This blog post presents an op-ed published in Common Dreams, written by Defenders of Wildlife’s Chris Westfall, warning that the Senate’s permitting reform bill (BAAJA) would gut the Endangered Species Act by letting states take over federal wildlife reviews, exempting highways and water permits from review, and slashing the window for legal challenges, undermining a law that data shows rarely delays projects.
For more than 50 years, the ESA has reflected a bipartisan commitment to preventing extinction. Our senators should not trade that legacy for a bill that creates new bureaucratic hurdles and leaves imperiled wildlife with fewer protections.
America needs development and a transition to clean energy, something we can all largely agree upon. Another thing we agree on is the importance of protecting our shared natural heritage and utilizing bedrock conservation laws to protect it. But the Senate’s Bipartisan American Affordability and Jobs Act, or BAAJA, promises expediency through permitting in rubber-stamping development while also posing one of the most sweeping attacks on the Endangered Species Act in the law’s more than 50-year history.
The ESA does not stand in the way of America achieving a clean energy future and increased development. It is one of the world’s most successful conservation laws, credited with saving 99% of listed species from extinction. And it is extremely popular, with the support of 84% of the American public. The Senate’s bill would weaken it at every point of the permitting process.
Supporters of rolling back provisions of the ESA argue that endangered species reviews slow projects down, but evidence says otherwise. A peer-reviewed study of 88,290 US Fish and Wildlife Service consultations over a seven-year period found jeopardy for only two projects, and even in those two circumstances, an alternative was found to allow the projects to proceed in a modified form. Not a single project was stopped. Formal consultations took an average of two months to complete. And informal consultations, accounting for more than 90% of reviews, took an average of two weeks to complete.
With only 120-230 Florida panthers left in the wild, exempting highways from review removes the very tool designed to find solutions before we lose this animal to extinction.
ESA consultation is not a roadblock. It’s how projects move forward while identifying and reducing harm to wildlife. The Senate’s BAAJA fixes a problem that the data shows does not exist and instead will create very real and dangerous problems to species and habitat.
BAAJA would let states take over federal endangered species reviews, called consultations. This could happen even when agencies lack the staff, funding, or scientific expertise to do the work. Species don’t understand state boundary lines. Migratory birds travel across states, making it unrealistic and extremely difficult for a single state to assess a project’s effects on them. States that have become hostile to ESA protections, like Alaska, could attempt to lock in oil and gas development despite protections for animals like polar bears. And without the staff or expertise to conduct efficient consultations, state reviews could easily be slower than the fast federal averages that we have today.
What’s more, certain highway projects and nationwide water-permit renewals would be fully exempt from key ESA safeguards, creating God Squads without the squad process. Roads fragment habitat, and vehicle collisions kill wildlife. For the Florida panther, vehicle strikes are a leading cause of death and their efforts to expand territory are inhibited by roadways that cut through their range. With only 120-230 Florida panthers left in the wild, exempting highways from review removes the very tool designed to find solutions before we lose this animal to extinction. If this bill passed, these highway projects would never even ask the question whether or not they would jeopardize the existence of a species.
Under BAAJA, communities and conservation organizations would have just 150 days to bring certain ESA challenges, down from six years that currently apply. Local cases from around the country would have to be filed in the DC Circuit, and courts would operate on accelerated schedules. Expecting a small community group in rural America to move with the expediency and resources of a corporation is unrealistic, inequitable, and foolish. If the public cannot challenge unlawful decisions in time, the law becomes unenforceable, and harm to wildlife is often irreversible.
The bill also introduces new, vaguely drafted statutory definitions and standards for scientific assessments. Vague and confusing language like this is rife for abuse and could invite lawsuits that slow projects down, which is precisely the opposite of this bill’s stated goal.The language could be interpreted to make it harder for wildlife biologists to act on the best available science, particularly when information is incomplete, which is often the case with rare or elusive species.
This bill also implies that our hard-working federal employees aren’t doing enough. It would shorten the standard formal consultation period from 90 to 60 days without providing any additional agency staffing or funding to meet these shortened deadlines. Cutting the clock without capacity isn’t creating efficiency, it’s telling scientists that they either aren’t working hard enough, or that they should rush through the process, an offensive idea that could lead to less thorough reviews and allow key information to protect endangered species to slip through the cracks.
Real permitting reform is possible, and we can foster development in the US. Investing in agency staffing, enhancing coordination, modernizing technological systems, and giving project developers earlier, clearer guidance are direct paths to improving the process. Gutting one of our most effective and popular conservation laws does the opposite.
For more than 50 years, the ESA has reflected a bipartisan commitment to preventing extinction. Our senators should not trade that legacy for a bill that creates new bureaucratic hurdles and leaves imperiled wildlife with fewer protections.
Contact your senators today and tell them to oppose BAAJA because of its ESA attacks and to keep our wildlife and natural heritage safe for generations to come.
Chris Westfall is senior government relations legislative counsel at Defenders of Wildlife.
