that last few musical bars of a musician's solo are always a place where one can hear the true spirit of the player. it's a wink and a nod to fellow players and music afficianados in which soloists often get especially creative in a very small space as they comment upon the theme of their solo and link it back into the main body of the song being performed.

it's an ugly analogy, but one can look at what political administrations do on the way out to attempt to capture the spirit of their legacy. the attempt to further damage the endangered species act by the bush administration has to be seen in this light along with other actions like removing the federal ban on coastal oil drilling, sending huge naval armadas against iran, or granting telecoms immunity for illegally spying on people's communications, amongst a host of other things.

the u.s. right has been trying since the first days of the bush cabal's seizure of power to annul the gamut of major pieces of environmental legislation and to erase the input of environmental scientists in policy-making. the point person for attacking the endangered species act was rep. richard pombo (http://en.wikipedia.org/wiki/Richard_Pombo), who was Chair of the House Resource Committee in charge of natural resource policy for the house until he finally lost his seat in 2006 amidst swirling evidence of his massive corruption. the current amendment to the ESA has to be seen as an extension of Pombo's work and a final tip of the cap as a criminal bloc of neoliberal ideologues unconcerned with ecological matters that threaten profit dance out the door with their kitties of cash.

but, it actually gets worse! for many environmental groups have played into the hands of rightist and corporate-based attempts to denude the power of the ESA in recent years. quietly, the new normal in ESA vs. development issues has been to call federal administrators in to draft what, as i previously mentioned, are called habitat protection plans (HPPs).

what happens here is something like this:

the ESA declares it unlawful to either harm an endangered species or its habitat (and in fact it even calls for the improvement of such habitat in order to ensure progress towards getting species OFF the list -- so the law is proactive and progressive, not just reactive). thus, when a developer wants to develop a piece of land, there are times when environmentalists will seek to block this development by filing a law suit that says it is the habitat of an endangered species. this law suit, at the least buys strategic time to organize against the development and can also be costly to the point that the developer feels that developing the land is no longer profitable, hence it is not worth doing and the project is dropped.

now, the right claims that the large majority of these law suits are frivilous and so what is happening is an abuse of the courts and a hinderance to business. are there such lawsuits that are strategic and not based in a serious defense of actual endangered species on a particular piece of land? i'm sure there are. on the other hand, the charge from the right is overly cynical and propagandistic, as well as against the democratic tradition of due process in the united states -- for the courts and administrations have systems in place specifically to deal with evaluating the quality of a claim and to toss out (and even penalize) mis-claims. moreover, let's face it -- there wouldn't be an ESA in place if there weren't really a number of endangered species threatened either directly or indirectly by development, and as this development has boomed over the last few decades, the need for the law has greatened, not lessened. so the chance that any significant piece of land IS crucial to at least an endangered species is in fact an argument that is less and less hard to prove and NOT a tall tale.

so, a developer wants to develop land but the environmentalists say there is an endangered species there, stopping the process ending in a lengthy law suit. the developer has a lot to lose b/c if the lawsuit wins, then there was a large cost in time and money for it and the developer gets nothing coming out of it. the environmentalists have the possibility that they could lose the lawsuit and watch the entire piece of land become a strip mall or subdivision, as well as their own costs. so the federal govt -- the interior agency -- steps in prior to the lawsuit and says, "ok you two -- here's a win-win (corporate language)...we'll play bipartisan mediator in this. developer we'll grant you the right to develop x percentage of the land (usually between 50-90%) and in return you'll promise not to develop the other part of the land as well as put money into its ecological restoration as an endangered species habitat." increasingly, these habitat protection plans are the norm, even though technically they clearly run afoul of the endangered species act itself which should take precedence as law of the land.

the major problem besides this, as i see it, is that it is not clear in most if not all cases how long these HPPs are legally binding on the developers. if they agree to develop 80% of a plot of land and don't touch the other part for 30 years, what about year 31? further, what happens if the real estate changes hands? are the new owners legally bound by the HPP in all cases? further, the call for ecological restoration is a ruse almost always. study after study shows that developers do the bare minimum and generally don't comply with even basic ecological science in terms of their restoration schemes -- planting palm trees in a riparian habitat is not restoration but desecration. additionally, it is not like one can develop next to a pristine habitat and not affect it by being next to it. so developing the majority of the land in effect comes close to having a developmental effect upon the totality of the land. lastly, providing some habitat for species may be better than providing no habitat, but if it is not enough habitat it may still result in threatening the species regardless. and again, it is not a win for the species and the habitat which is currently protected 100% by the ESA when a HPP gives the species protection for 15% of that same area.

so there are major issues in terms of attempts to amend and end-around the ESA. obama has promised that he will attmept to re-rule on this if it goes through, as Bush did when he took office and cancelled the Clinton administration's parting shot at creating millions of acres of additional wilderness through extension of the roadless rule. but legislation, once passed, has a bad precedent setting effect. and so this should not be allowed to happen altogether. neither is it clear as of yet just how "green" an obama adminstration is committed to being. the set of policy he outlines presently on his website has to be considered better than Bush most certainly but weaker than Gore (and I don't consider Al Gore an environmental hero).

so what can be done -- the federal commenting period begins tomorrow and i will hunt down the link and post it here. people can comment online and, as previously mentioned, if enough people comment negatively this is in theory enough to block the action. does it? my guess is that we all have a sense of that answer at this point in time...

in addition to this action, though, i would say the best thing to do is to educate! to get informed on this matter and use it as an opportunity for critical context into the issues and the historical and political context of these issues. this will invariably lead to finding organizations already deployed on various facets of the knowledge one produces and linking up with them, then furthers this knowledge and produces more still. in short, growing the base for change is the best answer. this may not stop this weakening of endangered species law now. but could lead to the formation of a set of new laws or other norms in the coming years that rewrite the ways in which business can conduct its affairs and which seek to end the exploitation of nature in meaningful ways. this HAPPENED coming out of the 1960s when the major u.s. environmental laws were passed within years of each other. it could happen again, but won't unless people know, care, and are ready to push for it.

--------------------------
Richard Kahn, Ph.D.
Assistant Professor of Educational Foundations and Research
University of North Dakota
231 Centennial Drive, Stop 7189, ED 305
Grand Forks, ND 58202
Ph: 701-777-3431