LOS ANGELES – Several Clinton administration rules deemed favorable to environmentalists are being reconsidered under court orders that suggest Clinton's Interior Department went too far in passing regulations to protect endangered species.
"I think the courts are rightly stepping in and moving the pendulum to where there is a reasoned, balanced approach," said Richard Jemison, a land developer and homebuilder.
Courts have taken action in Washington, where 25 species of endangered salmon may be taken off the endangered species list after a judge ruled that hatchery fish are biologically identical to so-called "wild" salmon.
In Arizona, a judge has allowed cattle to drink from streams set aside for native minnows.
In California, another judge ruled that agencies trampled private property rights while expanding habitats for protected species.
The courts' tempering of what many consider extreme environmental policy is being slowed, however, by counter suits from uncompromising activists and career bureaucrats who remain committed to environmental causes.
"If the best available science is not used and a plan is put forth that endangers species, we will be there to take legal action," said Bob Hunter, a staff attorney for Waterwatch, a conservation group devoted to restoring the flow of Oregon's rivers.
Under the Endangered Species Act, the government is supposed to weigh environmental benefits against economic cost.
Yet in California, when it set up a critical habitat for the California gnatcatcher, an endangered bird, government officials said there was no "economic impact," even though it set aside and stopped development on 500,000 acres of the most valuable land in California.
"They said anything that has been habitat in past, that is now or could be occupied in the future, we are going to set aside," Jemison said. "Our whole project was stopped — a project in the $200 million range of sale-able homes."
Developers and ranchers welcome the new legal atmosphere but say effectively little has changed. They would like more of the endangered species law to be revisited.
They may get their wish. Congress is considering legislation sponsored by Oregon Republican Rep. Greg Walden, who represents the troubled Klamath Basin area, where rules to protect suckerfish in the river cut off water to farmers last summer, forcing them to lose their entire harvest for the year.
Walden's legislation would make some permanent changes to the Endangered Species Act, requiring "good science" before any ESA decision is made.