Oversight Hearing titled: “Evaluating the Implementation of the Marine Mammal Protection Act and the Endangered Species Act.”
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House Natural Resources Subcommittee on Water, Wildlife and Fisheries U.S. House of Representatives
Follow its sittingsSpeaker 3
Thank you. Good morning, and thank you to all the witnesses for being here today. The ESA is popular and effective at preventing extinction. For over 50 years, the Endangered Species Act has prevented the extinction of over 99% of the species listed. Only 84% of Americans support the law.
It is a law of last resort. Species are listed as threatened or endangered once the best available science shows the species is at risk of extinction or, without intervention, will be at risk of extinction. There are claims that the Supreme Court's action overturning the Chevron deference gives new justification to roll back the ESA and Marine Mammal Protection Act, but that's not what the Loper Bright decision does. Loper recognizes the courts will have the final say on the single best meaning of a statutory provision, which honestly should be left to scientists to establish which species should be listed or delisted on the Endangered Species Act. The Endangered Species Act is already clear.
Congress's stated purpose of the ESA is to stop extinction and recover species. Courts have repeatedly noted these goals. The ESA sets up a straightforward science-based process for this. List, protect, recover, then delist. Congress has consistently underfunded ESA programs at federal agencies for four years, contributing to the conflicts over listing, permitting, and consultation.
The recent Trump administration actions firing tens of thousands of federal workers without any strategic analysis as to the effect on agencies to do consultation, approve permits, and recover species is irresponsible, and is another example of undermining the ability of government to do the work, then blaming federal agencies and those workers for not getting the job done. In fact, even Republicans have rightfully expressed concerns that permits won't be processed in a timely fashion because of what just happened. We are in a biodiversity crisis and need these core conservation laws to work. Recovered species are good for everyone, and we need to ensure that as endangered species recover and thrive, that they are delisted in a timely fashion. However, we should not throw the baby out with the bathwater and provide more loopholes for industry, and fewer guardrails to protect recovering species.
I look forward to this discussion today, and I yield back.
Speaker 4
Thank you, Chair Haggerman. Thank you to the witnesses for being here today for a very important hearing. The Endangered Species Act and the Marine Mammal Protection Act, while well intentioned and while having done some good things and have been produced success over the years, must be refocused to their original intent. These two laws are designed to recover listed species and protect marine mammals. They were not intended to be blunt instruments, weaponized against landowners, the energy sector, both traditional and new technologies, against the recreational and commercial fishing industries, against water users, and infrastructure projects.
These laws have been used to stop legitimate conservation efforts, including forced management to improve salmon populations on free flowing streams in tribal lands. The Supreme Court's decision, as chair Haggiman said, in Looper or Looper Brock Enterprises versus Raimundo, which overturned the federal court's deference to federal agencies' interpretation of broad laws like the ESA and the MMPA, highlights the responsibility this committee has to address the ambiguity of our current laws by clarifying the limits of their authority. The MMPA is intended to protect marine mammals by preventing the take of these species, which a statute defines as, quote, to harass, hunt, capture, or kill or attempt to harass, hunt, capture, or kill, end quote. While the law allows for the take of small numbers of marine mammals, the term small numbers is undefined and has created an unworkable process not just for offshore energy, but has also halted important fisheries management and coastal restoration work. Simply put, the ESA and MMPA are too vague and have given the US Fish and Wildlife Service and the National Marine Fisheries Service the ability to put forward sweeping rulemakings with the force of law that stray from Congress' original intent.
Last congress, this committee got the ball rolling on reforming the ESA. The biggest step forward was passing the ESA Amendments Act of 2024. This bill would have reauthorized and amended the ESA for the first time since 1988. The bill contained provisions that provided clarity on certain definitions, incentivized private landowners and states to invest in species conservation, and provided a much needed transparency in the decision making process. I'm looking forward to the committee examining both laws, as we work to make the federal permitting process more efficient and more effective.
I wanna thank the witnesses again for your time today and for all the members for your interest in these important issues, and I yield back.
Speaker 2
Thank you, Mr. Chairman. I now recognize ranking member Huffman for his opening statement.
Speaker 5
Thank you, madam chair. And, madam chair, thanks also for mentioning article one of the Constitution in your opening remarks. We were beginning to think that our republican friends didn't know about article one or maybe had forgotten about it, but that passing reference was the most meaningful affirmation of article one we've heard from the Republican majority in this congress, and maybe it's a start. So, in the month since Donald Trump was inaugurated, in addition to all of the chaos and illegality that has been the hallmark of this second Trump presidency and shredding article one of the constitution at every turn, the administration has waged an all out assault on bedrock environmental protections like the endangered species act and the marine mammal protection act, and the scientists and the public servants tasked with enforcing them. This committee should be doing its job, defending the separation of powers, article one, and holding the administration accountable for ignoring clear congressional directives.
Instead, natural resource Republicans are trying to change the subject while recycling these same tired policy ideas that they've been pushing for decades. Let's be clear. These laws are not just about wildlife. They protect clean air, clean water, and the natural systems that sustain us. When endangered species start blinking out, it's not just an ecological loss.
It's a warning sign of broader environmental collapse. And when Republicans try to gut these protections, they're not just putting wildlife at risk. They're putting people at risk. A few weeks ago, president Trump and his allies exploited the devastation of the Los Angeles wildfires to attack the endangered species act and falsely claim that they were shipping water to Southern California to fight fires. This week, committee Republicans are using the Supreme Court's Loper Bright ruling as an excuse to dismantle protections under the ESA and the MMPA.
Let's be clear about what Loper Bright actually did. It overturned the long-standing principle that courts should defer to agency interpretations of ambiguous statutes. It didn't repeal the ESA or the MMPA. It didn't strip these laws of their clear mandates, and it certainly didn't change the fact that Congress, this body, already directed agencies to rely on the best available science to protect endangered species and marine mammals. The question we should be asking is this: why do Republicans on this committee continue to attack the very laws designed to prevent extinction?
And the answer is simple. These laws spotlight inconvenient facts for certain powerful industries. Mining companies, the oil and gas industry, corporate polluters who would rather squeeze out a little more profit for themselves, no matter the cost to everyday folks and our planet. Now protecting wildlife and our environment means sometimes you have to say no. More often, you have to say do it differently.
But it also means holding industry accountable for habitat destruction, pollution, and climate impacts. Good environmental policy protects people. When polluters destroy ecosystems, fisheries collapse, putting fishermen, seafood industries, and coastal economies in jeopardy. When industry pollution wipes out pollinators like bees and butterflies, agriculture suffers, driving up food prices, and threatening food security for millions of people. The numbers speak for themselves.
1,000,000 species worldwide at risk of extinction. In the US, 40% of animals, 34% of plants are on the brink. 25% of marine mammal species are threatened with extinction due to human activities. The ESA works. 99% of listed species survive, and it's not just successful in saving iconic species like the bald eagle and the gray whale from vanishing forever.
It is a proven safeguard against ecological collapse. The MMPA works, restoring populations of humpback whales, sea otters, and manatees. These laws don't need fixing, especially not the kind of fix that our Republican colleagues are pushing, which is functionally a repeal. For those who put short-term profits over science, these laws can be inconvenient. And that is why we constantly hear these tired, partisan refrains from across the aisle to repeal and to weaken these laws.
Last congress, I sometimes triggered my colleagues across the aisle by calling them Team Extreme. The first month of the Trump administration, I've gotta say they've made you folks look moderate. We've gone from Team Extreme to Mad Max. We are running out of time. There is a biodiversity crisis right now.
This is the time to support and implement these important environmental laws, not to gut them. I yield back.
Speaker 2
Thank you. I will now introduce our panel of witnesses. Mister John Vecchione, senior litigation counsel at the New Civil Liberties Alliance in Arlington, Virginia. Mister Daniel Rolfe, professor of law at the Lewis and Clark Law School in Portland, Oregon. Mister Paul Wyland, partner at Nassiman LLP in Orange County, California.
And Mr. Parker Moore, principal at Beverage and Diamond PC in Washington, DC. Let me remind the witnesses that under committee rules, they must limit their oral statements to five minutes, but their entire statement will appear in the hearing record. To begin your testimony, please press the button on the microphone, and we are using timing lights. When you begin, the light will turn green. When you have one minute remaining, the light will turn yellow.
And at the end of five minutes, the light will turn red. And I will ask you to please complete your statement. I will also allow all witnesses to testify before the member's questioning begins. I now recognize mister Vecchioni for 5 minutes.
Speaker 6
Thank you, Chair Hagelman, Ranking Member Hoyle, and members of the subcommittee. Thank you so much for the opportunity to provide my views on the implications of our clients' victories in Loper Bright versus Raimondo and Relentless Inc. Versus the Department of Commerce. They were argued together to provide the Congress the opportunity to work its will, direct the executive branch, and, among other things, improve the implementation of the Marine Mammal Protection Act and the Endangered Species Act. I worked many years to overturn Chevron deference, as has my organization, the New Civil Liberties Alliance.
Now that the task has been accomplished, the congress can reassert itself as the founders believed it would and should set the course for law and policies of the federal government in protecting, exploiting, and managing the nation's natural resources. Since the momentous decision on 06/28/2024, I've been asked about the effect of the decision on administrative agencies and on lawmaking of the end of Chevron deference. Some commentators in the press have predicted the end of important environmental and social regulations merely because the agencies are no longer able to create ambiguities or, worse, silences, because they could fill silence with power that they hadn't been given, and then fill those ambiguities or silences with whatever regulations they like. This is not so. Since the creation of the Interstate Commerce Act of 1887 to address the regulatory challenges of the transcontinental railroads, administrative regulatory power has been exercised by Congress and affirmed by the courts, including the Supreme Court.
In 1946, the Congress passed, and President Harry Truman signed, the Administrative Procedure Act, the APA. When Chevron deference came along in 1984, Congress had been creating administrative agencies that made regulations covering huge swaths of American life, including securities, energy, the environment, and natural resources for over a hundred years. And Chevron was a case where, mister Doneger, I know him. He's the lawyer who brought it. He wanted to say that the law meant that the Reagan administration couldn't change in a way that was deemed better for industry.
And then the court said no. We're gonna defer to this agency, and if it's reasonable, you can go ahead. And, so, it was without at that time, they thought that Chevron deference was gonna hurt the environment, because of who the administration was. But, the court, Chief Justice Roberts' decision for the majority in Loper Bright and Relentless relied on the language of the APA to strike down Chevron deference. I and my organization believe the Constitution itself forbids Article Three courts from deferring to the interpretation of the law by the Article Two executive branch.
It should be understood the majority opinion relied on this congress's written will that, quote, courts must decide all relevant questions of law. The case does not limit the ability of Congress to enact statutes to regulate, nor does it profane constitutional delegation of authority to agencies. As Chief Justice Roberts said for the majority, quote, this is not to say that Congress cannot or does not confer discretionary authority on agencies. Congress may do so subject to constitutional limits, and it often has. The holding of the case is that courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.
Careful attention to the judgment of the executive branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation while ensuring the agency acts within it. But courts need not, and under the APA may not, defer to the agency's interpretation because the statute is ambiguous. And I am not going to say all my testimony, but I do want to, I do wanna emphasize something for this group. The court's Loper Bright decision, that I think will be useful to this committee, is that they did say, and they think, that 180-degree changes of the law, just because an administration changes, but the law stays the same, is a problem.
So there is gonna be a resistance to changing law when the statute doesn't change. And I really think that's the nub of what's going on here, and I think that's how we overturn Chevron deference. It was a scandal to the judicial mind that the statute stays the same, and then suddenly the regulation goes 180 degrees opposite. So, I will leave my written testimony. I've submitted it.
And the last thing I do wanna say, just for questioning, is that I read everyone else's testimony and son of a dove's tales. Mister Rolf's testimony says, hey. Those Trump administration regulations may not be okay now without Chevron. And, mister Wyland notes that the seventies were the heyday of environmental regulation. If those regulations were interpreted back then, putting Chevron aside, the courts may see that as consistent with the language then.
So change, without legislative action, is gonna be disfavored. Shay,
Speaker 2
That, Mr. Vecchione, I think that that's very good advice for the members to take. You'll see that people are going to be coming in and out of the hearing today, and that's because they have votes in other committee hearings. So it's not that they don't have a great interest in this subject. They do.
