A Definitive Guide to Congress’ Attacks on Conservation Law

This year we've seen an absurd number of assaults on legislation and agencies that protects birds and their habitat.

If an endangered species is found only in one state, why not entrust that state, not the federal government, to regulate it? The approach would “better protect endangered species by allowing a more tailored response,” said Sen. Rand Paul (R-KY), when he introduced legislation to amend the Endangered Species Act in March. When you put it that way, the argument sounds downright reasonable. “But it would remove half—half—of the species from the endangered species list,” says Mike Daulton, Audubon’s vice president of government relations. “It’s just one example of the combination of sneaky or underhanded tactics we’re seeing that would fundamentally unravel core protections for wildlife.” 

This year there’s been a concerted campaign in Congress to hobble major regulations that safeguard animals, land, air, and water. Such assaults aren’t new, but what’s notable is the sheer scale and vociferousness now on display. With Republicans in control of both chambers, and Congress more polarized than at any time in modern history, these onslaughts have a greater likelihood of success than they have in the past. 

Most of the attacks—including dozens aimed at gutting the ESA—have come in the form of riders, stealth amendments to big bills that have a good chance of passing. But several other methods are being undertaken, says Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, and by and large they’re couched in anodyne, even appealing, rhetoric: They’re all about increasing transparency, reforming out-of-date regulations, and employing more rigorous cost-benefit analyses. But “the narratives are totally false,” says Rosenberg, who coauthored a paper in the journal Science about recent bills that would limit the use of credible science to inform legislation and would slow or block new protections from being put in place. “These attacks undermine democracy, and give people who already have the strongest voice—industry—an even stronger hand.”

If you value tough protections for birds and animals, and the natural resources they rely on, keep your eye out for strategies like these.

Sucker Punch

Method: Attach a rider to an important bill that will likely pass, most often a large-scale spending bill that legislators will be too busy (or lazy) to read carefully.

Case study: In January, Rep. Jeff Duncan (R-SC) introduced a bill, H.R. 493, that would let industry off the hook if their activities killed birds protected under the Migratory Bird Treaty Act. It didn’t get any traction, so in June Duncan attached a rider to the 2016 Commerce, Justice, Science, and Related Agencies Appropriations Act that would prevent the Department of Justice from using any funds to prosecute offenders under the MBTA. When the White House indicated that it would veto the Commerce Act (for reasons unrelated to Duncan’s rider), the Congressman had a backup plan ready: He attached a similar amendment to a bill to fund the U.S. Department of the Interior and the Environmental Protection Agency for 2016. Duke Energy, whose renewable energy division was the first of only two green power companies ever prosecuted under the MBTA, is seventh overall among Duncan’s donors.

Status: Failed. Duncan bowed to pressure from Audubon, other groups, and the public to withdraw all MBTA-related amendments.

Make It About Money

Method: Require that a cost-benefit analysis be factored into any endangered species listing decision.

Case study: The Common Sense in Species Protection Act, introduced by Sen. Dean Heller (R-NV), seeks to amend the ESA to require that the economic effects of a listing be considered. “Nevada relies heavily on industries like mining, ranching, and energy development,” Heller said in a press release. “With one stroke of a pen, the USFWS can greatly limit those types of activities on millions of acres of land.” Under S. 112, the Secretary of the Interior would have to publish, and make available for public comment, a draft economic analysis when protecting critical habitat for endangered species. If the costs were deemed too high in some places, those locations would be excluded, reducing habitat protections for plants and animals—while paving the way for development. 

Status: Alive in the Senate; a bill with the same name, H.R. 2098, has been introduced in the House.

The Hard-Luck Tale

Method: Give Congress the power to decide whether major environmental or conservation regulations are too onerous.

Case study: “Since its creation in 1970, the Environmental Protection Agency has done more harm than good.”  That’s what Sen. Rand Paul wrote in 2011, in support of the REINS, or Regulations from the Executive in Need of Scrutiny Act, which would hobble the ability of the EPA and other agencies to put in place important—what Paul considers “burdensome”—regulations. Instead, joint congressional approval would be required on any major federal rules with an economic impact of $100 million or more. If either chamber failed to act—a fair bet, given the current polarization in Congress—an agency wouldn’t be able to move forward with a new rule until the next legislative session.  

