Ask state officials in the West which federal law irks them the most and chances are it won't be the Clean Air Act, grazing regulations or mining law reforms.
The most troublesome law, say the eight Western governors who met in St. George recently, is the Endangered Species Act, which Congress passed 21 years ago to save diminishing flora and fauna from extinction.Be it grizzly bears in Wyoming, salmon in Idaho, spotted owls in Oregon or desert tortoises in southern Utah, virtually every state has "horror stories" about how federally mandated compliance with the ESA has destroyed local economies, thwarted growth and burdened states with millions of dollars in costs associated with preserving species.
"Everyone agrees we can improve the legislation," said Utah Gov. Mike Leavitt, chairman of the Western Governors Association.
Reforming the Endangered Species Act was one of several environmental and public-lands issues raised by the governors, who are using those issues as flagships in their armada against the federal government, whose power, they say, is out of balance with that of the states.
The states-rights campaign has put environmentalists in the uncomfortable position of defending federal environmental laws.
Saying the "horror stories" are largely exaggerated, environmentalists warn against any weakening of the Endangered Species Act, a sentiment echoed by the current administration of the U.S. Fish and Wildlife Service, which enforces the act.
"This country's economic vitality depends on its overall environmental health," said Mollie Beattie, director of the U.S. Fish and Wildlife Service.
The ESA, she added, is directly responsible for saving several species from extinction: the bald eagle, the American alligator, the gray whale and the peregrine falcon. Other endangered animals, such as the whooping crane, the California condor and red wolf are making slow but steady come-backs.
But Western governors believe the act, which is up for reauthorization in Congress, has gotten out of control. They say the time is ripe for massive changes that would give states more control over preserving species and, says Idaho Gov. Cecil Andrus, provide "relief from federal mandates."
The Western governors have proposed a number of amendments to the ESA. Among them:
- Federal agencies would be required to consult with states before a species is listed as endangered or threatened.
The National Wildlife Federation, a private watchdog of the ESA, agrees that the FWS should be required to give more notification of upcoming listings. Under the current law, states do have the opportunity to comment on whether species should be listed, said federation counsel John Kostyack.
- State and federal officials would be required to cooperate in the development of recovery goals and criteria to be used to remove species from the endangered list.
Kostyack says that's fine, too, as long as the goals and criteria are based on science.
"We would be opposed to delisting a species for any other reason than evidence the species is able to thrive in the wild." In other words, no economic or political criteria, he said.
- No protective measures would be taken until after there's scientific evidence, which has passed peer review, that the species is threatened or endangered.
Under current law, anyone can petition the FWS to have a species listed as threatened or endangered. Environmentalists often use this means as a weapon to thwart development, said Andrus.
If the FWS decides to propose a species for listing, the species enjoys some degree of protection but only on federal lands. Full protective measures - prohibitions on killing the animals or damaging their habitat - are not implemented until the FWS issues a final rule.
The governors said that many times, listings are not based on sound science.
"This is really blowing the issue out of proportion if they are suggesting that there is a controversy over whether the species is in trouble," Kostyack said, noting that in "99.9 percent" of the cases, scientists are in complete agreement that a species is threatened or endangered.
"The governors appear to be politicizing the process," Kostyack said. "This whole notion of peer review may be a ploy to delay the protections of the act."
- The Endangered Species Act would be shifted away from protecting individual species to protecting broad ecosystems in which those species occur. Environmentalists favor the same thing. What makes the governors' proposal unique, however, is that the ecosystem management plans would be developed by the states, not the federal government.
And that worries Kostyack. "I couldn't endorse it until I see what they mean. Most species don't recognize state boundaries, so a plan can only work when you have several states involved. But we advocate having state and local people involved."
A year ago, giving states more control in the Endangered Species Act probably had little chance of passing Congress. But with a new Republican-controlled Congress, there is renewed hope that states will be allowed to play a greater role in the endangered species process.
Some Western governors want the entire ESA repealed. But a repeal is not likely, even with a conservative Congress. The real opportunity is to make amendments to the act that allow states more control, Leavitt says.
Kostyack urges caution, noting that Republicans were not voted into office with a mandate to change environmental laws.
"Public opinion polls continue to show strong support for the Endangered Species Act and for protecting the environment."