HCPS ARE LEGAL REQUIREMENTS, NOT VOLUNTARY "DEALS"
Before turning to some of these issues, it is important to understand precisely what role an HCP plays in the legal and regulatory structure established by the Endangered Species Act. As a matter of federal law, an HCP is not, as some have suggested, a voluntary agreement reached by the federal government and a non-federal party in which a compromise "deal" is struck that provides protection for endangered and threatened species. Rather, under section 10 of the ESA, the development of an HCP is a necessary quid pro quo for private parties who wish to engage in an activity that would otherwise be flatly unlawful under federal law, i.e., the incidental "taking" of an endangered or threatened species through killing, harassing, harming, or adverse habitat destruction. Simply put, if a private party wishes to engage in the extraordinary and presumptively unlawful action of killing or harming members of a species that is already on the brink of extinction, that party must, under the ESA, prepare a Habitat Conservation Plan which, as the name implies, adequately offsets the permitted "taking" by promoting the "conservation" of the species -- defined by the ESA to mean that which is "necessary to bring any endangered species to the point at which the measures provided pursuant to this chapter are no longer necessary." In brief, under section 10, the federal government is allowed to permit the killing or harming of some members of the species, in exchange for measures that will enhance the protection of the species as a whole.
That Congress initially intended HCPs to actually promote the recovery of endangered and threatened species is made clear by the legislative history accompanying the 1982 amendments to the Act. The requirement that those seeking permits to "incidentally take" imperilled species ("ITPs") must prepare a "conservation" plan was expressly "modeled after a habitat conservation plan" which had been developed for the San Bruno Mountain area of San Mateo County. 1982 Conference Report at 30-31. That plan sought to address the conservation needs of endangered butterflies which "face[d] threats to their existence[] even in the absence of any development," including "encroachment on the species' habitat by brush and exotic species." Id. at 32. In particular, according to Congress, the plan "preserves sufficient habitat to allow for enhancement of the survival of the species," including by "protect[ing] in perpetuity at least 87 percent of the habitat of the listed butterflies." Id. at 32 (emphasis added). Based on that "model," Congress made clear that the federal government could issue ITPs for many years, but only if those permits were accompanied by HCPs which were "likely to enhance the habitat of the listed species or increase the long-term survivability of the species or its ecosystem." Id. at 31 (emphasis added).
Regrettably, in its rush to approve "deals" which are far better for developers than the imperilled species the ESA was designed to protect, the present Administration has perverted Congress's original intent in enacting the HCP requirement. In effect, that provision has been converted from one intended to facilitate the recovery of species into one under which the wholesale "taking" of endangered species is authorized in exchange for woefully inadequate "mitigation" -- not "conservation" -- plans which do little, if anything, to offset the extensive damage to the affected animals and plants.
AN ADMINISTRATION "SUCCESS STORY": THE WOEFULLY
INADEQUATE ALABAMA BEACH MOUSE HCPS
One notable example -- in which several recent high-profile HCPs were declared illegal by a federal judge in Alabama -- is illustrative of the problems which plague many of the recent HCPs/ITPs approved by the Administration. That case involved ITPs issued to developers, which allowed the direct "take," and destruction of habitat, of the Alabama beach mouse, a critically endangered species which plays a vital ecological role in combatting beach erosion, but whose coastal habitat has been "drastically destroyed by 'residential development and commercial development, recreational activity, and tropical storms.'" Sierra Club v. Babbitt, 15 F. Supp. 2d 1274, 1280 (S.D. Ala. 1998). Athough the species had been listed as endangered precisely because of the catastrophic loss of its habitat, the Interior Department decided to issue several ITPs for massive beachfront developments which will destroy large chunks of the scant occupied habitat that remains.