Status: Passed the House in late July and moved to the Senate; the Obama administration has promised a veto.

Don’t Tread on Me

Method: Assert states’ rights when weakening environmental laws.

Case study: Members of Congress with strong ties to the coal industry are trying to undermine the Clean Air Act and halt, or at least slow, U.S. efforts to cut carbon pollution from existing power plants under the Obama administration’s Clean Power Plan. The regulations, finalized in August, require today’s power producers to cut CO2 emissions 32 percent below 2005 levels by 2030. But Rep. Ed Whitfield (R-KY), chairman of the House Energy and Commerce Committee’s energy and power subcommittee, whose major funders include electric utilities, has taken a lead role in fighting to ensure that the regulation—which he called an “unprecedented power grab”—never takes effect. Under his counterattack legislation, governors would be granted unparalleled discretion to avoid complying with the Clean Air Act if doing so would fall under the ambiguous category of  economic hardship. It would also bar any enforcement until all court challenges are resolved, which could tack on years of delays.  

Status: Whitfield’s bill passed the House in June by a resounding 247-180 vote; a related bill was introduced in the Senate. The administration has vowed to veto.  

Sharp Shooting

Method: Remove protections for a single species.

Case study: The oil and gas industry has mobilized to try to prevent the Interior Department from disqualifying large stretches of land as potential drilling sites over concerns that drilling and fracking operations could harm the Greater Sage-Grouse. Enter the harmless-sounding Sage-Grouse Protection and Conservation Act. Introduced to the Senate by Cory Gardner (R-CO) and to the House by Chris Stewart (R-UT), it would prohibit the U.S. Fish and Wildlife Service from making a listing determination of the Greater Sage-Grouse for at least six years and require the federal government to halt its planning process and wait to adopt plans the states develop instead. Anadarko Petroleum and Koch Industries are among Gardner’s top five campaign contributors overall, and the oil and gas industry has been the top industry contributor to Stewart’s campaigns across his career.

Status: Alive in the Senate and the House. (Similar assaults keep coming, attacking other species, including northern long-eared bats, American burying beetles, Lesser Prairie-Chickens, and gray wolves, to name a few.)

The Avalanche

Method: Require paralyzing amounts of disclosure in the name of “transparency.”

Case study: In a naked attempt to eliminate EPA regulation, the Secret Science Reform Act, introduced to both chambers by Sen. John Barrasso (R-WY) and Rep. Lamar Smith (R-TX), would prevent the agency from implementing a regulation unless all the data, models, methods, and other information in the scientific studies used to develop the rule are made publicly available. But EPA data often come from studies based on confidential information—from proprietary industry sources to health records—that the agency can’t legally disclose. The agency would also have to disregard findings that aren’t easily reproduced. The bill wouldn’t compel companies and others to make their own data publicly available to the agency. If this act became law, the EPA would effectively be unable to issue new rules on a host of toxic substances, including pesticides, slated for evaluation.

Status: It passed in the House in March and was on the Senate docket as Audubon went to press. The White House has threatened to veto.  

Perversion of Intent

Method: Fundamentally change the objective of long-standing legislation.  

Case study: The 50-year-old Land and Water Conservation Fund is America’s single largest conservation funding source. It uses revenues—$900 million per year—from offshore drilling to restore and protect a wide variety of habitat, including parks, refuges, and beaches. The LWCF is set to expire on September 30, but while reauthorization of such legislation is often pro forma, with the legislation continuing in the same form, this time some Republicans have seemed bent on redirecting the funds intended for conservation toward unrelated spending—all in the name of “modernization.”  In the Senate, for example, Energy and Natural Resources Committee Chairwoman Lisa Murkowski (R-AK) proposed shifting LWCF funds away from land acquisition and toward other spending needs, such as road maintenance. And the House Natural Resources Committee Chairman Rob Bishop (R-UT), who has received more campaign funds from oil and gas than any other industry in his 12-year career, proposed that LWCF dollars instead be “reinvested in the education of future American energy industry workers.” 

Status: As Audubon went to press, there were positive developments for the LWCF. On July 30 the Senate Energy and Natural Resources Committee voted to send a bipartisan energy bill to the full Senate—including an amendment to permanently authorize the LWCF in a way that would ensure the dollars go to conservation efforts.