And, in fact, we're going to be addressing this in greater detail later today. But they do have to go to other committees and vote. So they will be back for questioning. Thank you for your patience. The chair now recognizes, mister Rolf, for five minutes of questioning or for his five minutes of testimony.
Excuse me.
Speaker 7
Thank you for the opportunity to address this subcommittee. In the wake of the Supreme Court's decision in Loper Bright, this morning, we've heard about supposed ambiguities in the Endangered Species Act. But the Supreme Court has examined this law and found it to be extremely clear. Indeed, the court emphasized that, quote, the plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction whatever the cost, close quote. Most Americans agreed with this emphatic goal fifty years ago, and most Americans agree today.
The Endangered Species Act has been very effective, as we've already heard, and 90% of the listed species are making progress toward recovery at the rate envisioned in their recovery plans. But it takes time, resources, and cooperation between many parties to recover species facing extinction and to restore their habitat. In just the past few weeks, however, we've seen actions that threaten to derail both species recovery efforts as well as slow down or even halt the decisions of many federal agencies, including permitting and other decision-making processes that affect the actions of landowners and businesses across the country. Haphazard mass layoffs and firings of federal employees, including those who manage the habitat of many listed species, will leave many recovery actions undone and habitat unprotected. Those sold as increasing government efficiency, these cuts are incredibly inefficient.
They save little money and will inevitably slow down the biological analyses and permitting that must take place before actions that affect listed species can move forward, including many energy-related priorities of the current administration. And there is no ambiguity in the Endangered Species Act or in court opinions that apply its clear terms as to what happens if such analyses and permitting are not completed. Actions simply cannot go forward. For example, the National Marine Fisheries Service has a court-ordered deadline to produce a new Section 7 Endangered Species Act biological opinion examining oil and gas leasing in the Gulf of Mexico by this coming May. Layoffs, firings, and fork-in-the-road offers are undoubtedly putting completion of this work, and with it, the future of Gulf oil and gas activities in doubt.
This Gulf case also illustrates another way the Endangered Species Act is unambiguous. Unless the agencies base their decisions and conclusions on the best science, a court will overturn them. This is what the Maryland District Court did when it found that nymphs ignored its own experts and gave oil and gas activities a green light based on rosy assumptions about the future risk of oil spills. Still, there are very likely ways that allow leasing and exploration to go forward with modest modifications to protect species such as rice's whales, which lost 20% of their population in the last big oil spill. However, it takes dedicated federal experts to chart such a path, and ongoing measures to fire or harass federal employees mean that these experts may be gone.
Finally, the Supreme Court's Loper Bright decision may well play an important role in the Endangered Species Act in the near future. The president's day one declaration of an energy emergency instructs agencies to rely on the ESA's emergency section seven consultation regulations for energy project permitting. It also calls for ongoing meetings of the endangered species committee, a body which has not convened for decades, to hand out exemptions from the ESA's protections. However, in Loper Bright, as my colleague explained, the Supreme Court instructed federal courts to provide their own best reading of federal statutes rather than to defer to how federal agencies interpret the laws they implement. I'm quite confident that courts applying this standard would have little difficulty in overturning agency actions consistent with the obviously flawed interpretation of the ESA set forth in the president's declaration.
In the end, there may not be unanimity in this room about whether to continue to support the goals of the Endangered Species Act. However, no matter if one's goals are to recover listed species or to expedite federal permitting, it is also unambiguous that the actions of the executive branch and Elon Musk over the past few weeks will make both more difficult. Thank you, and I look forward to your questions.
Speaker 8
Good morning, subcommittee chair Hagelman and members of the committee. My name is Paul Wyland, and I am a partner in the Irvine, California office of Nassman LLP. Prior to my time at Nassman, I was in the law and policy section in the environment and natural resources division at the US Department of Justice. My testimony here is based on my experience working with federal wildlife agencies across the nation, including experience with the Marine Mammal Protection Act and the Endangered Species Act. My testimony represents my views as an individual and does not necessarily represent the views of my firm or my clients.
The MMPA and ESA were enacted during the 1970s, a decade that represents the high watermark for passage of environmental laws by Congress. Both laws reflect a high degree of optimism in Congress regarding the nation's ability to accomplish ambitious conservation goals while achieving other societal objectives. In addition, both laws lack specificity and have been subjected to limited congressional reauthorization. Consequently, the other branches of government, as my colleagues have already mentioned, have played an outsized role in the evolution of these laws. In implementing both the MMPA and ESA, the National Marine Fisheries Service and US Fish and Wildlife Service have frequently drifted from value-neutral assessment of information regarding the status of species and the effects of human activities on them to the application of the precautionary principle.
The essence of this principle as applied in the context of the two acts is the notion that one should draw all inferences in a manner that tends to underestimate the distribution and abundance of species, and overestimate the effects of myriad human actions on those species. In shorthand, the agencies have often referred to this precautionary approach as giving the benefit of the doubt to the species. The precautionary principle is ingrained in agency culture and reflected in a wide range of agency rules, guidance, and other activities. In Maine Lobsterman Association versus National Marine Fisheries Service, decided in 2023 by the United States Court of Appeals for the DC Circuit, the court held that it is a blunt tool, and that the precautionary approach can distort decision making, and therefore, that it's unlawful under the Endangered Species Act. In my written testimony, I described three examples of instances where agency reliance on the precautionary principle led to unlawful action.
One of those examples is the National Marine Fisheries Service vessel speed rule. NMFS adopted the initial vessel speed rule for right whales in 2008, imposing a speed limit of 10 knots on most vessels equal to or greater than 65 feet in length along much of the Eastern Seaboard to reduce the likelihood of collisions with right whales. In 2022, the agency proposed to expand the rule to vessels between 35 and 65 feet in length and to a more expansive geographic area that encompassed much of the Eastern Seaboard. In January 25, pardon me. In January 2025, the agency withdrew its proposed rule, but the 2008 rule remains in effect.
In the 2022 proposed rule, NIMs reported that between 2008 and 2022, there were five right whale vessel strikes involving vessels between 35 and 65 feet in length. During that same period of time, there were more than 5,100,000 offshore fishing trips along the Eastern Seaboard by vessels between 35 and 65 feet in length. These data demonstrate that the probability of the vessel between thirty-five and sixty-five feet in length operating on the Eastern Seaboard would strike a right whale is less than one in a million. The proposed rule exemplifies one circumstance in which the precautionary principle can result in an absurd outcome. That is when the regulation of a vast amount of human activity that causes no harm occurs for the purpose of curbing a minuscule amount of human activity that causes harm.
Even more problematic is a lack of legitimate basis in the MMPA or ESA for either rule. This is a top topic that Mister Moore deals with in detail in his written testimony. Nymphs in the fishery service do face substantial challenges as they implement the MMPA and ESA. But that is not grounds for giving the agencies a pass when their actions are premised on an approach to decision-making that puts a thumb on the scale rather than relying on the best available scientific information. Thank you for the opportunity to share my views.
I'm happy to answer any questions.
Speaker 2
Thank you, Wieland. I think that that's referred to as opportunity cost. I now recognize Mr. More for five minutes.
Speaker 9
Chair Hegeman, ranking member of Oil, and esteemed members of the subcommittee. Thank you for the opportunity to speak today. My name is Parker Moore. I'm an environmental attorney with Beveridge and Diamond and have over 20 years of experience advising on the Endangered Species Act and the Marine Mammal Protection Act. I'm here today to highlight two critical problems with the implementation of these important laws: regulatory overreach and conflicting permitting processes.
I wanna start with regulatory overreach. A striking example of this overreach involves the vessel speed rules, which NOAA fisheries or NMFS purportedly issued under section 112a of the Marine Mammal Protection Act and section 11f of the Endangered Species Act. As Mister Wheeland just explained, initially issued in 2008, these regulations impose a 10-knot speed limit on boats 65 feet or longer across vast areas of the Atlantic Ocean. NYMP says that it issued the vessel speed rule due to the potential for those boats to collide with an endangered North Atlantic right whale. In 2022, NIMP proposed expanding these rules to include boats as small as 35 feet and to extend the 10 knot speed limit to a much larger area of the ocean for up to seven months every year.
This proposal would have impacted more than 63,000 additional boats annually. The problem with this is twofold. First, is a lack of authority. Neither the Endangered Species Act nor the Marine Mammal Protection Act grants nymphs the power to develop or implement prophylactic regulations aimed at reducing the possibility that an already unlikely event like a whale collision might occur. In fact, over the past two decades, NHIM's has explicitly requested, and congress has considered several bills that specifically would grant NHIM's this power.
None of those bills passed. The second problem is the lack of a factual or scientific basis. The proposed expansion of the vessel speed rule to cover boats 35 to 65 feet was a solution in search of a problem. NIMP's own data showed that there is a far greater chance of a boat being struck by lightning than there is of a boat striking a right whale. For example, in the waters off South Carolina, there has been only one documented boat collision with a right whale ever.
That happened 15 years ago. It involved a boat longer than 65 feet, and NIMPS doesn't even know how fast that boat was traveling. The statistics are similar for the great majority of the Atlantic Coast. Fortunately, faced with bipartisan opposition and over 90,000 public comments, NIMs quietly withdrew the proposal last month. However, the original 2008 rule remains in place for boats longer than 65 feet, prohibiting them from traveling any faster than the speed of an average golf cart.
And there is every indication that NIMs will attempt to revive the expanded speed limit in the future. The second major implementation issue lies in the incompatible requirements between the ESA and the MMPA for authorizing incidental take. While both laws prohibit the unauthorized take of protected species, each offers pathways for permitting incidental species impacts. However, when a species is protected under both laws, these processes can become unworkable. Under the ESA, incidental take can be authorized with an incidental take statement for federally connected activities or with an incidental take permit for non-federal activities.
But if the species in question is a threatened or endangered marine mammal, those ESA authorizations are not available until the activity first receives a separate incidental take permit under the Marine Mammal Protection Act. That creates a huge problem because, at best, an MMPA permit often takes years to obtain. But in many cases, it takes forever, and that's because an MMPA permit is not available at all. This problem frequently arises with the Florida manatee. The manatee is an ESA-listed threatened species.
It also is a marine mammal. So before the Fish and Wildlife Service can issue an incident o take permit or an incident o take statement to an activity that may affect a manatee, that activity must first receive an MMPA permit, but that can't happen. The service has never taken the necessary regulatory steps that would allow it to issue an incident or take permit for the manatee under the MMPA. As a result, projects like marinas, boat ramps, and docks throughout the Southeast that may affect even a single manatee can never receive the necessary federal permits they require, and that cannot be what Congress intended. In conclusion, while these implementation problems are significant, they could easily be fixed with two straightforward statutory amendments, which I've provided in my written testimony.
These targeted reforms will realign federal agency implementation with congressional intent, reduce regulatory burden, and maintain strong protections for at-risk species. Thank you for considering my testimony. I'm happy to answer any questions.
Speaker 2
Thank you. I want to thank all of the witnesses for your incredibly helpful testimony, and I am now going to recognize members for five minutes each for their questions, and I'm going to begin with myself. Before that, I just want to make one point, which is that offshore wind farms or the impact of offshore wind farms on the North Atlantic right whale has been well documented. Yet politics prevents the Fish and Wildlife Service from acknowledging that, and instead they are misdirecting assets and resources towards going after things such as our fishing industry. And I think that epitomizes one of the primary problems with the ESA and the MMPA.
Mr. Vecchione, in your testimony you state that the shifting legal landscape of the last two years, culminating in low per bright relentless, now means that Congress can reassert itself. Low per bright is thus an administrative decision, and it is not a policy decision. What does that mean for Congress going forward?
Speaker 6
It means that you can't rely on a friend in the White House to fix a lot of problems by just changing the regulations. If you see a problem, Congress now has to address it. They can't, you know, Paul, I say that, one of the lawyers arguing this case told the court that sometimes congress is divided in two. If they think the guy in the White House is of their own party, they don't want to do anything because they'll just get the right outcome. And then if he's in the other party, they'll fight whatever anyone is doing.
Now Congress, if it sees a problem, is gonna have to address it because there's a very good chance, particularly when new things come along, that the courts won't allow the agencies to say this new thing is just like the old thing and to regulate it. So that's, in a nutshell, what I think is going on.