In exchange for this severe damage to a species already on the edge of oblivion, the Service did not even require the developers to implement plans which would actually promote the conservation of the species in any meaningful manner, e.g., by conserving habitat that would otherwise be destroyed and which was vital to the species' survival and recovery. Instead, the HCPs approved by the Service relied on "mitigation" measures which ranged from the truly laughable -- including the placement of signs warning young children that they should stay off sand dunes occupied by endangered mice -- to the patently inadequate -- such as meager cash payments for "offsite mitigation" which, the record showed, would not be sufficient to purchase even a fraction of the amount of habitat obliterated by the projects.
In fact, even the FWS's own biologists concluded that these measures were totally inadequate to compensate for the grievous injury inflicted on the endangered species -- a fact which the Chief Judge of the federal District Court in Alabama stressed in declaring the ITPs/HCPs to be contrary to the ESA:
"Remarkably, the FWS simply ignored the clearly expressed concerns of the experts Congress intended the agency to rely upon in making such discretionary decisions . . . [T]he Court finds that the Administrative Record is devoid of any rational basis upon which the FWS could have reasonably relied in deciding to issue the ITPs for these two projects." 15 F. Supp. 2d at 1282 (emphasis added).
Regrettably, the Alabama Beach Mouse HCPs are typical, not aberrational, examples of the Administration's recent approach to HCPs/ITPs. Indeed, these very plans -- which a federal judge declared to be "devoid of any rational basis" -- have even been trumpeted by Secretary Babbitt as HCP "success stories," including in "The Quiet Revolution," the Interior Department's glossy but thoroughly misleading advertisement for the scientifically bankrupt HCPs which have becomes the Administration's stock in trade. Plainly, with "success stories" like these, species such as the beach mouse -- and its critical role in the coastal ecosystem -- will soon be consigned to the pages of history.
Making matters even more bleak for imperilled species are two sweeping policies which the Administration has adopted -- one of which has been codified in a federal regulation, and one which has not been formally adopted, but which is just as obvious to anyone who observes the federal government's ITP/HCP approval process. The former is the so-called "No Surprises" policy which ensures that awful HCPs like those driving the Alabama Beach Mouse to extinction will remain immutable for decades, and the latter is the Administration's unspoken, yet unmistakably clear, policy of avoiding meaningful public input on ITPs/HCPs, and instead negotiating back room "deals" with ITP applicants. If Congress wishes to seriously grapple with the problems plaguing ITPs/HCPs, it must squarely address both of these seriously misguided policies.
NO SURPRISES
Imagine the Food and Drug Administration announcing that, henceforth, companies which receive licenses to market drugs or medical devices will receive "regulatory assurances" that, even if the drugs or devices are found to suffer from unanticipated dangers -- such as a risk of serious unexpected side effects -- the licenses will still not be modified for as long as a century. Or imagine the Nuclear Regulatory Commission announcing that utilities operating nuclear power plants will, from now on, receive "regulatory assurances" that, even if their plants are found to be suffering from a previously unknown design defect which increases the risk of a nuclear accident by a factor of ten, the license to operate the nuclear plant cannot be changed for decades or longer.
Imagine further that when the FDA's or NRC's policy is greeted by the inevitable public outrage, the agency explains its policy by saying that these "regulatory assurances" are necessary in order to give the drug company or nuclear licensee an "incentive" to comply with the law.
There is no functional difference between these facially absurd scenarios and the No Surprises policy adopted by the Clinton Administration, which guarantees ITP holders that significant changes will never be made in their decades-long permits, even if such modifications are essential to avoid the extinction of the species harmed by the permits. In plain terms, the No Surprises policy provides that, when conditions unexpectedly change to the detriment of an endangered species, the species loses and the developer wins every time. As hundreds of conservation groups and independent conservation biologists have argued, it is difficult indeed to imagine a policy more antithetical to the core purposes of the ESA.
The No Surprises approach represents an extreme departure from the manner in which other environmental laws are implemented and, indeed, from virtually every sphere in which the federal government regulates third party activities that are deemed potentially harmful to societal interests. For example, when the Environmental Protection Agency issues permits for the discharge of emissions into the water and air, or for the storage of hazardous wastes -- which would otherwise be unlawful under the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act -- it does not give dischargers an additional "incentive" to comply with these laws by promising them that their permit conditions will never change, even if the permitted activities turn out to be far more detrimental to the public health and environment than previously believed. To the contrary, although those permits are issued for far shorter periods of time than ITPs (only five years for Clean Water and Clean Air Act permits, and ten years in the case of RCRA permits), the EPA nonetheless retains explicit authority to modify the permits in response to new information.
