to section 10 of the ESA that allowed a "take" of an endangered species in exchange for protection and management in other parts of the species' habitat. This was included in the law's 1982 reauthorization. Habitat conservation plans (HCPs) or in the case of Tucson, multi-species conservation plans, (MSCPs,) are agreements that set out the terms of these tradeoffs. Before the Clinton administration, this provision was used only 14 times. But in the 1990s, habitat conservation plans became the tool of choice for enforcing the Endangered Species Act. Do they work? Watch this space next week.
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