The phrase “You can’t fight city hall” expresses the futility of opposing an entrenched bureaucracy. For hard-pressed ranchers, miners, oil and gas drillers and developers, and even solar-energy entrepreneurs, the refrain has instead been, “You can’t fight the Endangered Species Act” (ESA).
Until now. This week, the Obama administration announced that it would not declare the dunes sagebrush lizard an endangered species, as it had seemed likely to do, because voluntary conservation agreements in Texas and New Mexico offer promise that the lizard can be protected without halting economic development in the two states where the lizard is found. “Today’s decision is unprecedented in the history of the ESA,” said Democratic senator Tom Udall (N.M.). It “represents a potential breakthrough in maximizing ecosystem preservation and minimizing conflict.”
Certainly, the ESA has led to nothing but conflict since Richard Nixon signed it into law in 1973. More than 1,200 species have been listed as endangered or threatened, three-quarters of which are found primarily on private land. This has led to severe restrictions on that land, often without compensation for owners. When a federal judge ordered in 2007 that water be redirected towards the habitat of the California delta smelt, an endangered species, the resulting drought in parts of the San Joaquin Valley caused unemployment to rise to 40 percent in certain areas — until two local Democratic congressmen voted for Obamacare in 2010, and the spigots delivering water to ranchers and growers in the valley were suddenly turned back on.
“The vast majority of these species have not improved under implementation of current law,” former California congressman Richard Pombo, who chaired the House Resources Committee until 2007, told the Christian Science Monitor in 2005. “It checks species in, but never checks them out.”
That’s why citizens of Texas and New Mexico were so exercised when, just before Christmas in 2010, the U.S. Fish and Wildlife Service (FWS) announced that the dunes sagebrush lizard faced “immediate and significant threats due to oil and gas activities and herbicide treatments.” It started a clock ticking that, given precedent, would almost inevitably have led to the lizard’s being officially placed on the ESA list.
Ranchers, farmers, and oil and gas producers had been working with the FWS on a conservation agreement that would have avoided the draconian government regulation that’s an inherent part of the ESA. In addition to protecting the lizard, the private groups committed to reclaiming abandoned oil wells and paying additional fees that would go into special funds for habitat restoration. But all that was thrown into an ashcan by the FWS’s surprise announcement. “It couldn’t resist trying to control the local economy, and ultimately that mattered even more than protecting the lizard,” Marita Noon, a New Mexico energy expert and opponent of the FWS’s move, told me.
The three-inch-long dunes sagebrush lizard slithers throughout the oil- and gas-rich Permian Basin, which extends from southeastern New Mexico into West Texas. Adding it to the ESA list would have destroyed thousands of jobs in ranching, farming, and drilling because the ESA would have virtually stopped development in many places. Even potential wind farms and solar installations would have been blocked. Higher prices for gas would have been an inevitable result.
The public uproar over listing the lizard was so intense that New Mexico’s two Democratic senators let the White House know they should rethink the issue. Suddenly, the conservation agreements that had been unacceptable in 2010 started looking better. “We have determined the lizard is no longer in danger of extinction and is not likely to become endangered in the foreseeable future,” FWS director Dan Ashe said this week.
It’s not surprising that some of the Obama administration’s allies are furious. “Today’s decision was based on politics, not science,” said Taylor McKinnon, director of public-lands campaigns for the Center for Biological Diversity, in a statement. “By caving to the oil and gas industry, the Obama administration is doing wrong by this rare lizard, it’s ignoring science, and it’s setting a dangerous precedent for other declining species.”
Actually, absent real reform of the ESA, the Obama administration’s decision shows welcome sensitivity to a balanced approach to species preservation rather than the one-size-fits-all grip the ESA imposes. The little dunes sagebrush lizard may become a catalyst for a new approach that helps wildlife and protects the rights of property owners — all in a cost-effective manner.
— John Fund is NRO’s national-affairs columnist.