Outside magazine, January 1998
Things now, however, look to be different. The reason: Dirk Kempthorne, a Republican senator from Idaho who seems to be holding together an impressive coalition in support of his recently proposed Endangered Species Act rewrite. Backers of his plan include members of the factions needed to turn the bill into law — influential Republicans (most notably Environment and Public Works Committee chairman John H. Chafee of Rhode Island), key Senate Democrats, and even members of the Clinton administration. With such a weighty coalition in place, the matter has catapulted to the top of the congressional agenda; last fall the so-called Kempthorne bill was approved by Chafee's committee, and it may come to the Senate floor as early as this month.
The proposal, says Kempthorne, would provide greater incentives for landowners to protect species by legalizing private habitat-conservation programs, reduce bureaucratic red tape by streamlining burdensome agency reviews, and strengthen recovery plans for such species as the whooping crane, the Mexican spotted owl, and the Florida panther. But though the bill has support from moderates on both sides of the congressional aisle, among environmentalists the legislation is decidedly less popular. In its concessions to landowners, they argue, too much long-term protection of species has been sacrificed. "The Kempthorne bill is a giant Ginsu knife," says Heather Weiner, an attorney with the Earthjustice (formerly Sierra Club) Legal Defense Fund, "slicing and dicing its way through the safety net of the ESA." One particularly controversial provision, for instance, would in many cases allow federal agencies such as the Forest Service to be excused from having their actions reviewed by the U.S. Fish & Wildlife Service, which administers the endangered-species program. "That's like asking Jack Kevorkian to serve on a commission to discuss doctor-assisted suicide," argues Peter Galvin of the Tucson-based Southwest Center for Biological Diversity. "It's a clear conflict of interest, because you're asking the agencies to police themselves." Then there is the notorious "no surprises" clause, which essentially states that once a landowner is granted a permit to develop his property, the decision is not subject to review for a period of 100 years. Finally, many environmentalists also point out that the legislation just plain ignores many imperiled species. "Kempthorne's bill will do nothing to recover the chinook salmon in the Pacific Northwest, the grizzly bear in Montana, or the hundreds of endangered birds and plants in Hawaii," says Weiner.
Oddly enough, at the other end of the spectrum, the proposal is equally unpopular with members of the so-called Wise Use movement, who say that the bill, in failing to include provisions that would provide monetary compensation to those whose ability to develop their property is restricted under the Act, doesn't do enough to protect landowners. And it has also gotten a cool reception from many conservatives in Congress. "That is really the bottom line," says Alaska's Don Young, chairman of the House Committee on Resources, of the absence of such property-rights provisions. "And I'm not going to promote any bill that doesn't deal with the bottom line."
Still, both sides face a tough adversary in Kempthorne, who in the five years that he's occupied his seat has burnished a reputation as one of the Senate's most effective deal-makers. According to Washington insiders, what makes Kempthorne such a force is his ability to build consensus among opposing constituencies. "Dirk has a tremendous capability to bring folks together," says Larry Craig, the senior senator from Idaho. "And he'll literally work nonstop to get things done." Tellingly, in pushing his endangered-species bill, Kempthorne has steered clear of the kind of fiery pronouncements that sent the Republicans into political turmoil during the party's fizzled revolution in 1995, instead selling the bill as a pragmatic, middle-of-the-road alternative. "I must have crafted something that's pretty well balanced," he says, all but bubbling over with pride, "because I'm now in the crosshairs between the two extremes — both saying that this bill is bad."
Weiner, however, claims this balance is an illusion. She warns that Kempthorne is merely wrapping his brown legislation in green rhetoric, co-opting many of the most potent themes used by environmentalists by tossing out catch phrases such as "habitat protection" and "species recovery." "Kempthorne's ability to camouflage himself is very dangerous," she declares. "He's a wolf in sheep's clothing who has taken up our mantra and made it his own."
Even though she admits that she's facing an uphill battle, Weiner and her ilk are looking forward to at least one small bit of redemption: The man she regards as perhaps her most lethal congressional foe is pulling himself from the war. The senator has recently announced that he'll be leaving Washington at the end of '98 to run for governor. But by then, of course, the damage likely will have been done. "We're playing a dangerous game here with the Kempthorne bill," says Bill Snape, legal director of Defenders of Wildlife. "It's like Chinese water torture — a very gradual but consistent weakening of the ESA."
Photograph by Chris Hartlove; illustration by Ward Sutton