Sage Grouse Returns as NDAA Sticking Point

The annual defense bill, as well as the farm bill, will see contentious debates over several other environmental issues.

The sage grouse is once again a subject of debate in Congress.
AP Photo/David Zalubowski
June 28, 2018, 1:09 p.m.

A battle over environmental protections is gearing up to play an outsized role in two big-ticket legislative priorities on the horizon.

Lawmakers are set to take on cross-capitol negotiations over the farm bill and the National Defense Authorization Act in the coming weeks. Farm-bill talks are expected to be far more contentious, but both bills feature controversial environmental language that is likely to bring the knives out.

Military experts and environmentalists are all too familiar with one big fight set to ramp up again soon. Congress has locked horns in recent years over whether to prohibit a federal Endangered Species Act listing for sage grouse, a ground-dwelling bird with a habitat that spans the Western U.S.

Congressional and industry supporters of that language are now, however, emboldened by the absence of Senate Armed Services Committee Chairman John McCain, who is battling brain cancer in Arizona. McCain has previously derailed efforts to include the provision in the annual defense bill, dismissing it as unrelated to the military.

Sen. James Inhofe, a chief critic of federal environmental regulations, will likely take the Senate helm in NDAA conference. The House voted Wednesday to go to conference over the defense legislation, and a Senate move to that effect will kick-start the negotiations.

The NDAA language, which is included in the House bill, would prohibit federal listing of the sage grouse, lesser prairie-chicken, and the American burying beetle as endangered or threatened species for 10 years. It would also bar lawsuits on those species, which environmental groups regularly file to challenge Interior Department conservation practices.

The 10-year period would allow state programs, which environmentalists typically criticize as insufficient, to showcase the best conservation methods, according to energy and livestock lobbying groups, as well as Capitol Hill proponents.

“It would not allow the federal government to preempt state plans, and to be honest, the states have taken into consideration military lands in all of their plans. The federal government did not,” House Natural Resources Committee Chairman Rob Bishop, who is also a House Armed Services member, told National Journal. “Forty percent of all air traffic that the military uses are over those areas. If the underlying land is designated as a habitat, there can be all sorts of lawsuits or judicial decisions.”

The Air Force position on sage grouse has been a bit of an enigma for years. A top Air Force official told House Democrats in 2016 that management plans at the time didn’t complicate military operations to “any significant degree.”

Those management plans capped off years of regulatory jockeying over sage grouse. In 2010, the Fish and Wildlife Service, a branch of the Interior Department, determined that declines in sage-grouse populations warranted Endangered Species Act protection, citing sagebrush-habitat loss and inadequate regulation at the state level. But a broad conservation program followed, and the agency reversed course in 2015.

Still, Bishop and industry allies hammer home the role of defense.

“We’ve always been frustrated by Senator McCain’s willingness to so quickly dismiss the Endangered Species Act language,” said Ethan Lane, executive director of federal lands at the National Cattlemen’s Beef Association. “And I understand that he may have been frustrated by attempts to tack on riders to NDAA. He’s been a purist in that sense.

“But on sage grouse, there is so clearly a defense component. We’ve heard from pilots on that,” Lane added.

Bishop led the effort to tack on the Endangered Species Act language during the House NDAA markup. That amendment passed along party lines, while the full bill sailed through committee in a 60-1 vote. Bishop is now a designated conferee.

At least some Republican senators say they would be pleased to reverse McCain on the issue.

“We’re still hunting sage grouse in Montana, and we need to defer any listing and allow the states to move forward with their plans,” Sen. Steve Daines of Montana told National Journal. “I have respect for Senator McCain. I do. I value his input. I’ve been on the other side of the issue.”

Farm-bill legislation, meanwhile, is posing its own environmental challenges. Republican Sen. James Risch is leading an amendment to bar Endangered Species Act listings for the sage grouse and lesser prairie-chicken for 10 years, a measure closely aligned with the NDAA language. Sen. John Barrasso is also leading a squad of Republicans on an amendment to speed up Interior Department permitting for hunting bald eagles. Both amendments could get a vote before the July 4 recess week or shortly thereafter.

But even the underlying text for the farm bills in both chambers is drawing fierce opposition from environmental groups. The House version, which passed last week on a razor-thin margin with no Democratic support, includes language to make it harder to prosecute pesticide users in the event that a pesticide kills a threatened or endangered species. The House legislation also includes wide-ranging language to scale back regulations on pesticides.

Nora Apter, a legislative expert at the Natural Resources Defense Council, called the House language a “pesticides wish-list.”

Meanwhile, the underlying text of the Senate farm bill, a bipartisan product that is likely to pass by a strong majority, is also leading environmental groups to speak out. The NRDC, the Center for Biological Diversity, and the Western Watersheds Project are all criticizing a bipartisan provision to speed up Interior Department environmental analysis for projects designed to restore sage-grouse and mule-deer populations.

Those environmental groups say the language is a proverbial Trojan horse, arguing it would incentivize the Interior Department to log old-growth pinyon and juniper trees that protect underbrush from invasive weeds threatening sagebrush, the lifeblood of sage grouse.

“Safeguards have not been built into this legislation to prevent that type of ecological abuse,” said Erik Molvar, executive director of the Western Watersheds Project.

Sen. Martin Heinrich, a Democratic cosponsor of the language, contests that analysis. “We are confident that it would improve, not harm, the ability of the [Bureau of Land Management] and conservation partners to restore sage-grouse and mule-deer habitat,” said Whitney Potter, a spokeswoman for Heinrich, adding that the senator opposes the NDAA Endangered Species Act listing ban.

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