Yet in the case of species on the brink of extinction -- where law and logic dictate an exceptionally cautious approach -- the Administration has adopted a truly radical regulatory regime, which affords permittees unprecedented guarantees they receive literally nowhere else in federal environmental law -- or any other area of the law for that matter. Yet the Administration has never offered the public even a plausible -- let alone convincing -- rationale for why those who seek permits to kill or otherwise "take" imperilled species should receive far greater "assurances" than those who wish to discharge pollutants, operate nuclear power plants, market prescription drugs, or take any other action which is unlawful without federal approval.
This drastic policy was first announced by the Departments of the Interior and Commerce in 1994, without the benefit of any advance public notice or comment. When a coalition of grassroots conservation groups -- led by the California-based Spirit of the Sage Council -- subsequently filed a lawsuit arguing that it was unlawful for the government to adopt this drastic change in the law without any consideration of the public's views, the government belatedly agreed to expose the policy to public comment, including the scrutiny of independent scientific experts.
When the Interior and Commerce Departments subsequently proposed codifying the policy as a formal rule, the rule was opposed by every national conservation and animal protection organization which commented on it, as well as a host of regional and grassroots environmental groups from every part of the country, religious organizations, Native-American tribes, and ordinary citizens who expressed deep concern that the proposal would, if adopted, subvert the nation's longstanding commitment to endangered species conservation (Attachment A lists the types of commenters who opposed the policy).
The proposal was also severely criticized by hundreds of conservation biologists and other scientists, including those in academic institutions, as well as those performing field research on endangered species. These commenters opposed the proposal on many grounds, including that it would make it impossible to prevent the extinction of species under innumerable circumstances -- i.e., "surprises" -- that occur in the natural world all the time, and hence that there must be some mechanism by which HCPs/ITPs that are approved for many decades can be modified in response to "surprises such as new diseases, droughts, storms, floods, and fire." Statement on Proposed Private Lands Initiatives from the Meeting of Scientists at Stanford University (April 1997) ("Stanford Paper").
Thus, a letter signed by 168 scientists with experience in endangered species conservation -- including 122 with Ph.D's in wildlife conservation, ecology, and related fields -- warned that the proposed rule would "greatly increase the risk of extinction of rare, threatened and endangered species in the wild," and hence that the proposal is "antithetical to the Endangered Species Act." (Attachment B) (emphasis added). These scientists further explained that adoption of the "No Surprises" policy as a final rule would:
"disregard a large body of scientific evidence, along with the professional opinions of many scientists, that surprises are inherent in the distribution and abundance of both common and rare species, as well as in our interpretation of nature generally."
Id. at 1 (emphasis added).
Hundreds of other scientists have described the "No Surprises" approach in similarly ominous terms. For example, as many commenters noted, leading conservation biologists denounced the "No Surprises" approach following a meeting at Stanford University, opining that such a policy:
"runs counter to the natural world, which is full of surprises . . . Surprises will occur in the future; it is only the nature and timing of surprises that are unpredictable. Furthermore, scientific research produces surprises in the form of new information regarding species, habitats, and natural processes . . . Unless conservation plans can be amended, habitats and species certainly will be lost."
Similarly, Dr. Gary Meffe, author of the nation's leading college textbook on conservation biology, and Editor of the international journal Conservation Biology explained in his comments that the "No Surprises" approach "runs counter to everything we know about natural systems and their management," and that the "policy makes no sense from an ecological perspective and cannot help but put species in further jeopardy of extinction." (Attachment C). Along with his comment, Dr. Meffe submitted a letter signed by over 160 leading conservation biologists from throughout the country, who again urged, in no uncertain terms, that the "No Surprises" approach
"does not reflect ecological reality and rejects the best scientific knowledge and judgment of our era. It proposes a world of certainty that does not, has not, and will never exist."