Speaker 2
Well, I think that as practitioners, we need to be better at our job. I think that we as members of Congress need to do more in terms of providing definitions, perhaps putting preambles on our acts. But we need to be writing legislation that is not vague and ambiguous so that we don't need to worry about the courts reinterpreting what we intend to do. Mr. Wyland, when the services are performing a Section seven consultation under the ESA, is it ever appropriate for them to pretend that an existing structure such as a dam does not exist?
Speaker 8
The short answer, chair, is that is no. It is not. But I will say it's more complicated under the consultation provisions as they've been interpreted in the Act. So the purpose of consultation is to analyze the effects of the proposed action on the listed species and if there's a designated critical habitat on its habitat. But that.
Speaker 8
Lot that requires differentiation between the environmental baseline for the species and the proposed action. So you have to look at what are the impacts from the action of the species and, separately, what is the environmental baseline. And the existence of the dam, for example, should be in the baseline and should not be considered part of the action. And so someone who's changing operations of the dam, for example, should not have to account for the presence of the dam during the consultation. That should be in the baseline.
In addition, I would say the preconsultation operations, let's say you're getting a FERC re-licensing. The pre-consultation operation should also be in the baseline. So you have the dam. You're operating a certain way. And what you're consulting on is your change to the operations.
And that's the extent of the effects of the action, as I see it. But I will say, in the case law and agency interpretation, these things are not as clear, and there are divergent views about this issue. And as a consequence of that, there are many baseline activities that get captured in the effects of the action. And the consequence of that is there are more jeopardy determinations than there need to be, and there are more requirements for minimization and mitigation based upon these baseline effects rather than the effects of the action.
Speaker 2
Well, fact, the past administration, they were notorious for failing for trying to exclude these structures like dams in the baseline, and therefore they were restricting more projects and limiting more projects and finding more jeopardy. And I think that is a problem, and I've experienced it for years working on the Platte River program as an example, where they literally ignored the dams that existed as part of the baseline and thereby created problems of trying to put together a program for the endangered and threatened species. Again, Mr. Wyland, another question. The MMPA authorization standards require the government to find that an action will have a, quote, negligible impact and effect on small numbers of a species or stock.
What does the small number standard really achieve?
Speaker 8
There's very little in the legislative history about that that I'm aware of. And so I would say because of the negligible impact standard, the addition of small numbers to that seems arguably redundant. And I would go back to comments that have already been made by my colleagues and by members of this committee. Then when all of these acts were passed in the seventies, it was contemplated there'll be regular reauthorization. Same with the Clean Air Act and Clean Water Act, and same with these others.
And during that period and into the eighties, there was a number of these acts, there were significant changes. For example, the Endangered Speeches Act of 1982. And that has essentially halted. And as a consequence, we are left with acts that are really being interpreted by agencies and by judges rather than congress going in and being able to revisit and clean those up. And I think it's unfair to fault congress in the seventies.
It was doing the best it could. But if you were to go to a doctor and they were to say, I'm gonna give you the same advice I would have given you in the seventies, you'd go to another doctor. Right? And so if congress can update the act, we'll all be better off for it.
Speaker 2
I think that that's excellent advice. And with that, my five minutes have expired. And so I am going to go to the representative magaziner for his five minutes of questioning. Thank you.
Speaker 11
Thank you, chair. And before I begin my prepared remarks, I just wanna respond to something that the chair said in her statement. Unlike in her state, we have offshore wind in my state. And we can tell you from experience that there has not been a single documented right whale death that can be tied to offshore wind. There have been whale deaths tied to fishing gear entanglements, to vessel strikes, not a single one tied to offshore wind.
And so we can have a conversation about what is appropriate for a vessel speed rule, where it should be imposed, and what size vessels should be included. That's a legitimate conversation to have, but it has to be a fact-based conversation. And I just remind everyone, there is far more seismic activity that happens with oil and gas drilling in The Gulf that impacts marine life than happens with offshore wind development. So, no, offshore wind has not been linked to right whale deaths, does not cause cancer, etc., etc. But listen, I'm here today to talk about another issue that I haven't heard any of my Republican colleagues raise so far.
We know that Endangered Species Act consultations can delay projects, but I haven't heard anyone talk about how the chaotic staffing cuts made by Elon Musk and his Doge interns are making the problem worse as we speak. Last week, more than 400 staff members at the Fish and Wildlife Service were fired by the children Elon Musk has put in charge of the federal government. And it has been reported that they are planning on firing 1,000 more at NOAA as early as this week. These are the agencies that list and delist endangered and threatened species, that draft recovery plans, and issue permits. And who is making these firing decisions?
Are they experts in fish and wildlife? No. Do they know anything about the permitting process? No. It is Elon Musk, an unelected intern sitting at a desk in Washington DC.
Unelected tech bros, none of whom know a thing about fish, wildlife, or permitting. So let me explain to them what these firings at Fish and Wildlife and NOAA mean. First, they create a backlog of endangered species list petitions to list and delist species. Species at risk of going extinct take longer to get protected, and species that are no longer at risk take longer to get delisted when you do not have the staffing to process these petitions. Second, firing staff at these agencies reduces their ability to issue permits.
Permits to allow important projects to proceed, including construction, infrastructure, forestry, agricultural projects, water research projects, and energy development. So we've talked a lot in this committee about permitting reform, and that is an important conversation to have. But be clear, you can reform all you want, but no one gets any permits to do anything if there is no staff available to process and approve those permits. Third, firing scientists at the Fish and Wildlife Service and the National Marine and Fishery Service hurts the animals on this planet that the Endangered Species Act was designed to protect. When experts are allowed to do their jobs, recovery efforts lead to vulnerable species bouncing back.
We've seen that with sea lions, gray wolves, and countless other examples. But when scientists who work on endangered species protection are fired, these species can go extinct waiting for the protections to arrive. So, mister Wolf, does firing staff indiscriminately at Fish and Wildlife and NOAA increase or decrease the processing backlog for petitions and permits?
Speaker 7
Of course, the findings that we've seen really decreases the capability of the agencies to go through the legally mandated processes in the Endangered Species Act and Marine Mammal Protection Act. And as I said in my remarks, courts are absolutely clear that unless federal agencies go through those statutorily mandated processes, courts will simply enjoin further federal agency actions that affect listed species in their protected habitat.
Speaker 11
Courts will err on the side of caution, so we could actually be slowing down development. We could slow down permitting by indiscriminately firing staff. And I just wanna make the point again about the process here, because they are not consulting with people on the ground. They are not consulting with the agencies themselves to say, hey, which positions may be expendable and which are not. This is literally a bunch of kids sitting behind computer screens who have no background at all in the subject matter, no background at all in permitting, just making decisions based on very low information, and it is incredibly disruptive.
So with that, I'm out of time, and I yield back.
Speaker 12
Thank you, madam chairwoman, and thank you to the witnesses for testifying before the committee today. As we look at the endangered species act, it's critical that we strike a balance protecting vulnerable species without imposing unnecessary regulations that harm local economies or infringe on private property rights. We must adopt a common-sense approach to streamline the permitting process and protect private property rights, ensuring that landowners are not penalized for their stewardship. It is also important that we don't allow the Endangered Species Act to become Hotel California, or once you arrive, you can never leave. At what point are the grizzly and the gray wolf populations going to be huntable again?
It is long past time to turn these decisions over to the states that know their own needs. Sportsmen and women are our country's best conservationists. Look no further than the National Wild Turkey Federation, who saved the wild turkey population through their efforts. Wild turkeys are thriving because hunters came together to find a solution. Or look at the work that Delta Waterfowl is doing protecting the populations of canvasbacks or the northern pintail.
If we stop burdens and overregulation by the federal government, states and groups like this could better manage the populations that they have proven they can. We should, as a federal government, be out of the business of conservation through feeling-based bureaucracy and allow states to deal with the issues they know better than we do. Mister Wyland, in your testimony, you discussed the harm caused by agencies imposing harsh regulations. How can we ensure that the implementation of the Endangered Species Act strikes a balance between protecting endangered species and minimizing the economic burdens it places on industries such as agriculture, energy, and construction?
Speaker 8
The most effective role congress can take, of course, is to reauthorize laws, as I suggested previously, and to write clear laws. And, as issues arise, whether it's with the executive branch or in the judicial branch, there's an opportunity. An example is my colleague, Mister Rolfe, made a reference to TVA versus Hill, a Supreme Court case from 1978. At the time of that case, the Endangered Speeches Act consultation provisions didn't have essentially a release valve. And so the question in the case was whether to stop a dam that was nearly completed.
And the court said, whatever the cost, as Mister Rolf alluded to, the dam had to be stopped. Now in response to that, in 1978, Congress promptly enacted amendments to provide a release valve for so-called God Squad or Endangered Species Committee provisions of the act. And it was very clear that was a response to the TVA versus Hill decision, the legislative history demonstrates that fact. And so I think when even the Supreme Court acts, there's an opportunity for this body to essentially rebalance the act as it's being interpreted. And, certainly, the same goes for the federal agencies.
Speaker 12
Thank you. Mister Moore, in your testimony, you describe your experience working with the Endangered Species Act and the Marine Mammal Protection Act. Given the unintended consequences the ESA has had on job creation in certain industries, what changes would you propose to ensure that conservation efforts do not come at the expense of American workers and economic growth?
Speaker 9
Thank you for that question. As mentioned a little bit earlier, there are two specific categories of amendments to both the Endangered Species Act and the Marine Mammal Protection Act that I recommend, and I've provided those amendments or suggested amendments in my written testimony. The short of it, though, is that eliminating the irreconcilable permitting hurdles between the two statutes is absolutely fundamental to allowing those two statutes to function in the way that Congress originally designed. As it currently stands, a project that may affect a threatened or endangered species can receive a permit under the ESA, while if that species also is a marine mammal, it cannot receive a permit under the Marine Mammal Protection Act. And because it can't receive that MMPA permit, it can't then receive the ESA permit, because the MMPA permit has to come first.
So relying on the statute that's intended to protect and conserve at-risk species is sufficient to provide the necessary protections to marine mammals. By the same token, there is a hurdle to section seven consultation under the Endangered Species Act, and that is the expansion of the scope of impacts that are taken into consideration, the environmental baseline, and a tendency of agencies and some federal courts to consider a species that's already listed as endangered to be at risk of extinction. Well, that's the very definition of endangered. And so the interpretation that a species is at risk of extinction during section seven consultation means that as a baseline condition, the agency cannot issue a single impact permit for that species. That needs to be removed.
You look at the environmental baseline and run from there. Thank you. Yield back. Thank.
Speaker 2
And we'd like witnesses who make recommendations of things that we could do better, legislatively. So thank you for that. The chair now recognizes Mr. Golden for five minutes of questioning.
Speaker 13
Thank you, madam chair. I'll direct this one to the panel, although I don't intend for all of you to answer it. So maybe quickly decide amongst yourselves, but just starting with.
Speaker 13
How does the Endangered Species Act and Marine Mammal Protection Act allow for a balancing between species protection alongside economic impacts on regulated industries and the impacted communities and people who support them and depend on?
Speaker 8
Alright. I'll start. So one thing is, you know, in spite of the decision in TVA versus Hill or even if one assumes that decision is still good law, the act does not neither act requires agencies to put blinders on to the impacts of their decisions. And so whether it's consultation under section seven or the insult take permitting provisions under section 10, in both cases, the agencies can consider the effects, for example, of mitigation, alternative mitigation on regulated industries. And so, with respect to fishing, for example, there may be technological fixes that are available or closures as options.
And one may be preferable to the other from a fishery perspective. And at times, I think the agencies are not creative in thinking of alternative regulatory mechanisms. A good example would be the vessel speed rule where now we have pretty advanced technologies that can be employed on boats to avoid collisions or to at least drastically minimize those occurring. And so there may be alternative regulatory mechanisms that are available, and there's nothing in those acts that precludes them. But the agencies need to be encouraged to evaluate those fully when they're looking.
Speaker 13
at just gave an example where they are not taking into account technology or alternatives. Can you give me an example where federal agencies have actually found that balance between conservation mandates with a need for practical or enforceable regulations that account for economic reality?
