Senate environmental consultation bill a classic case in overreaction

One of the under-appreciated values that seems rapidly to be disappearing from our political culture is proportionality. At one time, we had small responses to small problems, middle-sized responses to middle-sized problems, and big responses only to truly major problems. Politicians irritated one another then just as they do now, but the responses were measured and thus unlikely to set off a destructive cycle of retaliation.

Today, everything seems to be about overkill. One’s opponents never seem to be misguided: they always have to be evil. And rather than solving small problems as they arise, all too often those problems are blown out of proportion as excuses to advance much broader agendas.

An unfortunate case in point is S. 605, the “Litigation Relief for Forest Management Projects Act,” which is set for a hearing later this month. Framed as a response to a controversial appellate court decision, it goes much, much farther and would severely limit environmental review of projects that could badly damage vulnerable wildlife.

{mosads}At issue is a process known as environmental consultation. It basically requires government agencies whose activities could harm endangered species to consult with the experts at the Interior Department’s Fish and Wildlife Service to make sure that they do not destroy critical habitat or otherwise prevent the animals from surviving.

The Service assists other federal agencies more than 30,000 times a year, with the vast majority of these interactions either quick endorsements of projects that pose no problems or suggestions offered early in the planning stages to take simple precautions against harming endangered species.

To make the process most effective, the law has established two different kinds of consultations. Project consultations are required whenever a federal agency intends to initiate a new project, such as major road-building or timber-cutting. These are valuable as far as they go, but sometimes an endangered animal will be harmed only modestly by each individual project but devastated by the cumulative effect of all of them. For example, cutting down a few trees here or there may not be a problem but several clear-cutting projects in close proximity may leave animals nowhere to climb to escape predators.

To take into account cumulative effects that project consultations miss, agencies periodically initiate a broader planning effort that includes a programmatic consultation.

In theory, these occur every five years, which seems about right. In fact, shrunken budgets have limited planning to once every 15 or 20 years. Because a lot can happen in 20 years, the timing of these programmatic consultations can be crucial. Federal regulations recognize this and call for reopening programmatic consultations if dangers arise that had not been considered: if new endangered species are identified or land is newly found to be critical to known vulnerable animals.

The dispute here is about how much new information is required to reopen a review that considers the cumulative effects of many agency projects. One federal appeals court ordered a consultation re-opened after the Forest Service acted to help endangered lynx by broadening the area where they are protected. Expanded protection is not really a new threat, and S. 605’s sponsors are outraged. But if this decision is a problem, it is a small one.

S. 605, however, is a classic case of overreaction. Rather than tightening the standards for when an environmental consultation must be reopened, it prohibits re-opening programmatic consultations at all. Thus, if a critically endangered animal is discovered within a forest designated for extensive clear-cutting, and the loss of that habitat could doom the animal, no environmental review would be required as long as no one logging project can be proven to be the lethal blow.

The bill also blocks reopening consultations for oil and gas drilling projects, which had nothing to do with the disputed case and are subject to entirely different procedures.

Under this vision, the Endangered Species Act becomes a modern-day Sleeping Beauty. If it pricks its finger on an uninformed programmatic consultation, it is condemned to sleep for 20 years, oblivious to any new knowledge or threats to the animals it is there to protect. Indeed, because of the time required to conduct and implement the results of a programmatic review, our Sleeping Beauty’s slumbers could well approach three decades.

In the original fairy tale, intense vegetation grew up around the princess’s castle and countless prospective suitors were powerless to cut through it. In this dismal modern retelling, the vegetation — as well as much forest land that is well-known to be critical habitat for endangered animals — would be replaced with oil derricks long before Prince Charming makes his entry. And the animals lost while she was sleeping can never be recovered.

If the sponsors believe the court went too far, they should establish reasonable standards for when to reopen environmental consultations. But the proposed legislation is an unwelcome guest at the ball.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.