These scientists catalogued the many kinds of unforseen developments which can and do routinely affect endangered species, and explained that "[e]very ecosystem of which we are aware changes over time: in species composition and abundance, in structural complexity, in nutrient dynamics, in genetic composition, in virtually any parameter we choose to measure." Id. at 1 (emphasis added). The scientists concluded that: "the only thing certain about ecological systems is their uncertainty. Because we will always be surprised by ecological systems, the proposed 'No Surprises' amendment flies in the face of scientifically based ecological knowledge, and in fact rejects that knowledge
. . .
'No Surprises' . . . not only ignores all present scientific knowledge of ecological systems[] but denies the ability to manage in an adaptive way that welcomes and incorporates new information and allows and encourages improvement."
One would hope that, when confronted with this vehement opposition by hundreds of independent conservation biologists, the Administration -- which, under the ESA, is supposed to make decisions based on the best available science -- would have reconsidered the wisdom of the No Surprises policy. But that was not the case because, as has become painfully apparent -- and as respected scientists such as Peter Kareiva, Laura Hood, and Stuart Pimm testified to this Subcommittee in July -- the Administration's approach to HCP policy is driven largely by politics, not objective science. Accordingly, the Interior and Commerce Departments codified the No Surprises policy as a formal rule in February 1998, stressing that, once an ITP is issued, "no additional land use restrictions or financial compensation will be required of the permit holder with respect to species covered by the permit, even if unforseen circumstances arise after the permit is issued indicating that additional mitigation is needed for a given species covered by a permit." 63 Fed. Reg. 8859 (emphasis added). Under the rule, such assurances are automatically extended to the permit holder for as long as the permit is valid, which may be for as long as a century.
In exchange for making these unprecedented assurances to permit holders, the final rule does not even require that HCPs actually promote the recovery of species -- which, as noted above, was the original Congressional expectation for all HCPs. In other words, under the Clinton Administration's bizarre regulatory scheme, ITP holders get extraordinary, unprecedented "regulatory assurances" even where their actions confer no net benefits for endangered species but, instead, leave such species at even graver peril than before the permits were issued.
Equally perplexing, the Administration's No Surprises rule does not even afford government officials any discretion whatsoever to decline to include a "No Surprises" guarantee in any particular ITP, or even to use it as a bargaining chip in exchange for additional conservation measures. Rather, the rule irrationally requires the Services to make "No Surprises" guarantees to all ITP holders for the entire duration of the permits, regardless of the degree of imperilment of the species affected, the length of the permit, the amount of habitat destroyed, or any other variables. The Administration has never furnished a coherent explanation for this "one-size-fits-all" approach, which simply disregards the inherent variability of nature, and strips government negotiators of the ammunition they need to secure the best possible result for endangered and threatened species.
The farfetched premise underlying the No Surprises rule is that, when unexpected changes occur to the detriment of species, the federal government -- i.e., federal taxpayers -- will be able to address those developments, rather than the ITP holders themselves, who have received extraordinary permits to kill, harm, or otherwise drive endangered species closer to extinction. As suggested previously, that premise reverses decades of federal environmental policy, which is predicated on the assumption that those responsible for causing harm to the environment -- and not federal taxpayers -- are obligated to pay for those damages.
But even aside from that sharp break with precedent, the Administration's premise that it will have sufficient funds to respond to all unanticipated developments affecting species -- e.g., by purchasing additional habitat for species harmed by ITPs -- has no basis in reality, especially since high-ranking Administration officials (such as the Director of the Fish and Wildlife Service) have repeatedly sworn in affidavits filed in federal courts that they lack the necessary resources even to meet non-discretionary statutory deadlines because of insufficient appropriations. On the other hand, many of the ITP holders who have received decades-long No Surprises assurances are multi-million dollar companies which obviously could afford to make necessary changes in their HCPs. For example, in 1998, the Plum Creek Timber Company had revenues of $ 669.4 millions, with a net income of $ 75.4 million. Another major beneficiary of the government's No Surprises policy -- the Weyerhauser Corporation -- had sales of $ 10.8 billion in 1998 and earned $ 339 million. There is no sound reason why companies such as these cannot and should not be fully liable when their HCPs prove to be inadequate to compensate for the harm that the companies' actions are doing to endangered and threatened species.