Speaker 8
I think in the context of the MMPA, for example, in the lobster fishery, the process that the fishery management council uses where it takes input from a wide variety of interests, including states and fishermen and conservationists, allows for proposals from states like Maine to do things like gear marking as one tool that can be used in order to assess the impacts of the fish of state specific fisheries or fisheries with different kinds of gear and to tailor mitigation in the future as a consequence of those. And, certainly, the National and Fisheries Service has shown an opening in the past to using those types of different alternatives. But, so I do think that there are many circumstances where they have done so.
Speaker 13
Do any of you have an example where Congress has played a role in modifying the ESA and MMPA as it's implemented? Any successful legislative adjustments to these laws that you viewed as positive?
Speaker 6
I have it in my testimony, so does, mister Wyland, which is after the TVA. I was I went to the little Tennessee River when I was a boy to canoe on it before it got dammed over. So I remember this very well. And, it was stopped by the Supreme Court, and a Democratic Congress and a Democratic president amended it so that the best, so to make it more scientific, aspects had to be taken over, and the DC circuit just recognized that recently in a case that's in my testimony. So what happened from the Supreme Court to the amendment in '78 that's in my testimony from that case will have a good example of that.
Speaker 7
Well, I would love to pick up on that because, indeed, congress did amend the statute after TVA versus Hill in 1978. It added the amendments allowing for exemptions to section seven of the Endangered Species Act. In fact, TVA is a great example. That big important dam actually went through the so-called god squad or extinction committee process, where the endangered species committee did indeed consider whether to exempt that dam. And it found that just completing the 5% of that dam that was remaining was not economical, produced zero economic benefit, with just 5% of the cost of the entire dam.
And so the endangered species committee unanimously did not grant that exemption. So it's a good illustration that there are very few absolute conflicts between protecting endangered species and going forward with pork bill projects like that.
Speaker 9
It is also a good example of how the nadir species act doesn't actually function that well when it comes to conserving at-risk species. And the reason it's a good example is because the snail darter, the species that was at issue at NTVA versus Hill, turned out it wasn't endangered in the first place. The fish and wild desserts listed the species under the understanding that the species occurred only in a very localized issue within the river. After further investigation and studies, it turns out that it was far more prevalent and existed in many more locations across the Southeast.
Speaker 2
The chair now recognizes mister Whitman for five minutes of questioning.
Speaker 15
Thank you, madam chairwoman. I'd like to thank our witnesses for joining us today. I wanna look at where we are today and what the new administration should do versus what the previous administration did in relation to the Marine Mammal Protection Act. And looking at how you look at the burden that these new regulations place on other uses there, and as we talked about trying to create that balance, mister Wyland, you talked about the element of assuring that there is a precautionary principle that's taking place, and what that is versus the scientific approach. You know, as I look at the precautionary approach, I see that wearing seatbelts can have an impact on the 40,000 deaths we have each year in auto accidents.
Also, see too that constructing levees is a precautionary approach against flooding. All those things make sense to me as far as the precautionary approach. Creating a regulation, though, based on a one in a million chance that a right whale gets struck by a vessel that's less than 35 feet doesn't appear to me to be logical and is in big imbalance with the things that we need to be doing to have thoughtful regulations. Last year, the Biden administration wanted to expand the Marine Mammal Protection Act to aquaculture, which is puzzling to me because when you have aquaculture, especially in areas where you don't have these large marine mammals, it just seems illogical to me. So, mister Wyland, I wanna ask you, can you discuss the concept of a precautionary measure and how we look at that in relation to the strong science that would look at how you should create policy.
And then give me your perspective on how that scientific approach should be pursued and how these determinations are made, not this existential precautionary approach that we saw in the previous administration?
Speaker 8
Thanks for the question. I think, so one of the challenges is because the precautionary approach is ingrained in agency culture at the National Marine Fisheries Service and Fish and Wildlife Service, it's integrated into the everyday workings of the agency staff. And it's a policy, really, a policy approach. And but it's very difficult, if not impossible, to distinguish it from science in decision-making. And I'll just give one example of this.
So agencies use models. They call them lifecycle models, quantitative models to understand the status and trends of species and the impacts of various activities on species. When they build these models, they have data that they build into them, but they also have to make assumptions because we don't have all the data we want. And it's those assumptions that frequently involve the use of a precautionary approach. An example with regard to the North Atlantic right whale is the model that was used when evaluating the right whale and the impacts of lobster fishery on a right whale assume that there's no natural mortality of right whales, that all mortality is caused by human activity.
And the consequence of that is that when you're allocating responsibility, it's all allocated between different human activities. And so in that circumstance, that's a precautionary approach built into the model. That's hidden when the model output comes out. Right? You got an estimate of how much, you know, vessel collisions are likely to cause harm to right whales, how much offshore wind, how much fisheries are.
And in each case, it's slightly inflated because there's no assumption that there is any natural mortality. And there are many examples of this. And the challenge with this is that I see the precautionary approach is something that should happen at a policy level, not at a staff line staff or science level, and it should be out in the open and not hidden. And so that's really where I think we need to have change in terms of how the agencies approach precaution.
Speaker 15
Another element too, we'd see regulations promulgated by analogy. A great example is in the Chesapeake Bay. We don't have large marine mammals in the Chesapeake Bay. No whales in the Chesapeake Bay. No manatees.
No sea otters there. You name it. And yet they wanted to put a restriction on tethered buoys for aquaculture operations. If you don't put a tethered buoy there, then you don't know where your cages are that have the oysters in there, which, by the way, are great biological filters for the bay, have shown to greatly improve water quality, yet this practice would essentially ban that. So to me, there's this separation of science and fact and decision making.
Mister, give me your perspective too on how you see that disconnect there and how those sorts of decisions can essentially put out a business, an industry that's having a great impact both economically and environmentally. Mister Wyland, let me do this. In respect for the other members that wanna question, if I can get you to submit your response to that in writing for the record, and I'll yield back the balance of my time.
Speaker 2
Wonderful. Thank you. The chair now recognizes Miss Alfred for her five minutes of questioning.
Speaker 1
Thank you very much, madam chair, and thank you to the witnesses. First, let me just say it warms my heart to hear you talk about availing yourselves of the judiciary branch when you disagree with the executive branch. And when you disagree with the ruling of the judiciary, you come to the legislative branch to seek a remedy. That's exactly how our framers pointed, framed out our system of government. So I wanna respond just to some assertions made by the witnesses and during this hearing about the need to throw this idea back to the states.
And just like clean air and clean water, or polluted air, polluted water, wildlife doesn't tend to respect arbitrary political boundaries. And so when we talk about the stewardship of our most vulnerable wildlife, I'm not sure that a patchwork approach from the states would be the right solution. And to the witness's point, I don't think it would provide any kind of certainty for the business community either by going about it in that manner. I do wanna point out that when the bill the ESA was passed and was challenged in court, SCOTUS and actually chief justice Warren Burger, who was a president Nixon appointee, said that it was the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. I'm gonna highlight that word comprehensive because I think it's important here.
And I wanna drill down on this idea about best available science being not certain in all cases. I think when we talk about much of the body of the work of this committee, best available science is important because the inputs are going to change on a near daily basis. Inputs of weather, inputs of pollution, inputs of overdevelopment are going to have an impact on the endangered species, the marine mammals that we're discussing here. And so for mister Rolf, could you we've talked a little bit about maybe where some people feel like the two laws that we're talking about have broken down. Can you talk a little bit about the success stories that we've also seen here and how best available science actually informed the success stories brought about by these pieces of legislation?
Speaker 7
Sure. I mean, if you look really, we can talk about examples all day long, and there are many examples. Salmon and steelhead in the Columbia River Basin, for example, are at least beginning a road to recovery because of protections of the Endangered Species Act that have started to address problems with those species, change federal dam operations, for example, to be more conducive to the needs of those species. And the rights of Indian tribes in the Northwest to take fish at all their usual and accustomed places. But I think something we haven't talked much about is the fact that if you look writ large, the Endangered Species Act has been tremendously successful.
We talk about all of these, a few high profile instances. But if you look across the country, there are thousands of informal and formal consultations under the section seven process of the Endangered Species Act, where federal agencies have to consult with the National Marine Fisheries Service or the Fish and Wildlife Service. In almost all of those instances, those consultations either end informally or with a biological opinion saying action can proceed. Or in the rare cases where there's actually a Jeopardy! Biological opinion, it's been decades that a Jeopardy!
Biological opinion has been issued without reasonable and prudent alternatives that allow the agency action to go forward, essentially as planned, that is economically and legally feasible. And so the Endangered Species Act really doesn't stand in the way of any development. At the most, it generally imposes modest restrictions to minimize the take of endangered species, and ensure that their continued existence is not jeopardized.
Speaker 1
Thank you very much for that illumination. And it's always easy to highlight the worst-case scenarios, but not always the success stories and how.
Speaker 1
I very much appreciate that. We've talked a lot about private industry and some challenges to growth there from these two bills. But I also wanna point out, serving on the armed services committee as well, that there are success stories even within the DOD of these two laws actually helping with readiness, actually helping with installation security. And, in fact, you know, at least a number of the former joint chiefs of staff across multiple administrations have talked about the actually greatest threat to readiness and national security is not either of these laws, but it's actually the threat of climate change. And I hope that we can begin to discuss some of those impacts in this committee as well.
And with that, I yield my time. Thank you, madam chair.
Speaker 2
Thank you. The chair now recognizes Mr. Bentz for five minutes of questioning.
Speaker 16
Thank you, madam chair, and thank you all for being here. Professor Rolfe, the phrase you used was no matter what the cost, and I think that was indeed in the Supreme Court opinion from years and years ago. But I'll share a couple of costs with you. In Oregon, the spotted frog estimate for recovery is 2,700,000,000. That's the number from ODFW, Oregon Department of Fish and Wildlife.
On the four Lower Snake River dams, there's been an effort to have them breached. I don't know if you've been part of the litigation or not. It's been going on for a very long time. But the cost of replacing the 3,000 megawatts of peak peaking power that those dams provide would be somewhere between 3 to 12,000,000,000 dollars. That's to replace the generation capacity.
It's not to take into account a loss of those facilities, which should also be in the billions. And so this is going to be justified by the ESA. There's no other justification for doing it, and particularly when we do lose navigation. So the phrase, no matter the cost, do you take the position then that we should be putting 2,700,000,000 into the recovery of the spotted frog and that we should be spending somewhere between, I'm going to say, low of $6,000,000,000 and a high of 20, to take out those dams?
Speaker 7
Well, congressman, I'm not sure where you get your figures, but I'm quite confident that the stave organ could recover spotted frogs for a fraction of those billions of dollars. The Oregon Department of Fish and Wildlife hasn't spent that much money, probably in its entire existence. As far as the Lower Snake River dams go, as you well know, there are studies underway investigating the replacement of the energy output of those four Lower Snake River dams with renewable energy. And in fact, there are efforts underway now, spearheaded by the tribes, to develop renewable energy resources, which would provide the region with clean energy to replace that of the dams, allow those dams to be decommissioned, and to fulfill The United States treaty obligations to Northwest tribes to allow rural communities to thrive. Yeah. Forgive me for covert surgeries.
Speaker 16
But, you know, you it's irksome, that you would gloss over the cost. And the money that is going to the tribes was done so, in my opinion. And based on the hearing we held up in Canada where 400 people showed up, this committee field hearing, to oppose exactly what you're saying. The $400,000,000 or whatever it is that's going to the tribes, you're kinda glossing over that part. You're also glossing over the part that those dams provide stable power, and that solar, which they're going to be using, is intermittent.
And thus, they need about three times the amount until we get a battery that works of solar. Anyway, I do wanna go back to one thing, and it is what I call legal extortion under the guise of mitigation. And what we have then is the ODFNW or somebody else coming in and saying, you know what? You don't have to comply if you mitigate. If you go buy a ranch and give it to us, then that will offset the loss of whatever.
Oh, I know, right of way for a power line. This extraordinary device is terrible for all kinds of reasons. My question to you is, how do we appropriately measure the amount of proper mitigation?
Speaker 7
Under the Endangered Species Act, for example, the statute requires agencies to use the best available science in all cases. And so when agencies, in the rare instances, for example, when an agency finds jeopardy to the continued existence of a listed species, which, as I indicated, is extremely rare, in those cases, the agency has to prescribe reasonable.
