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Politics of Endangered Species

  • James Huffman
  • Buried in the continuing resolution funding the federal government for the remainder of 2011 is a rider that delists the gray wolf as an endangered species in Montana and Idaho. The rider had bipartisan sponsorship from Sen. Jon Tester, Montana Democrat, and Rep. Michael K. Simpson, Idaho Republican, but the public reaction is anything but bipartisan.

    Among environmentalists – and particularly among endangered species advocates – there is outrage that Congress had the temerity to poke this small hole in the Endangered Species Act. How dare Congress inject politics into what is meant to be a purely scientific determination? And even worse, Congress overrode the order of a federal judge and then had the gall to insulate its action from further judicial review. According to an editorial in the New York Times on Friday, all of this constitutes inappropriate “meddling” by Congress.

    Now that’s an interesting objection. By effectively amending how the law applies in particular circumstances and overriding the decision of a federal judge, Congress is “meddling” with the Endangered Species Act? Doesn’t Congress make the laws, the executive implement and enforce the laws and the judiciary interpret the laws? By what theory does this constitutional separation of powers preclude Congress from changing its mind or from overriding the interpretations of bureaucrats and judges?

    The fear among environmentalists is that other members of Congress will now seek special exemptions for their neighborhood endangered species. Careful inspection of future appropriations bills might reveal delistings of the Barton Springs salamander in Texas, the red-cockaded woodpecker in the Southeast and even the northern spotted owl in the Northwest. In the case of the spotted owl, such congressional overstepping would derail more than two decades of ongoing planning, scientific studies and judicial rulings.

    Of course, there is no doubt that Congress has the authority to do what it did. The wolf delisting in Montana and Idaho will withstand environmentalist outrage and editorial hand-wringing. One might object, as I do, to the way Congress did it (with a rider on a budget bill), but there is no case to be made that Congress exceeded its constitutional powers.

    Nor is there a case to be made that decisions like this should be – or have been – delegated to science. From the moment Congress undertook to protect endangered species, the matter became political. Certainly, Congress intended that decisions under the Endangered Species Act be informed by science. No doubt, members of Congress are grateful that they can sometimes insulate themselves from controversial species protection decisions by pleading that the scientists, not the politicians, are to blame.

    But at the end of the day, it is all politics. Congress cannot escape from the political consequences of their votes by pretending that particularly contentious actions are now in the hands of all-powerful agencies and all-knowing scientists.

    As the New York Times reported the day before editorializing against congressional “meddling,” the Fish and Wildlife Service faces an enormous backlog of listing petitions. The newspaper reports that the Fish and Wildlife Service stated in its 2012 budget request that its 2011 budget provides funds to process only 4 percent of pending petitions.

    That’s politics, not science. And it’s not just the politics of budgeting for a hungry sea of federal agencies. The listing process itself cannot escape politics. Scientists can make their best estimates of the risk of extinction. But how much of a risk we are prepared to take as a society is a political decision, whether taken by scientists in the Fish and Wildlife Service or by members of Congress.

    Mr. Tester and Mr. Simpson made the political process work for their constituents. Rest assured that other members of Congress are looking to do the same, whatever the science.

    Written By
    • James Huffman
      • Board Member

      James Huffman is dean emeritus of the Lewis & Clark Law School and a PERC board member.

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