Endangered species protection requires reform, not reaction, professor tells panel

It will take systematic reform – and not piecemeal legislation and micro-management by Congress – to make the federal Endangered Species Act more effective, Indiana University law professor Robert L. Fischman told a congressional committee this week.

“The ESA is akin to a crowded hospital emergency room with a long wait,” he said. “The most effective way of reforming the ESA is to provide treatments for species before their status is so dire.”

Robert Fischman

Robert Fischman

Fischman, professor of law and Harry T. Ice Faculty Fellow in the Maurer School of Law, testified Tuesday before the House Committee on Natural Resources, which is considering legislation challenging the Obama administration’s implementation of federal wildlife laws.

Endangered Species Act debates are always divisive, Fischman said after the hearing, and the current tension between Republicans and Democrats made the hearing even more acrimonious. “I tried to highlight a handful of moderate actions that I thought both parties could agree on,” he said.

Fischman’s suggestions included:

The Endangered Species Act should be a last resort, not the principal tool for conservation. The most effective step Congress could take to improve the law, he said, is to enact comprehensive biodiversity protection legislation that makes it less likely species will become endangered. Early planning for habitat protection and more wildlife research could allow for more flexibility in taking measures to prevent species from extinction.

The act needs more funding to be effective. The law has never received enough funding to fulfill its objectives, Fischman said, and recent budgets have made the problem worse. Federal wildlife agencies are tied up with lawsuits because they don’t have the staff and resources to effectively do their jobs. States have made great strides and should be supported in their efforts, he said – citing a proposal by IU professor Vicky Meretsky and other experts for a national, state-based conservation network.

Citizen lawsuits play an important role in holding federal agencies accountable. Fischman said it’s understandable that lawmakers are frustrated with lawsuits that seek to force the government to meet deadlines for species protection. But banning such lawsuits, he said, wouldn’t be a good idea. He pointed out that developers and business interests, not just environmentalists, have turned to the courts to ensure that federal agencies comply with what Congress intended.

“Conservation success,” Fischman told the committee, “will require comprehensive legislative reform, more appropriations for the agencies charged with implementing the ESA, and vigilant citizens policing compliance with the act.”

The Natural Resources Committee is considering several legislative proposals, including a requirement that agencies complete economic analyses before designating critical habitat and a reversal of the Fish & Wildlife Service’s listing of the lesser prairie-chicken as a threatened species.

The full text of Fischman’s testimony is available online. An archived webcast of the committee testimony can be downloaded from the House website.


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