Speaker 16
Interrupt again. Extremely rare. I don't know how many thousands of people lost their jobs in Oregon because of the spotted owl. Literally, I don't. It's literally tens of thousands of people.
You say extremely rare. It doesn't have to be anything other than rare when it has that kind of impact, when it does come into play. I don't know why you say that when the consequences are so incredibly negative. So please, when you try to minimize the true consequence, please call out the damage being done, and I yield back.
Speaker 2
Thank you, and excellent points. The chair now recognizes mister So for five minutes of question.
Speaker 17
Thank you, madam chair. You know, the hearing started out with real promise. I was thinking congress gonna reassert ourselves and stop unelected bureaucrats from stifling the will of the people. I was like, okay. We're gonna talk about the Doge disaster today.
But, actually, we're talking about well-meaning federal experts trying to stop pollution, protect our environment, and protect endangered species, while an unelected billionaire takes a chainsaw to the federal workforce with zero strategy. And you all are doing nothing about it. I just wanna start with a little Doge top five. We saw lies about millions of people collecting Social Security. That wasn't true.
That fraudulently, having to roll back from 80 billion to 7,000,000,000, all these alleged savings, including the top five, had to be pulled down. And then we see all these folks have to be rehired, like nuclear scientists and folks who are bird flu experts. And the guy who has the keys to Yosemite National Park, who apparently was fired as well, which is nuts, by the way. But we're talking about a thousand national park rangers doing amazing work, 120 national wildlife refuge employees, a 5% cut. And that was after a 31% reduction over the past fifteen years.
In Florida, we have 29 national wildlife refuges, including Cape Canaveral, Everglades, Ocala National Forest, Pelican Island, and Indian River Lagoon. We saw 16 Florida employees fired just recently. And the only thing I can make of it, of these mass firings, is that they have one commonality. These are probationary employees. They could be experts.
They could be the top managers. They could be the first-time employees. But all of them are in the government for one to three years, and they don't have rights yet. And so that's why we've had to rehire some of these nuclear scientists and bird flu experts. And, again, the guy with the only keys to Yosemite National Park who was fired for some reason.
Mister Rolf, what is this gonna mean as we're trying to work on the Kissimmee River, making it a wild and scenic river, and, you know, protecting the Everglades and some of these other key things we're working on? What do these cuts mean to these types of efforts?
Speaker 7
Obviously, actions just simply can't take place without people carrying them out. And especially in the Endangered Species Marine Mammal Protection Act context, we need expert scientists who know what they're doing and can, you know, we talk about balance or trying to find ways that actions to go can go forward. Economic actions can go forward while we protect endangered species. Well, doing so requires expertise, and we're losing that expertise. I had a Fish and Wildlife Service special agent come and speak to my wildlife law class on Monday.
He puts his life on the line to go after the bad guys who are importing and exporting endangered species parts. People from his agency are being randomly fired. He's getting emails saying, justify what you did last week. The morale of those agencies is in the tubes, and offices are empty. We simply can't keep going like this.
And I think, what I've heard here today is absolutely correct. Congress needs to do its job and make sure that the expenditures that are appropriated to run these agencies and make all of this work can actually do their jobs.
Speaker 17
And I appreciate that. You know, one of the common things in Florida, we have a lot of these areas where we're protecting things like the amenity and scrub jay, the snail kite, some of these others. You know, these are some great areas with ranches or other farmland with national parks, and they're some of the top recreation places in Central Florida. We have massive bass tournaments on some of these lakes, and we have folks come in from all over the nation. We have folks with hunting leases in and around these lands.
The thing that isn't highlighted a lot is that the Endangered Species Act allows us to help protect some of the best recreational land and local ranches in Florida. And it's stopped this of condos and suburbs out to the hinterlands of Central Florida. And so it's not an either or. This is how we preserve some of the best lands for recreation, for agriculture, for species, and for a water supply that's in great danger, and something we have to keep in mind as we're looking at this. And I yield back.
Speaker 2
Thank you. The chair now recognizes Chairman Westerman for five minutes of questioning.
Speaker 4
Thank you, Chair Haggerman. And, again, thank you to the witnesses for being here. Mister Moore, we often hear about the difficulties of the ESA section seven consultation process. And a major part of that concern revolves around the scope with which the agencies look at a proposed action. In your experience, has US Fish and Wildlife and National Marine Fisheries looked outside the scope of a proposed action during a consultation and, therefore, prolonged the whole consultation process and increased cost for project components?
Speaker 9
It's a tough question. It's, the answer to that is it depends. And that's one of the things about working with the services, is it depends on which office you're working with. And that's one of the difficult challenges in working under the species protection laws is that there's no uniformity from place to place. In general, you know, they look at the action area when they're when you're going through section seven consultation.
Action area is supposed to be the extent to which any environmental effect from the proposed action could occur. Traditionally, if you're looking at an impact to a waterway from construction activity, you look at in stream construction, you look at activities that take place outside of the water as well, including sedimentation that could enter into the waterway. And the services originally would look at the reasonable distance in which sediment would travel. More recently, what's happened is that through actions of some within the services and more frequently with some of the federal courts, they've required you to go much further. And so rather than looking at, you know, a couple of 100 yards in which sediment might travel before it disperses or dilutes, you're looking at 30 or 40 miles downstream, which causes the impacts analysis to sweep in every single species that occurs there even though there's no remote potential for that species to be impacted.
The result of that is that you sweep in an entire suite of additional species that have to be analyzed, which makes the job more complicated, which causes more time and more money, and it stretches the services' resources to an even greater extent, which doesn't allow them to do the job that they've been tasked with doing for other projects. So, yes, it's kind of a compounding effect that happens, and it all comes back to what is actually the impact of a project. And it's not 30 or 40 miles from the location where it occurs.
Speaker 4
But it does sound like it can be a complicated process. Do you have recommendations on how to improve that process where it does, for lack of a better word, use common sense when looking at one of these actions?
Speaker 9
Absolutely. I mean, the science is the science. It is not something that courts are in a position to interpret. It's not something that opponent groups are in a position to say what is the best science. Fish and Wildlife Service, in particular, for a long time recognized the bounds that a traditional impact would expand or extend.
That's been replaced with the opinions of various individuals that have caused, you know, courts and some within the Fish and Wildlife Service to broaden their interpretations. Establishing something more uniform for a typical type of impact, the distance that extends the scope of the actual effects would really streamline the process.
Speaker 4
Thank you, Mr. Wyland. I've used more time on that, but I think we got some good information on it. But I was wanting to ask you about the, you you're using the phrase cognitive bias to describe US Fish and Wildlife mentality towards the bone cave harvestment species. Could you elaborate on what you meant by that?
Speaker 8
Sure. Happy to do so. So cognitive bias is essentially where there's a systematic bias in one's thinking away from rational thinking, and they're prevalent in everybody in society. It's just the way we work. But in the conservation context, it frequently comes up.
For example, two examples are, well, let me start with confirmation bias. And confirmation bias is just the idea that once you have a set idea, that you're going to view any information that comes in, in a way that confirms that idea in a way that is favorable and that disputes that idea in a way that is not. So, for example, with regard to the bone cave harvestmen, if you decide that it's endangered and that part of the reason it's endangered is because it lives in these subterranean areas, but that they could be affected by surface activity like development of projects, that you will continue to be concerned about that surface activity and continue to think the species is endangered even when evidence to the contrary exists over decades of time when you find it more common and able to withstand those surface impacts.
Speaker 4
Thank you. And we're out of time, and we'll submit some more questions for the record. Thank you, Chair Hagan.
Speaker 2
Thank you, Mr. Chairman. The chair now recognizes Miss Brownlee for five minutes of questioning.
Speaker 18
Thank you, madam chair, and thank you to the panel for being here. We talked a lot today already about how we really truly rely on these expert agencies like Fish and Wildlife and marine mammal, excuse me, the National Marine Fisheries Services. Professor Rolf, can you talk a little bit about the impacts of underfunding these two critical agencies? I think, you know, you were saying we need the money and we need to spend it and we need to execute what we have. But I think, at least in my opinion, I think we're sorely underfunded in terms of, you know, our goal of climate and protecting biodiversity and protecting species.
Speaker 7
Certainly. You know, some criticize the Endangered Species Act, for example, for what they see as the slow pace of species recovery. As I indicated in my opening remarks, most species are actually on track with the timing of their recovery plan, toward achieving recovery. But it's amazing that they are actually because recovery measures are so underfunded by Congress. We're underinvesting in precisely the job that we've given to the Fish and Wildlife Service and the National Marine Fisheries Service to recover species.
And then some people complain about that. So if we actually adequately funded those species, or those species' recovery efforts, we would be recovering species and removing them from the list much more quickly. A member also talked about the states. And, actually, the states could have a tremendous role in preventing more species from becoming threatened or endangered. That would be a wonderful thing for the states to do.
And especially when people in those states complain about the Endangered Species Act, sure, prevent species from becoming endangered. But those states' fish and wildlife agencies have very little funding as well. They spend it all on species that are hunted or fished, and not on non-game species that desperately need conservation. The recovering America's Wildlife Act was not passed by Congress. That would have been a tremendous investment in the states for them to use their local knowledge to protect species before they need to be listed as threatened or endangered.
Speaker 18
Thank you for that. And, you talked a little, you just mentioned states. Is there anything more that we need to know from you in terms of, you know, if we transferred authority away from the federal agencies, if we transferred those authorities to the states, and what the impacts might be. You just talked about what states could be doing, with the lack of the federal agencies oversight.
Speaker 7
Sure. Well, of course, as I just noted, many species, many states lack the resources to manage the vast number of species within those states. So those agencies would have very little to do because they'd say, we just don't have the resources to do it. But, also, threatening endangered species move around. They occur throughout the country.
And so that those uniform protection standards and management standards that are provided by the Endangered Species Act to facilitate their recovery. In fact, speeds their recovery with those national resources as well as those national standards.
Speaker 18
Thank you. And, last, we, you know, we've talked a lot today too about, you know, the balance of economic interests and environmental interests. And, can you speak a little bit more to your perception and what you see in terms of the economic impacts? Folks on the other side of the aisle continue to say there those impacts are very, very significant. Can you talk a little bit more about how you see it?
Speaker 7
Sure. I think it's really unfortunate that we oftentimes get into a species versus people kind of situation. So the president's proclamation about California water was saying, put people over fish. It's absolutely a false dichotomy.
Speaker 7
It turns out that people need water just like fish. So when we look at the management of the Bay Delta system in the San Joaquin and Sacramento Rivers in California, great example. Guess what? Water needs to flow down that system for fish, salmon, as well as for fish like delta smelt. But water needs to flow through the system to do things like prevent saltwater intrusion from the ocean, that swamps the water delivery systems for millions of people.
So when we actually make ecosystems work better for listed species, it helps people, and it helps our economy.
Speaker 2
Thank you. The chair now recognizes Mister Limalfa for five minutes of questioning.
Speaker 19
Oh, I'm sure glad we swayed into water in California, you know, during that, and you talk about that Bay Delta issue there where I can show you the stats where 29,000,000 acre feet during a 15 month period, a little over a year ago that in the time the snapshot. 29,000,000 acre-feet entered the Delta, and 22,000,000 acre-feet went out in that period. And people got to capture only a little bit of that water. And even then, when you do, the water is stored behind dams. It has to be let out only for maintaining the temperature of 1 degree cooler in a river and is unavailable to agriculture, which is being devastated in San Joaquin Valley.
And the agriculture in that area would be thriving more so if you could have the groundwater recharge for the subsidence they're worried about under what's called the sigma law. But we can't get there, so we don't get to run the pumps except for 40% of the capacity to fill the reservoirs. It goes on and on. So, and it's interesting to hear in committee today that the Endangered Species Act really has no price. And I also hear there's no limit, and that's what it more feels like for farmers and ranchers and timber people and miners that need to mine the products if we're gonna electrify everything in this country.