LACK OF MEANINGFUL PUBLIC INPUT
The Administration's false characterization of HCPs' as "deals" -- instead of legally required permits conditions, which is what they are under federal law -- has inexorably led to another devastating, albeit tacit, government policy. As recently set forth in a study of the HCP process by the University of Michigan School of Natural Resources, the Administration is failing to "provide[] meaningful opportunities for public involvement in the HCP process" because it has far "higher priorities than public participation, including streamlining the HCP planning process, maintaining congressional support for the ESA, providing flexibility to landowners, and enticing landowners to pursue HCP agreements." University of Michigan School of Natural Resources & Environment, Public Participation in Habitat Conservation Planning 4 (1998). Consequently -- as occurred with the No Surprises policy -- even legitimate public and scientific concerns are completely ignored in the mad rush to approve HCPs at all costs. The University of Michigan report quotes one FWS biologist working on numerous HCPs as saying that:
"We have been bombarded from above with this sort of can-do attitude -- to get our there and work with the applicant and get some product on the market. Anything that delays that or makes it more difficult is not viewed favorably. The whole concept of customer service has been really stressed with the applicant being considered the only customer."
Id. at 23.
My firm is currently litigating a case, on behalf of Defenders of Wildlife and a Maryland conservationist, which reflects all to well the Administration's jaundiced attitude towards public involvement in the HCP process. The case involves an effort to build a housing project in the habitat of another desperately endangered species, the Delmarva fox squirrel. That species has been reduced to about 10% of its former range, with most of the remaining fox squirrels located in only four counties of Maryland's Eastern Shore which is experiencing rapid development. Many of the populations of fox squirrels that exist today are located in small, isolated groups which are directly threatened by the ongoing loss and fragmentation of their habitat. Collisions with cars associated with human development are the main cause of fox squirrel deaths, along with predation by pets and other human-caused disturbances.
Despite these severe, ongoing threats to the species, the Fish and Wildlife Service has done virtually nothing to stem the destruction of fox squirrel habitat on private lands. Instead, the Service recently issued an ITP to a developer which expressly authorizes the razing of still more fox squirrel habitat, and allows the direct "take" of at least fifteen endangered fox squirrels, out of a local population of only 10-40 individuals. As compensation for this loss, the Service stated that it was requiring extensive "mitigation," which consisted largely of the developer's commitment to preserve some off-site area which the FWS asserted was "optimal" fox squirrel habitat.
Yet when the FWS solicited public comment on the ITP/HCP, it failed even to inform the public about the location of the off-site mitigation area, although it knew about the proposed location at the time it solicited public comments And when a representative of Defenders of Wildlife -- which has been very involved in fox squirrel conservation issues -- informed the Service that it and other members of the public obviously could not provide meaningful comments without even knowing the location of the off-site mitigation area, the Service flatly conceded that the documents it had made available for public review had "not adequately defined" the off-site area which is the centerpiece of the HCP. Incredibly, however, the Service then delayed providing identifying information about the off-site location until after the close of the comment period, so that the concerned public never had the opportunity even to submit comments on this critical feature of the HCP. Despite Defenders' repeated requests, the Service has refused to reopen the comment opportunity and, even in response to a federal lawsuit, it is steadfastly insisting that it could approve the HCP without even hearing environmentalists' concerns regarding the value of the off-site mitigation area to fox squirrels.
