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The Endangered Species Act and Lincoln Chafee’s Punt

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When I am not teaching, talking to a microphone or writing, I am an “ESA” lawyer, as in the federal Endangered Species Act. The now famous “hapless toad” case was my case, for example, and I have spent 15 years dealing with this statute that Richard Nixon once told me he signed somewhat absentmindedly because “it seemed like a good idea at the time.”

Anyone who deals with the statute knows it has become a weapon in the hands of no-growth absolutists, most of whom care little about the Delhi sands Flower loving fly, the Stephens Kangaroo rat, or the California gnatcatcher –to name just three of the species with which I have become way too familiar over the last two decades– but all of whom would prefer that humans limit their “footprint” on the planet. The ESA is the biggest club in the no-growth band, and the agencies that administer it are full of activists with GS rankings.

A House Committeee passed an important set of amendments to the Act yesterday which would reduce the incredibly destructive aspects of the ESA while preserving its central role. Hearings are underway in the Senate, but it is hard to see how the Senate will actually get a vote to move some package of changes to a House-Senate Conference.

But perhaps even Lincoln Chafee, facing an uphill re-election bid, will be willing to push for some protections for private property owners. Elections have a wonderful way of concentrating the mind.

But Chafee’s wait-and-see statement yesterday punts to a think tank with a loaded group of participants –the Keystone Center’s exercise in elevating the concerns of self-appointed species advocates over those of landowners who foot the bill for fairy shrimp designations as endangered. The Center’s list of participants in the advisory group is not easily discovered on the web, and the Washington Post would be well advised to do a little reporting on the group before taking Senator Chafee at his word that it is an exercise worth waiting for.

Other useful information is available here at Save Habitat Conservation Plans, which is helping interested voters communicate with Congress on the subject.

But the best action would be to call Senator Chafee’s office and ask for a list of the participants in the Keystone Center’s roundtable, and then ask why farmers, ranchers, builders and landowners have been underrepresented? Chafee’s press release on the matter telegraphs the problem: A group of 15 to 20 participants is structurally flawed from the start –a guarantee of over-weighting of activists at the expense of landowners, and conducted in a setting certain to muffle the incredible injustices that occur regularly under the ESA’s application to small property owners.

The governors of the country have repeatedly assailed ESA for the havoc it creates in their states. Senator Chafee might want to have a hearing and invite, say, Colorado’s Bill Owens to kick it off.

But I doubt very muich that Chafee is interested in real data. He’s looking for cover, and the Keystone charade is likely to provide it.


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