But, let me narrow it back down to a question here. Mister Wylan, I wanted to ask you about, we have great concerns about what's going on at one of the agencies at NIMFS, it's probably across the board at many others, that the staff there will place mandates on infrastructure products that would have billions of dollars in direct or indirect economic impact and are able to do so with literal no approval from political appointees above them or us in Congress. So giving mid-level personnel this amount of authority without accountability to Congress, as we're accountable to the people, it seems to me like it's a real recipe for disaster since some people don't care what any of this costs on recovering a species. And then look at the ratio of recovered species on this graph I have here. 1,732 are listed, and 11 have gone extinct during that time.
21 were delisted due to a data error. So 57 out of that 1732 have been recovered by whatever criteria. So when we give midlevel personnel this amount of authority to name these conditions at no price, what do you what's your experience with this? What do you how do you think that's looked in the, you know, we're not unfortunately, we're not made out of money. How does this look in modern day decision making?
Speaker 8
Well, from the perspective of the regulated community, everybody knows they really prefer predictiveness and stability. And so one of the challenges that mister Parker alluded to is that there's a lot of diversity in the individual cultures. So, for example, no big surprise that in California, the regulators can be more aggressive than some other parts of the country, and more difficult to work with. Part of that has to do with the agencies themselves, and there's no reason that at NIMs and Commerce and Interior with Professional Eye Service, they can't exercise authority, and they can try and create uniformity. And there's value.
Speaker 19
But there seems to be no limit on the price with them. They don't care how much it costs, it seems.
Speaker 8
I agree that one of the challenges is from a common occurrence I see in California is the view of agency personnel that their job is to protect the species rather than implement the acts. And those are different, and they're only slightly different, but importantly different. Right? Because if you look at the axe as a whole, they do contain limitations on their ability to do that. And so I think that there are, like, as I mentioned, there are staff that understand that.
Speaker 19
They're, I'm gonna get to another question on top of this too. Thank you. Sorry about that. We have in the northern part of my district and Mister Bentz's district as well, a rampant wolf population is devastating livestock there. And so I guess I'd like to ask panelists, at a recent hearing up there in the North, one of the questions posed to the personnel from the government was, what is the right amount of wolves now?
At what number do we have that we consider the wolf recovered? And how do we reach the goal? Or is there actually a goal where you just keep moving the goalposts around? So you wanna take a stab at that, Mr. Rolf?
Speaker 7
Sure. The statute specifies that a threatened species is one that is endangered, in danger of extinction throughout all or a significant portion of its range, and that decision should be based solely on science. So we should look to the science to determine the distribution.
Speaker 19
What does the science say on how many wolves we have until we're, you know, hit the mark? It's the goal. Especially in Northern California, there are gazillion of them in the Upper Midwest. How many gray wolves do we need in Northern California to hit the mark?
Speaker 7
Actually, if you look at the genetic requirements for a functional wolf population, we're not there.
Speaker 2
We're going to have, we're out of time. I'm gonna have to go on to the next questioner and I call on Ms. Dingle for her five minutes of questions.
Speaker 20
Thank you. And I have great respect for my friend from California. And I would say that a lot of us do care about the cost of the programs. But I'm going to go back to a famous Benjamin Franklin quote: An ounce of prevention is worth a pound of cure. So I think we need to be investing more to keep some of these issues.
But as co-chair of the Endangered Species Act caucus, I remain committed to preserving the mission of the Endangered Species Act. For over five decades, the Endangered Species Act, or ESA, has been our nation's most successful tool for protecting America's imperiled wildlife. It has prevented the extinction of some of our most beloved animals, like the bald eagle, the grizzly bear, the Florida manatee, and many more. And as this country is battling the impacts of climate change from coastal flooding to wildfires, the protections from the ESA are more critical than ever, and we've got to remain committed to preserving them. Healthier wildlife populations lead to healthier ecosystems, which result in stronger shorelines, less intense wildfires, enhanced water quality, and fewer pests.
Studies show that 99% of species listed under the ESA have avoided extinction. Let me repeat that. 99%. Yet today, despite its successes, we continue to see attempts to strip it at the ESA of its provisions, making it harder to protect wildlife. Last Congress Committee Republicans introduced CRAs to delist imperiled species and propose the ES Amendments Act of 2024.
This bill would delay new listings while fast-tracking removals and narrowly redefine key terms to limit the ES's reach. Currently there are 1,300, about 1,300 endangered or threatened species in the United States. And I want to see these species delisted. He was talking about the wolf, the gray wolf. We're getting there.
But the best proven path forward is to invest in their recovery. The chairman likes to say, build it and they will come, and I agree. That's why I remain committed to passing legislation like the Recovery in America's Wildlife Act, RAWA. It's been a top priority unknown for many of us, for sportsmen, conservationists, hunters. RAWA will help promote and enhance our nation's conservation efforts by proactively investing in state efforts to prevent at-risk wildlife from becoming endangered in the first place.
And I'm hopeful I can work with my colleagues in this committee this year. Will reintroduce the bipartisan legislation and get it done. But in the meantime, Mr. Rolf, it's important we continue to strongly support the ESA to ensure species that are already in decline. And that includes identifying vulnerable species early.
Mr. Rolf, how is it that species get listed so late in the process, making decisions increasingly difficult for everyone involved?
Speaker 7
Well, one of the problems, Representative Dingell, and I certainly honor your family's legacy with the Endangered Species Act, one of the problems is that the agencies that are tasked with making listing decisions for those species are oftentimes well underfunded. And so there's a long list of species that the agencies have determined warrant protection, as threatened or endangered, but their listing is precluded by higher priority species that the agencies are working on because of the agency's limited resources. And in fact, Congress amended the statute to allow that sort of parking place for species that deserve listing, but the agencies simply don't have the resources to list them in a timely fashion. So better and more resources to the Fish and Wildlife Service and National Marine Fisheries Service could allow them to list species earlier, when recovering them is easier.
Speaker 20
So in thirty-five seconds, how will proposed budget cuts in workforce fire crews impact recovery prospects for species?
Speaker 7
What we're seeing going on, with a loss of federal expertise, is going to be devastating for not only species recovery, but, as I noted, for those agencies' ability to do the work they need to do to even allow permits for other actions to go forward.
Speaker 20
Thank you. I just hope that if we want to delist species, we need to invest in the recovery. I thank you, Madam Chair, and yield.
Speaker 10
Well, thank you, madam chair. I've learned a lot about things today in the hearing, especially I didn't know that Yellowstone or that Yosemite Park must be closed because there was one guy who had a key, and now we can't get it open. Oh, wait. Maybe there is somebody else who could open that. Look.
It's important to me that state and federal partners are responsible managers of the species. And Colorado Parks and Wildlife, my state management agency, has in the past done a pretty good job of letting science guide its management. As an example, the Colorado bighorn sheep has never been listed under the ESA due to the state's management efforts. And as an avid hunter, I'm proud to have directly contributed to the conservation as I purchased tags for those bighorn sheep for 20 years for a chance to hunt a bighorn sheep. It's currently mounted in my office, and I'd love to have anyone come by if you like.
Hunters play a critical role in species management and preserving state and public lands, as portions of hunting licenses often fund state conservation efforts. Congress uses the term, by the way, best available science several times in ESA and MMPA statutes to guide the direction of fish and wildlife and NMFS in the conservation of the species. To put a species under the ESA, Fish and Wildlife must use the best available science and commercial data to list, delist, or reclassify a species. For the gray wolf, Fish and Wildlife has made numerous attempts to delist the species under both Republican and Democrat administrations, as the population has exceeded its recovery goals, but we haven't had success in that delisting. Instead, fish and wildlife has had to face serial litigants over every attempt, claiming they didn't use the best available science when moving forward with decisions to delist the gray wolf.
Yet groups like the Alliance for the Wild Rockies, Wild Earth Guardians, and Center for Biological Diversity that exploit the best science requirements in the ESA turn around and push for gray wolf reintroduction to be included on the Colorado ballot in 2020. So the Center for Biological Diversity profited over $1,800,000 in FY 23 from lawsuits at the federal government related to NEPA and ESA. Madam chair, I ask unanimous consent to insert this letter to Governor Polis from September 2022 signed by the Alliance for the Wild Rockies, Wild Earth Guardians, and Center for Biological Diversity, and others to reintroduce wolves to Colorado into the record. Sort of. Rather than letting science and data guide the reintroduction of the gray wolf in Colorado, these groups pushed to mandate reintroduction and relied on ballot-box biology, leaving little flexibility in the reintroduction program for Colorado Parks and Wildlife.
Coloradans who didn't want wolves in the first place now have to contend with them living in their backyards because people in Denver and along the Front Range voted to put wolves in someone else's backyard on the Western Slope. It's clear that environmental groups use the ESA as a weapon against project development to stifle innovation and to cherry-pick science to adhere to their feelings about species management. Mister Moore, we have continually seen serial litigants exploit the term best available science in the ESA by selectively choosing different factors, sometimes even administrative factors, to justify litigation on species such as the gray wolf. Do you see in your work instances of how this impacts agency decision making, decision making to the detriment of species recovery?
Speaker 9
Without question. The tactics that are used frequently by the environmental groups, particularly the wildlife environmental groups, are an absolute detriment to species recovery and the implementation of both the Marine Mammal Protection Act and the Endangered Species Act. One of the tactics that is in addition to the parade of sue and settle lawsuits that they use to fund their war chests. More recently, has been to insert themselves in the section seven consultation process. That's a process that is not designed, does not contemplate, and does not authorize the participation by anyone except for the federal agency and the applicant for the permit that's being sought.
They have done an in round that process, however, by using public documents such as, public dockets such as the FERC docket to dump tens of thousands, or more pages of immaterial science on the agencies, at the eleventh hour before the agency is getting ready to make a decision and then claim that the decision that the agency made was not based on the best available science that they injected into the record. Use that to sue, get the attorney's fees when they win, and then use those fees to sue again. So, absolutely, it is a process that is broken. It was never intended to function that way, and it's something that needs to be fixed.
Speaker 2
Thank you. The chair now recognizes Mr. Minh for five minutes of questioning.
Speaker 14
Thank chair, thank you, chair Haggerman, and also the ranking member Hoyle. I appreciate today's hearing. I wanna first recognize and thank Mister Paul Wyland for traveling all the way to DC. C. Mister Wyland is a constituent of mine, and I appreciate you brought some good California weather out here.
So it's very nice and warm outside. So my district's in the heart of Orange County. I'm sure Paul could tell you all it's home to a lot of beautiful outdoor spaces that are habitats for a lot of endangered and rare species. And, instead of talking about solutions to address the biodiversity crisis that we're clearly facing, we've been hearing today a lot of mischaracterizations and half-truths about foundational environmental protections that have served for decades as the last line of defense for many of our species. Now some folks want us to believe that in the aftermath of the Supreme Court's Loper Bright ruling, which ended Chevron deference, laws like the Endangered Species Act must be radically cut back in the name of executive overreach.
Now I'll point out that there's a lot of executive overreach happening right now that is not being addressed, including direct incursions on our congressional powers to legislate and to appropriate. But I wanna talk go back to the Endangered Species Act because this follows a long pattern of attack that predated the Loper Bright Line Bright decision and goes back many years. Last congress alone, at least 115 bills and amendments were introduced to undermine the ESA. In the absence of Chevron deference, of course, agencies are constrained in their ability to interpret ambiguity in our laws, requiring them to adhere to the plain meaning of the text unless Congress specifically states otherwise. But there are a few laws that are as clear on the books as the Endangered Species Act and the Marine Mammal Protection Act.
Their mandates to prevent extinction and promote species recovery are reinforced in every section of their text. So my first question is a yes or no question. Mister Veccion, I'll ask this one to you. Do you believe that federal agencies like Fish and Wildlife Service should honor the planned meaning of our laws? Yes.
And do you agree that when there's an ambiguity in the law, the interpretation of the courts must be followed? Yes. So over forty years ago, in Tennessee Valley Authority versus Hill, Supreme Court stated that the plain intent of Congress in enacting the Endangered Species Act was to halt and reverse the trend towards species extinction, whatever the cost, and that the benefits for doing so were incalculable. Now Professor Rolfe, you've read through many of the Republican ESA proposals over the years. Does adding ambiguity and exceptions to the ESA, as many are proposing, improve species outcomes?
Does it help fulfill its mandate as reformed by the Supreme Court?
Speaker 7
No. Absolutely not. Most of the proposals to amend the Endangered Species Act that I've seen over the years would weaken this statute considerably and make it much more difficult to attack the biodiversity crisis.
