EPA pioneer speaks on ESA
Vested interests 'fight furiously' against changing environmental laws
By STEVE BROWN
SEATTLE -- As the first administrator of the U.S. Environmental Protection Agency when it was formed in 1970, William Ruckelshaus oversaw the birth of an agency that has become a fixture in the U.S. political landscape.
He was also at the EPA three years later when President Richard Nixon signed into law the Endangered Species Act.
The EPA and the ESA have had a profound impact on U.S. agriculture. The EPA has taken on an increasingly prominent role as a regulatory force, and the Endangered Species Act, through efforts to protect threatened and endangered salmon, wolves and other species, has touched the lives of many Western farmers and ranchers.
Retired from federal service, Ruckelshaus, 79, now lives in Seattle and serves as chairman of the William D. Ruckelshaus Center, a collaborative problem-solving institution of the University of Washington and Washington State University.
The center recently helped Washington state's agricultural industry, environmental interests and counties hammer out a framework for cooperation on critical habitat areas that was enacted by the 2011 Legislature.
He recently sat down with Capital Press reporter Steve Brown in his downtown Seattle office to discuss the Endangered Species Act and its impact on agriculture. The answers have been edited for length and clarity.
Q It seems the focus of the Endangered Species Act has changed. From the point of view of many people who make their living from natural resources, the ESA is being used to block what they consider progress. What are your feelings on that?
A Why we are concerned about these species is because the Congress has said we have to be. If you want to change that approach, you have to go back and change the law.
If the law is working properly, the "how to" is an agreement by the people who will be impacted by the necessary changes. It doesn't work as well as it ought to, because a lot of time the government comes in and imposes habitat requirements that the manager of the land doesn't find completely reasonable.
There are some 16 pieces of major legislation that passed in the '70s, most of them when Nixon was president, a few of them under Ford. They are massive pieces of legislation, and there was very little understanding at the time they were passed of exactly how it was all going to work.
I thought when we started -- let's take the Clean Air Act. After a couple of years of administering it, I knew it needed change.
What has proven really hard is to get these laws changed, and the reason is, I think, the people who lobbied the laws through were primarily outside the government, and the government agencies that administered these laws and the staffs on committees remain in place for a long time -- they get a vested interest in the law and they fight furiously against any changes.
The ESA is an example of having a fairly dramatic effect on some landowners and some industries, but there aren't enough of those things going on at any one time so that the outcry for amendment is strong enough. ...
Q What's your feeling about how the ESA has affected private landowners, industries and development? Was it in the minds of members of Congress when they enacted the law?
A I don't know if it was or not. Anytime you have something going through Congress, and you try to figure out why congressmen or senators vote, it's like looking at this debt-limit dispute we just had. How in God's name can anybody know what they had in mind? I think what they contemplated was trying to restore these megafauna (such as bald eagles, bears and wolves). They wrote the law broadly enough, and of course it's been interpreted broadly enough, it encompasses a lot more than they probably originally intended.
Q What is the root of the legal challenges to biological opinions and court rulings?
A No one agrees on what the government says. Like the situation down on the Columbia -- my God, that's gone on for a couple of decades. It's very clear that the National Oceanic and Atmospheric Administration is not eager to take those dams down on the Snake River, so they write a biological opinion that doesn't recommend that.
The judge thinks the bi-ops are not sufficient to support the salmon. Whether he thinks the dams ought to come down or not, I don't know. That's at the center of the argument.
I think the people who are going to be impacted by these changes have got to be involved, and I would include farmers and ranchers in that category.
Q There have been specific environmental groups that have challenged the rulings, and if they win their appeal, they can get the federal government to reimburse the costs of their lawsuit. What do you think of that?
A When these laws first passed, the citizen's right to sue was a fairly regular provision in all of these laws. There was during the '70s a sort of a movement -- primarily led by lawyers in Washington -- because they didn't trust the government. There was a lot of mistrust of the government doing its job. That's kind of the expression of that mistrust.
Q So the government pays somebody to sue itself?
A It doesn't sound right, I admit. When these laws were lobbied through, they were lobbied by a lot of these public-interest law firms, who didn't have a lot of sources of income. I think the thought of the Congress was, if they have a legitimate case to make, should they be forced to somehow swallow the cost, or should the society as a whole -- that's what the government is -- pay them for doing it? So they decided they should be paid for doing it, if they're successful.
Q If you could go back and talk to those who framed this legislation, what changes would you suggest they make?
A When we take land to build a highway, we take it under the eminent domain provision of the Constitution. You can't take property without paying people for it. If you force people to change the way they manage their lands so as to preserve habitat, often you're taking some portion of that land just as clearly as if you run a highway through it, but we do it under an assertion of the police power in the law. The police power is simply protection of health, safety and environment, and welfare, really. You don't pay people when you have adverse economic effects on them in the exercise of that kind of power.
If I'm a landowner and someone is running a highway through my land, I may not like it, but at least I'm being compensated for it. If I'm forced to put buffers alongside streams that run through my land in order to protect salmon, sometimes those buffers take a significant amount of my land, and I think they should be compensated for that.
If that's a public good and it's being asserted against a private property owner, then why shouldn't the public pay for it the same way they do with a highway? But we don't.
Q That was the plan of the Forests and Fish Law here in Washington. (Enacted in 1999, the arrangement includes compensation for trees not harvested within stream buffers.) But then the state doesn't have money to pay for it.
A That's the problem. We just faced the same kind of agreement, that ended up with a statute, between the farmers, environmentalists, the tribes -- (which) were involved all the way to the end -- and the counties. And that law, where there's significant harm, suggests payment. I've been sitting in on a committee for the last several months, about how are we going to raise the money to do that?
The federal government is very interested in it, because they can't figure out how to solve this issue.
In the first place, some guy writing the regulation down in Olympia or in Salem, and not being on the actual land itself, can't possibly draft a regulation that makes sense on every piece of land. So the landowner has the regulator from the government coming on their land, starting to tell him how to manage it. He's been managing for five generations and this guy's maybe six months out of school. Well, they're not going to be very pleased with what they're told to do.
This effort we've just finished here is an effort to get everybody at the table, defining the problem and letting the individual landowner have a lot more authority about what he should do to manage the land in such a way that it doesn't adversely impact the environment. And compensating them where there are significant costs involved.
Q People are at polar opposites in Washington, D.C., when they talk about raising taxes or cutting programs. Would this collaborative process help?
A If they'd see themselves as part of a family, they'd begin to make progress. But if they see themselves as adversaries, as enemies, then you don't make any progress.
My experience of listening to farmers and environmentalists when they finally let their guard down, they are not nearly as far apart as they think they are. I've heard farmers say, "Well, if that's what you want us to do, that's not so hard." And here the environmentalists would say, "Well, I guess that's not really the problem, is it?"
In court or a Legislature, people put their positions up on the table. When they get in these collaborative processes, if you can get them to lower their voices and begin to listen, they put their interests on the table. And it's the interests that can be harmonized. The positions are almost by definition unharmonizable, if there's such a word. Once you see those interests come together, it really is remarkable.