- - Thursday, February 28, 2013

Remember the northern spotted owl? Once it was a symbol of environmental protection. Today, it symbolizes how regulatory decisions driven by ideology rather than science can devastate local economies without helping the species they were intended to protect.

In the late 1980s, we heard that logging was wiping out the owls, and to save them we had to gut one of the Pacific Northwest’s major industries. The U.S. Fish and Wildlife Service declared the spotted owl threatened in 1990, and in 1992 began putting its habitat off-limits to timber production — 5.3 million acres of it by 2008. In November, the Obama administration nearly doubled that total to 9.6 million acres.

By some estimates, more than 200 mills in the area have closed in the past two decades. Thousands of jobs disappeared. At least we saved the owl, right?

Well, no. Its numbers kept right on declining.

In the intervening years, we’ve learned that its difficulties primarily come from a bigger and tougher rival, the barred owl. Even Fish and Wildlife Service Director Dan Ashe has noted “mounting evidence that competition from barred owls is a major factor in the spotted owl’s decline.”

There’s a lesson in this debacle.

Heavy-handed federal regulation can put some of our communities on the endangered list, hurting local industries as well as government finances.

The reason is the avalanche of species under review for listing under the Endangered Species Act. Since 1973, the federal government has listed about 1,400 species as endangered or threatened. Just since 2007, though, more than 1,250 additional species have been petitioned for listing.

This surge is a result of “megapetitions,” requests by activists for reviews of hundreds of species at a time. The Fish and Wildlife Service can’t handle these requests within the statutory deadlines. In fact, clogging the process seems to be the intent of the activists. Delays lead to lawsuits — and settlements on the plaintiffs’ terms.

For communities and private landowners, the Endangered Species Act can be the toughest environmental law to challenge successfully. For example, the act requires listing decisions to be based on “the best scientific and commercial data available.” Not adequate or even accurate data, mind you, just “the best available” — and listing supporters often are the only ones offering any data. Thus, the burden of doing research and collecting relevant data falls on those affected by a potential listing.

This is troubling, as those who live in the affected areas often have little or no warning of federal action and little guidance on how to gather data in response.

Worst of all, there is little evidence that the Endangered Species Act regulation does any good. Of the approximately 1,400 species to receive protection since 1973, only 27 — 2 percent of the total — have recovered enough to be delisted.

In Texas, we’re achieving something better, a way to reach the real objective with collaborative, market-based responses and objective scientific research. Our task force faced its biggest challenge so far after a December 2010 proposal for listing the dunes sagebrush lizard, which could have had catastrophic effects on the Permian Basin, an area accounting for two-thirds of Texas’ oil production and tens of thousands of jobs.

Little reliable data were available on the dunes sagebrush lizard and, with stakeholder funding, we obtained some first-class research by Texas university scientists. The lizard was previously thought to live in only a few sites in West Texas. From this research, we learned of 28 additional locations. We also convened stakeholders to create the Texas Conservation Plan, a voluntary program to protect the lizard while keeping the region’s economy strong. In the end, the Fish and Wildlife Service decided we had done enough to justify not listing the lizard.

This effort can provide a template for successful challenges to excessive regulation while ensuring that we protect what needs to be protected.

First, the local community has to be involved and active. Once they learn of a listing proposal, interested parties should meet early and often and share the work of navigating the regulatory maze. Communities should build coalitions and prepare for long battles, and our task force is ready to help them.

Second, fight bad or incomplete data with scientific research. We all need to push for reforms to this cumbersome and ineffective law. Sen. John Cornyn, Texas Republican, is expected to file legislation this week that aims to do just that. His bill directly targets the lawsuits driven by megapetitions that clog the regulatory process and give activist groups unwarranted authority over the results. It would enhance the abilities of local governments, landowners and other stakeholders to intervene in these lawsuits, and give state and county governments the opportunity to block settlements that fail to take local interests into account and are offered without their consent. It also would ban the use of taxpayer dollars to fund the most problematic kind of Endangered Species Act lawsuits.

Ultimately, however, we should move this regulatory power back to the state and local governments, which are closest to the land, care most about it and best know the costs of any regulation that limit its use.

Solutions that involve the community can succeed where top-down bureaucratic edicts fail. It’s time to work together to craft solutions we can all live with.

Susan Combs is the Texas comptroller of public accounts.

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