Speaker 14
How about, if we try to undo decades' worth of environmental review regulations and remove guidance on the National Environmental Policy Act as this administration has done? Is that something you see as helping or hurting with the ambiguity?
Speaker 7
It is doing tremendous damage to our efforts to not only protect the endangered species, but also to make sure that protections for endangered species are compatible with what people need as well. I mean, that's an important part of both NEPA and the Endangered Species Act. And to weaken the act, to deprive it, to deprive federal agencies of resources to implement it.
Speaker 14
And, reclaim my time. Just to follow-up on that, what about the Trump must-cuts as you referred to, to the workforce at Fish and Wildlife Services? Dismantling agencies charged with enforcing these laws help the government fulfill the plain meaning of the ESA?
Speaker 14
And so, I will just note that, the community I represent, as mister Wylan knows, where do you live exactly in Ramy, mister Wylan?
Speaker 14
Oh, fantastic. You're a little bit north. Do you enjoy outdoor activities, fishing, hiking, biking, any of that? Surfing?
Speaker 14
Yeah. We have quite a lot of beautiful outdoor spaces, mountains, hills, lots of walking trails, and beautiful coastline. But, unfortunately, we are also subject to and on the front lines of a lot of the climate change that we're seeing. And, whether it's our shoreline that's eroding every year, whether it's extreme temperatures, the drought that we're facing, we are facing a lot of threats to our ecosystems right now. And that is one of the reasons that the first piece of legislation that I introduced as a member of Congress was the Aquatic Biodiversity Preservation Act, which would provide new tools to sequence the genetic information of at-risk species in our oceans and waters and to ensure that this data is available for researchers, conservation planners, and the general public so that we can try to get our handle on what is happening with extinction and the loss of biodiversity happening on our coastline.
Rising ocean acidification and rising temperatures have really threatened these fragile marine ecosystems. And that is something that I know that a lot of my constituents care deeply about. It's one reason why we have been so aggressive. I've been so aggressive in my career in trying to preserve the scarce biodiversity. And I worry about the effects of this approach that is being discussed today.
But with that, I yield back.
Speaker 2
Thank you. The chair now recognizes Miss Molloy for five minutes of questioning.
Speaker 22
Thank you, madam chairwoman. Thank you all for being here today. You're actually a really great panel. And I just wanna point out that I have some real-world experience with dealing with ESA regulation and policy. I have Utah prairie dogs, Mojave desert tortoises, and various fish species in my district.
And I've also been involved in the state's efforts to avoid the listing of sage grouse and gray wolves in Utah. I worked as an attorney on renewing an incidental take permit for one of those species, and I know firsthand how difficult it is to satisfy the ESA requirements in light of the regulations that have been enacted since 1973. So I appreciate a lot of what's been said here today, but mister Beccione, I hope I'm saying your name right. I was really struck by something you said about one of the factors that impacted the court's decision in the Loper Bright case was a resistance to regulation changing when the statute doesn't change. And I think that's the crux of this whole issue.
We're going back and forth on some partisan issues, but the reality is I wanna echo what chairwoman Hageman said about we need to do a better job of being really clear as Congress about what it is we're asking agencies to do. We also need to be more robust in our oversight of those agencies. What we've done is neglect the agencies, and then policies swing back and forth every time we have a presidential election. And there are a lot of things I would love to talk to you about, but I only have five minutes. And since the chairwoman did such a great job of talking about that, I just wanna say I echo what she says, and yield the rest of my time to chairwoman Hegemon.
Thank you.
Speaker 2
Thank you, Miss Molloy. And, mister Beckyoni, I am gonna focus on you again because I do think it's important. We've talked a lot about the Endangered Species Act today, but we also need to focus back on the Lopur Bright decision in reversing the Chevron decision. And what I'd like to ask with you as a practitioner, with all of the various cases that you have handled over the years, with agencies that really have gone rogue in many ways. They're not implementing the law as it was written by Congress, but they're implementing the law as they've interpreted it or reinterpreted it, either through regulations, guidance, documents, issuing answers to frequently asked questions, all of the various ways in which agencies have amassed more and more power since the EPA was adopted in the late 1940s.
Could you just provide us with some of the ideas that you have that would make Congress, that would help Congress to do better in terms of actual lawmaking, so that we can minimize either judicial or agency interpretation of what it is that we're putting down on paper. Because, again, under article one, we are the ones who should be writing the law. We should be able to be good at doing that well, and I'd love to hear what your advice might be in that regard.
Speaker 6
Well, there are a couple of things. First of all, we still have to defer to all the agencies on whatever they say about the science. The courts defer to that unless it's way out there. Okay? If it's arbitrary and capricious what they did, or if they didn't take into account some last minute data that was put in under the APA, you can get those knocked out.
But we, the judges, will still defer on the facts, and there's no Daubert. There's no in law, we have to, if I wanna put in testimony from an expert, I have to show he's an expert and he used proper methodology. The agencies don't have to do that. And in this case, something struck me that I have never looked at it before. I looked at the right whale proposal, and I argued that's where I argued relentless, right in Boston where it starts.
And they said there's about 500 of these whales left. There's a 100 female whales. But because of the nature of the Atlantic, they can't know where they are. I find it incredible with the amount of money that's spent by slowing this down. Those rail, you know why they're called right whales?
They're called right whales because when they hunted the whales into extinction, they loved them because when they're killed, they float. So you could get, you could go out of Nantucket and get them, and they were very easy to process. So it strikes me as odd that they've never asked for the money to tag these whales so that they're actually navigational obstacles for all the ships. How much would that cost? We had to believe the science in their proposal that strikes me as a sailor and a guy who's up there and has been in these whale places because I'm a whale guy, that they can't find those whales and tag almost all of them with an electronic beeper so that all these boats would know where they were.
So that's one thing. This is how the science is done. The other thing is you, when you have oversight, you should be asking them why they're doing this. Why aren't they delisting, or why are they listing? Or that question, how many of these do we need?
Right? The gray wolf, it's the most successful predator in the world. It's found on every continent but in Antarctica. If you don't kill them, trap them, and poison them, they're gonna come back.
Speaker 2
That's right. That is exactly right. I appreciate the advice that you have provided, and I think that we need to look into better defining what is meant by the best available science and what the agencies need to produce to actually support and defend the decisions that they're making. Because like you, I have to bring in my own expert witnesses, and I'm required to meet a certain burden of proof. But in the regulatory or guidance context, especially, agencies are not.
And I think that that's where we need help with revising the APA to force that issue when they are doing rulemaking. Thank you. And with that, I call on Mister Gray for his five minutes of questioning.
Speaker 23
I'd like to thank the chair and the ranking member for holding this hearing today, and certainly, thank you to the witnesses for being here. I represent District of California, part of the largest agricultural valley in the world and place I'm proud to be from and have participated in that very ag economy. But, you know, it's a common conversation back home as we seek to balance both the need to protect the environment and, you know, be good stewards of the land, and at the same time, protect the industry that's critically important to our valley and to this country. And in California, as you can imagine, these issues get pretty polarizing. And folks oftentimes seem to put themselves in one camp or another.
I'm either, you know, pro wildlife or pro water access. Right? And the reality is both of these things are critically important, and we should be striving to ensure that our farmers have access to the water they need while also protecting the delicate ecosystems that are influenced, you know, by these systems. I've certainly seen firsthand how people struggle when this balance turns into a zero-sum game and people stop listening to each other. You know, we really do need to find that balance, and certainly something I'm committed to during my time here in Congress.
Mister Bork, president Barack Obama observed that it makes little sense to have two different departments, interior and commerce, regulating the same species of fish depending on where that species was in the ocean or was in inland waters. And there are circumstances like the Klamath project where biological opinions issued by the Fish and Wildlife Service are inconsistent with biological opinions issued by the National Marine Fisheries Service. Do you think the goals of the Endangered Species Act could be better served by consolidating authority to implement the act in one department, the Department of the Interior?
Speaker 9
Okay. Yeah. I mean, I think that there is sense to, you know, unifying the expertise among the federal agency and the science and those who know best. But at the same time, there are separate processes between what the National Marine Fisheries Service handles and what the Fish and Wildlife Service handles. And the jurisdictional scopes of both of those agencies at this point appear to be working rather well.
What's not working well is the way that they individually implement the statutes or the species under their charge. Same and
Speaker 23
Thank you. Appreciate that. Mister Wheeland, thank you for your testimony today. As you likely know, another place where implementation of the ESA has been a challenge is during the FERC licensing and relicensing of hydropower facilities. Hydropower currently makes up about 40% of the nation's overall renewable electricity, certainly an essential resource, and, quite a bit in my district.
However, the next ten years alone, FERC licenses for nearly 300 hydropower projects comprising over 11 gigawatts of authorized capacity, and over 25% of the entire fleet of non federal hydropower capacity will expire. While this subcommittee isn't involved with the Federal Power Act, it does have jurisdiction over the Fish and Wildlife Service and the NMFFS, which are both mandatory conditioning agencies that frequently contribute to the length and cost of the FERC process. I continue back home to hear about hydropower projects being held hostage by federal agencies, imposing owners' fish passage and species protections requirements that make hydropower owners and their electric customers address issues way beyond the actual effects of the project, with little recourse to challenge. Do you have any experience in projects that have run into these issues? And what steps can we take to ensure that the implementation of the ESA doesn't end up killing critical hydropower resources or driving up costs for consumers?
Speaker 8
Yes. Thanks for the question. I do have experience working on, particularly with National Manufishery Service on FERC relicensing and on even on non FERC projects that have to go through section seven consultation and that involve dams and dam operations. And one of the challenges is the issue that the chair, and I discussed briefly earlier, which is, how NHIMS approaches the consultation itself, whether NHIMS goes into it with a mindset of looking at the entirety of the operations as discretionary and, therefore, subject to consultation so it can revisit how the dam is operated, whether it needs to fulfill some passage requirements, whether it's trap and haul or even a volitional fish passage like a fish ladder system, and whether those are feasible. And, one of the challenges, frankly, with National Marine Fisheries Service is that there are dams all up and down the West Coast, and the National Marine Fisheries Service sees those as an obstacle to the historical populations of fish, which it is.
But that doesn't mean it's an obstacle to those fish having viable populations, which is another issue. And I think that will be an ongoing issue and is an issue that many agencies on the West Coast face currently.
Speaker 23
Well, it's certainly a big problem. Thank you. From a holistic approach. Thank you, madam chair.
Speaker 2
Thank you. I yield my time. The chair now recognizes Miss Hojo for a request.
Speaker 3
Madam chair, I ask unanimous consent that representative Don Byrd of Virginia have permission to sit on the dais and participate in today's hearing.
Speaker 2
So ordered, and the chair now recognizes Mister Boyle Byr, excuse me, for his five minutes of questioning.
Speaker 21
Madam Chair, thank you very much. Professor Rolf, I I've just come in, but I've heard lots of different things have happened in this meeting. I wonder, before I ask a few questions, if you have anything you'd like to add.
Speaker 7
Sure. I just wanna reemphasize a couple of points. First of all, protecting and recovering species, protecting their habitats, protects humans as well. We depend on the natural world, just like imperiled species do. The Endangered Species Act and its regulations actually build considerations of species and recovery predictably into the everyday decisions of federal agencies.
Everybody has gotten used to that, and it's been really interesting to hear how, supposedly, when new administrations take over, regulations dramatically change. Well, the Endangered Species Act actually provides a good example. The regulations implementing section seven of the Endangered Species Act remained unchanged from 1986 to 2019. There are dramatic changes in 2019 by the Trump administration. Looking at those regulations, which I did pretty extensively, most of those regulations would probably not survive judicial review under Loper Bright, under the Loper Bright standard, because they simply weren't consistent with a best reading of the Endangered Species Act.
So if we wanna maintain that predictability, building in species recovery to everyday actions in a reasonable way, we should maintain those consistent regulations and not wildly adopt new regulations that don't make any sense under the terms of the statute as the first Trump administration did.
Speaker 21
Thank you very much. First of all, you and I are both well aware that the Endangered Species Act is why we were able to stop the extinction of gray wolves in North America. Right now, gray wolves are under state management in the Northern Rockies, and Wyoming has a shoot on sight policy pretty much anywhere outside of Yellowstone. In 85% of Wyoming, there are no requirements when killing a wolf. No hunting license, no bag limits, nothing that is typical of a well-managed hunting.