This case also shows that meaningful public input is not merely window dressing, but can be extremely valuable to the scientific integrity underlying the HCP/ITP process. As it turns out, the off-site mitigation area is not "optimal" fox squirrel habitat. To the contrary, according to the world's leading expert on the species, Dr. Vagn Flyger -- who has studied the fox squirrel for the past fifty years and who, incidentally, was FWS Director Jamie Clark's masters advisor at the University of Maryland -- the off-site area is "exceptionally poor [fox squirrel] habitat" and hence is of "no conservation benefit to the subspecies." Of course, the public never even had the opportunity to submit such vital information to the Service because of the Administration's practice -- as described in detail in the University of Michigan study -- of treating public input as, at best, a minor inconvenience to be dispensed with as rapidly as possible.
RECOMMENDATIONS:
In drafting any legislation addressing HCPs, I respectfully suggest that the Subcommittee consider the following:
1. While there is no convincing policy rationale for making federal taxpayers, rather than ITP holders themselves, pay for changes in HCPs which are necessary to address new circumstances, if there is any consideration to legislatively codifying some permutation of the No Surprises rule, Congress must at least ensure that there is an adequate, guaranteed source of funding to deal with such developments. The current scenario -- under which ITP holders are let off the hook, while totally inadequate funds are appropriated to the Departments of the Interior and Commerce -- will obviously doom many species to extinction.
2. Any legislation should expressly require that all ITPs/HCPs contain detailed adaptive management provisions which make the ITP holders responsible for addressing all reasonably foreseeable developments which might adversely affect species whose taking is authorized by the ITP. While the Administration has, in response to criticism from the scientific community, acknowledged the importance of adaptive management provisions, it has never issued a regulation actually requiring them. Nor has the Administration required that all ITPs/HCPs include the kinds of comprehensive monitoring programs without which adaptive management requirements are useless.
3. Congress should, under no circumstances, endorse the Administration's policy of automatically extending No Surprises guarantees to each and every ITP holder for the duration of the permit, irrespective of the size of the area affected by the permit, the nature of the endangered species impacted, who the ITP holder is, and other significant variables. As discussed above, such an approach erroneously assumes that all ITPs/HCPs should be treated in identical fashion, and also precludes government scientists from extracting, in negotiations, the best possible conservation measures for imperilled species.
4. To ensure that the public has meaningful input into the ITP/HCP approval process, Congress should require that the public be involved sufficiently early in the process so that such public input does not come only after a "deal" has already effectively been struck between the ITP applicant and the Service. One way to accomplish this result is by requiring that the proposed ITP/HCP -- and all underlying scientific documentation -- be made available for public review before any substantive discussions occur between the developer and the Service. That way, the Service will receive the benefit of public and scientific input when it actually makes the critical decision of whether to approve the permit and, if so, on precisely what terms.
CONCLUSION
According to a nationwide survey of biologists recently announced by the American Museum of National History, "seven out of ten biologists believe that we are in the midst of a mass extinction of living things, and that this loss of species will pose a major threat to human existence in the next century." Unlike prior extinctions, this crisis is "mainly the result of human activity and not natural phenomena." These scientists "rate biodiversity loss as a more serious environmental problem than the depletion of the ozone layer, global warming, or pollution and contamination." Indeed, the vast majority of scientists polled believe that "during the next thirty years as many as one-fifth of all species alive today will become extinct, and one third think that as many as half of all species on the Earth will die out during that time." (A copy of the press release announcing these results is Attachment D).
When confronted with what scientists agree is a "mass extinction" of living creatures, the last thing the U.S. government should be doing is approving HCPs which harm, rather than help, endangered species; giving unprecedented regulatory guarantees to those who wish to "take" such species; and going out of its way to exclude the public and independent scientists from the process by which HCPs are considered and approved. Sadly, though, that is precisely what this Administration is doing. Before it is too late for the Alabama Beach Mouse, the Delmarva Fox Squirrel, and countless other species for which time is rapidly running out, I urge this Subcommittee, and Congress as a whole, to consider and adopt legislation which restores scientific integrity to the HCP process, and reaffirms this nation's commitment to do what it can to stem the accelerating loss of animals and plants in this country and throughout the world.