H.R. 4315

Endangered Species Transparency and Reasonableness Act

Date
July 29, 2014 (113th Congress, 2nd Session)

Staff Contact
Emily Leviner

Floor Situation

On Tuesday, July 29, 2014, the House will consider H.R. 4315, the Endangered Species Transparency and Reasonableness Act, under a rule.  The Rules Committee print of H.R. 4315 combines the texts of H.R. 4315, 4316, 4317, and 4318 as reported by the House Natural Resources Committee, with modifications.  Information regarding Committee action on each bill is detailed below.

Bill Summary

H.R. 4315 makes several specific reforms to the Endangered Species Act of 1973 (ESA) to increase transparency and enhance species recovery.  Sec. 2 of the bill requires online publication of the data used by federal agencies to make ESA listing decisions.[1]  Sec. 2 reflects the text of H.R. 4315, the 21st Century Endangered Species Transparency Act, which was introduced on March 27, 2014 by Rep. Doc Hastings (R-WA).  The bill was marked up on April 30, 2014 and was ordered reported, as amended, by a vote of 17-15.[2]

Sec. 3 requires the federal government to disclose to states—prior to making a listing decision—the data on which the decision is based.  The bill requires the “best available scientific and commercial data” used by the federal government to include data from states, tribes, and local governments.  Sec. 3 reflects the text of H.R. 4317, the State, Tribal, and Local Species Transparency and Recovery Act, which was introduced on March 27, 2014 by Rep. Randy Neugebauer (R-TX).  The bill was marked up on April 30, 2014 and was ordered reported by a vote of 26-16.[3]

Sec. 4 requires the Secretary of the Interior to “report to Congress [within 90 days after the end of each fiscal year], and make available online, the federal taxpayer funds used to respond to ESA lawsuits, the number of employees dedicated to ESA litigation, and attorneys’ fees awarded in the course of ESA litigation and settlement agreements.”[4]  Sec. 4 reflects the text of H.R. 4316, the Endangered Species Recovery Transparency Act, which was introduced on March 27, 2013 by Rep. Cynthia Lummis (R-WY).  The bill was marked up on April 30, 2014 and was ordered reported, as amended, by 26-16.[5]

Sec. 5 limits the amount of attorneys’ fees available to prevailing parties in ESA citizen suits, permitting only “reasonable” fees.  The change brings ESA lawsuits into conformity with other existing law.  Sec. 5 reflects the text of H.R. 4318, the Endangered Species Litigation Reasonableness Act, which was introduced on March 27, 2014 by Rep. Bill Huizenga (R-MI).  The bill was referred to the House Natural Resources and Judiciary Committees.  The bill was marked up by the Natural Resources Committee on April 30, 2014 and was ordered reported by a vote of 27-15.[6]  The Judiciary Committee discharged the bill.

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[1] The bill provides an exception if disclosing the information would violate a state law relating to the protection of personal information.
[2] House Committee Report 113-537.
[3] House Committee Report 113-539.
[4] House Natural Resources Committee: H.R. 4315 – The Endangered Species Transparency & Reasonableness Act.
[5] House Committee Report 113-538.
[6] House Committee Report 113-540, Part I.

Background

The ESA was enacted in 1973 to protect and promote the recovery of species at risk of vanishing.[7]  Species are listed under ESA as endangered or threatened based on “the best available scientific information.”[8]  Although such ESA listings can dramatically restrict human use of land and associated resources, “federal agencies frequently [refuse to make] data and studies cited for key-listing decisions available or accessible, despite most of it being sponsored directly or indirectly through federal taxpayer-funded dollars.”[9]  In addition, such “best available scientific information” regularly ignores data provided by states, tribes, local governments, and other stakeholders.[10]