Wolves can't make it out of Yellowstone without being shot. Professor Rolf, what does Wyoming's shoot on-site policy for gray wolves mean for the recovery of the species?
Speaker 7
It obviously makes it more difficult. However, Congress legislatively delisted wolves in the Northern Rockies, which allows Wyoming to have that shoot on-site policy. It doesn't make any sense from, as you said, a sporting standpoint. It also doesn't make any sense from the standpoint of managing an ecosystem. And so continued protection of wolves until they have recovered throughout all or a significant portion of its range outside of that legislatively delisted portion is obviously still important.
Speaker 21
Thank you. You know, I had the pleasure of working with the late American biologist, E.O. Wilson, in his last years. And he deeply believed that all life depends on essential ecosystems, and that damaging or erasing these ecosystems will have a profound impact on biodiversity and human health and well-being. Our earth is currently facing a biodiversity crisis and species extinction. As you know, between 1970 and 2018, there's been an average 69% decrease in the population sizes of mammals, birds, amphibians, fish, and reptiles.
Professor Rolf, can you elaborate more on how important a well-funded and well-enforced ESA is, critical to reversing the course of damage to our biodiversity?
Speaker 7
Well, of course, Congress recognized the incalculable value of biodiversity in species to humans. That issue came up in looking at the constitutionality of the Endangered Species Act. And, one of the judges pointed to that value of biodiversity in saying that that affects interstate commerce, and that means the endangered that congress has the authority and the obligation to the public to protect, imperiled species. To give you a good example, Gila monsters in the American Southwest are declining. They've been the subject of listing petitions.
We should apply more resources to that species, they never need to be listed. The venom is one of the few venomous lizards. The venom of Gila monsters? Important to developing drugs like Ozempic, which helps fight diabetes, and is one of the most valuable drugs in the world right now to fight obesity. And without those biodiversity, those genetic resources, we simply would not discover those sorts of valuable and life-saving drugs.
Speaker 21
Professor, thank you for ringing up. I'd just like to point out that Mitch Daniels, the former Republican director of the OMB, pointed out that more than 30% of our Medicare budget is just type two dialysis, end stage renal disease. So the Gila monster is gonna save us an awful lot of money on Medicare. With that, madam chair, thank you.
Speaker 2
Well, thank you. And I do want to assure you that the Canadian gray wolf population in Wyoming is thriving, doing very, very well despite the fact that they have been delisted. The chair now calls on Mister Ezel for five minutes of questioning.
Speaker 24
Thank you, madam chair. Today's hearing is about accountability, and I wanna thank all the witnesses for being here today and sharing so much information. The Marine Mammal Protection Act and the Endangered Species Act were created with good intentions to protect species and ensure their survival. But over time, these laws have been twisted into the tools of overreach, allowing federal agencies to impose sweeping restrictions. Supreme Court reaffirmed that it is Congress, not unelected bureaucrats, who decide the scope of these laws.
Yet we continue to see agency actions that go far beyond what Congress ever intended. Take the case of the rice whales in the Gulf of America. Policies like these threaten entire industries and livelihoods from shipping, fishing, recreation, and national security. We must ensure conservation efforts are balanced with economic and practical realities. Mister Wyland, I appreciate your testimony on Noah's reliance on the precautionary principle.
We've seen this play out on the Atlantic Coast with the North Atlantic right whale vessel speed rule, which you rightfully called an observed outcome. And in the Gulf of America with rice, whales, both proposals would have crippled economies. I support conservation, but it must be grounded in sound science and common sense. This proposal had neither, and in my view, represents the gross overreach of agency authority. Do you believe Congress intended for Noah to have the power to effectively shut down ocean industries like we saw attempted with the Rice Wales proposal?
Speaker 8
No. I do not. I believe that when Congress enacted both the ESA and the MMPs, I testified earlier that there was a belief that species conservation could occur consistent with economic activity. And I think what we see is a consequence of the lack of reauthorization to revisit and update the laws. And reauthorization shouldn't mean all or nothing, you know, either gutting the laws or making them more difficult to get through.
We should be able to find a way to have common-sense reauthorization.
Speaker 24
Thank you. What changes could Congress make that might bring more balance to the law while still fulfilling its conservation mission?
Speaker 8
There are a number of changes. Mister Moore actually pointed out too, in his testimony, which he's provided specifically. But there are more that I could talk about than I have time for. I will say one, for example, is just decoupling the Endangered Species Act and the Marine Mammal Protection Act. So right now, before you can get an Incidental Take Statement under Section seven, you need your Marine Mammal Protection Act approval.
And there is no reason that it has to be contingent on that. And that's just one very simple step, but there are many others that could be taken.
Speaker 24
Thank you. Mister Fektor, one of the biggest frustrations I hear from my constituents, whether they are shrimpers, farmers, or energy producers, is that they spend years, and in some cases, millions of dollars, trying to comply with agency regulations only for the rules to keep changing based on lawsuits from radical environmental groups. To what extent do you believe litigation is driving regulatory instability under the ESA and the MMPA?
Speaker 6
Is that directed to me? I think I've cited some of the cases. Sometimes they win, sometimes they lose, but it is the fact that you can have a friend inside the agency and then sue along with that to either help or hurt, it is somewhat of a problem. It strikes me.
Speaker 24
Thank you. And thank you all for being here today. Madam Chairwoman, I yield back.
Speaker 2
Thank you. The chair now recognizes Miss Hoyle for her five minutes of questioning.
Speaker 3
Thank you. Mister Rolf, I just wondered as we finish up this hearing if you have some final comments on what we've talked about today.
Speaker 7
Yes. Thank you very much, representative Hoyle. I appreciate everyone's concerns, to uphold the policy behind the Endangered Species Act, which is to prevent extinction and to facilitate the recovery of listed species, and also to prevent species from becoming threatened or endangered. I think we can all agree on those things. How do we do that?
How do we best do that? And is the ESA equipped to do that? Let me start with the second one. I think the ESA is unequivocally equipped to do all of those things. Many states, property owners, and the federal government have worked together to try to prevent species from becoming threatened or endangered.
The prospect of listing has fostered a lot of cooperation and innovation. And in some cases, that has protected species before they need to be listed. That is working with the states. That is using state authority. And we should encourage and even fund those sorts of actions.
When species are imperiled, when the best available science, which should continue to drive decisions under the Endangered Species Act, indicates that species are in danger of extinction, then we should continue to adopt what Congress very clearly said was the, quote, institutionalization of caution, close quote. And, my colleagues here have talked about the precautionary principle as if it's some sort of terrible thing that overregulates everything and we should avoid it. Well, actually, Congress was very clear in the Endangered Species Act. The Section seven and the prohibition against federal agencies from taking actions that jeopardize listed species, congress said when it enacted the Endangered Species Act that that is the institutionalization of caution. And I would submit that that's a very wise idea, that we should institutionalize this sort of consultation process, basically building into permitting, considering upfront the needs of threatened or endangered species in making federal decisions, in permitting, other actions to go forward, such as oil and gas exploration in the Gulf or vessels navigating along the East Coast.
If we do that with adequate resources using the best available science, in almost all cases, we've been able to find ways of doing business that don't jeopardize the existence of threatened and endangered species, that minimize impacts on marine mammals, and still allow economic activities to go forward. Does that impose some economic cost? Yes. It may indeed. But we live with resources that we need, and we need to protect those resources, which require some degree of investment.
So none of that should come as a surprise, but on balance, protecting a functional environment protects us. Finally, everybody talks about, oh, the courts are running this or running that. The courts really are not running anything. The courts evaluate the decisions of federal agencies in implementing the Endangered Species Act and the Marine Mammal Protection Act. Sometimes economic interests challenge those decisions by regulators, and they win.
Sometimes environmental plaintiffs challenge decisions of regulators, and they win. But all of those challenges and decisions by courts are based on the law itself, and the clear regulations under that statute, and an assessment of whether or not federal agencies use the best available science. So courts aren't running anything. Congress is running it. The Endangered Species Act and its clear regulations are ruling what happens.
And so I think if we look over the last 50 years, the Endangered Species Act has been a resounding success, and I look forward to more decades of that success.
Speaker 2
Thank you. The chair now recognizes Miss Bobert from Colorado for five minutes of questioning. Thank you for being here.
Speaker 25
Yes. Thank you so much, Madam Chair. And, you know, we would like to brag on some of the ESA resounding successes all the time here in this committee. For instance, the gray wolf that is fully and completely recovered and should be federally delisted from the Endangered Species Act. So that is truly a success story that should be championed on by both sides of the aisle here.
But as we've seen, the ESA has been exploited by the federal government and radical environmental organizations to stifle development and hinder species recovery. With the help of the Trump administration, both in his first term and now here, I'm looking forward to even more help. We're working to ensure that the federal agencies are held accountable for their regulatory overreach and reform in these statutes so that they are implemented as Congress did intend. Unfortunately, congress has not followed the success stories of the ESA enough, and so there has been some actions taken in the administration. Mister Moore, do you know the cost of the delays to the natural gas projects?
The implementation of the ESA has passed on to the American people over 30.
Speaker 9
Across the industry, I don't. I do on a project by project basis for those that I have worked on. Just give me.
Speaker 9
Yeah. I mean, to give you one example for a project that I worked on in the Mid Atlantic for an oil and gas pipeline project, there was as a result of numerous challenges to the section seven consultation, it resulted in the project going from 3 and a half billion dollars to just over $7,000,000,000. Wow. One project.
Speaker 25
Wow. That's incredible. And I have here the endangered species act, has caused, obviously, numerous delays to natural gas projects in the US, and we have an estimated cost to the economy of 261 to $979,000,000 over the past thirty years. And so your one project certainly has much more detail than that. Mister Moore, how do you believe that President Trump's emergency energy declaration would reduce costly delays like this?
Speaker 9
I think that any streamlining measure is going to certainly, I mean, it's going to make the process run more smoothly. Anything that will lift the unnecessary delays that are faced is going to not only make the process run better and how it was intended to run, but it also will free up the resources of the agencies. As it is right now, they're facing a constant barrage of lawsuits from project opponents that really hamstring them, and they're not in a position to be able to do the work that they were tasked with doing by congress. That causes them to then have to, you know, reallocate resources to other projects. So anything that streamlines the process and makes it run in an efficient manner is going to have, you know, benefits across not only the regulated community, but also within the government.
Speaker 25
Yes. Thank you. Streamlining does certainly save money and makes things more efficient. Mister Vishoni, is that okay? Would you agree that the purpose of the ESA to remove species from the list of endangered and threatened species once the species has recovered is the right path to take?
Speaker 25
Yes. So, I think especially, impacting our farmers and ranchers, in my home state of Colorado with the judicial fiat that has resulted in the gray wolf continuing to be delisted. The science is crystal clear on this. The gray wolf should no longer be on the list. It is completely recovered, at over 6,000 wolves at the time of the first delisting.
The gray wolf has been the latest endangered species act success story that we've been focused on here. Now how have state and tribal management plans helped to bring back species like the gray wolf to be fully recovered, and how does keeping them on the list disenfranchise these partnerships?
Speaker 25
Okay. Great. Well, I think that working with our tribal lands certainly does help in with this partnership. And, you know, they're even willing to enact their Bruneau treaty to prevent the gray wolves from being introduced onto their sovereign land. So thank you to our witnesses who are here today, and have a great day.
Speaker 2
Thank you. I ask for unanimous consent to enter into the hearing record four letters received by the committee. A letter from the Energeo Alliance which highlights challenges with the implementation of the MMPA and ESA, and how reforms could provide greater certainty to the American energy sector. A letter from the California Sea Urchin Commission. A letter from the California Pelagic Fisheries Association, and a letter from the Mystic Aquarium in Connecticut.
Without objection, so ordered. I want to thank the witnesses for their valuable testimony and the members for their questions. The members of the committee may have some additional questions for the witnesses, and we will ask you to respond to those in writing. Under Committee Rule three, members of the committee must submit questions to the Subcommittee Clerk by five p.m. M.
Eastern on Monday, March 3. The hearing record will be held open for 10 business days for those responses. Without objection, the subcommittee stands adjourned.
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