Over 1,500 domestic species have been listed since ESA was enacted, yet the recovery rate is only two percent.[11]  “Excessive litigation has become one of the greatest obstacles to the success of the ESA.  Instead of focusing on recovering endangered species, groups are using the ESA to file hundreds of lawsuits against the government.  In response, agencies have to spend time and financial resources addressing those lawsuits instead of species recovery.”[12]  The Obama Administration in 2011 negotiated sweeping settlements with legal activist groups, “greatly increasing ESA listings and habitat designations and impacting tens of thousands of acres and river miles across the country.”[13]  Under the settlements, the Administration is required “to decide by 2016 whether to list 779 species and designate critical habitat in all 50 states and Puerto Rico.”[14]

Beyond the significant impact these listings have on states and local communities, activist ESA lawsuits also burden American taxpayers more broadly.  “According to the Department of Justice, more than 500 ESA-related lawsuits were filed or opened against the federal government since 2009, and more than $21 million has been awarded in taxpayer funded attorneys’ fees to environmental lawyers . . . .”[15]  This figure fails to take into account the federal funds spent by agencies on ESA-related litigation—expenditures not currently being tracked.[16]

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[7] M. Lynne Corn & Kristina Alexander, The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues, Congressional Research Service (Jan.13, 2014) at Summary.
[8] Id. at 1.
[9] House Natural Resources Committee: H.R. 4315, The Endangered Species Transparency & Reasonableness Act.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.

Cost

The Rules Committee print of H.R. 4315 combines the texts of H.R. 4315, 4316, 4317, and 4318.  According to the respective CBO estimates,[17] none of the bills would significantly impact the federal budget.  In addition, the bills would not affect direct spending or revenues.

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[17] CBO Cost Estimate for H.R. 4315; CBO Cost Estimate for H.R. 4317; CBO Cost Estimate for H.R. 4316; CBO Cost Estimate for 4318.

Amendments

1)            MANAGERS: Rep. Hastings (R-WA) #2 – Amendment amends Section 2 of the bill to clarify extent of disclosure policy as it relates to State law and to Department of Defense classified information.

2)            Rep. DeFazio (D-OR) #1 – Amendment excludes scientific information published solely in internal Interior Department publications from the definition of “best available science.”

3)            Rep. Holt (D-NJ), Rep. Huffman (D-CA) #3 – Amendment strikes a provision which automatically defines all data submitted by State, County or Tribal governments as the “best available science,” regardless of its merit.

4)            Rep. Duffy (R-WI) #4 – Amendment requires disclosure of any federal funding used by a person or a governmental or non-governmental entity in bringing a claim in a covered suit.

Additional Information

For questions or further information contact the GOP Conference at 5-5107.

Additional Views

STATEMENT OF ADMINISTRATION POLICY
H.R. 4315 – 21st Century Endangered Species Transparency Act
(Rep. Hastings, R-Washington, and 28 cosponsors)

The Administration strongly opposes H.R. 4315, which is a bill that would rigidly constrain science, public input, and data in making Endangered Species Act (ESA) determinations.  H.R. 4315 would require several changes detrimental to the implementation of the ESA, which provides a critical safety net for America’s native fish, wildlife, and plants and which has produced remarkable successes.  The ESA is implemented in a transparent, accessible, science-based, and flexible manner that encourages landowners and communities to work cooperatively to benefit endangered species and the public.

Key ESA decisions are required to be based on the best available scientific and commercial data. H.R. 4315 would deem all data from a State, tribal, or county government to be “best available” without regard to the quality or merit of the data.  This would compromise the scientific basis for ESA decisions by requiring Federal agencies to consider information based on its source rather than its substance.

The bill would also require Federal agencies to publish on the internet all data used in ESA listing determinations.  Such a requirement would limit the amount and quality of information supporting ESA decisions by discouraging data sharing by scientists, State and local governments, and particularly private landowners, who do not want their information disclosed online.  This provision could also expose vulnerable wildlife and rare plants to increased poaching or vandalism.

In addition, H.R. 4315 would add yet another administratively burdensome reporting requirement to an already long list of reporting requirements, diverting limited agency resources away from species recovery efforts toward more paperwork.  Finally, the bill would limit the ability of citizens to seek recourse in the courts against unlawful Federal actions, diminishing a critical tool for citizens.

 If the President were presented with H.R. 4315, his senior advisers would recommend that he veto the bill.