John Roberts with President Bush, July 2005 (White House photo by Eric Draper)

We’ve asked law professor Jonathan Turley to help us better understand those issues and what—if anything—we learned about Judge Roberts on the environment. Mr Turley is the Shapiro Professor of Public Interest Law at George Washington University and joins us from his office in Washington, DC.

Professor Turley, welcome to Living on Earth.

TURLEY: Thanks. Good to be back.

CURWOOD: You know, it didn’t take long for Senators to get to the environment in this hearing. The ranking Senate Democrat on Judiciary, Pat Leahy of Vermont, had a question in his very first round with Judge Roberts concerning something called “standing” and whether ordinary citizens should be able to bring environmental lawsuits. Why do you think that Senator Leahy put such importance on this issue? And what is standing anyway?

TURLEY: Well, Senator Leahy asked the right question because many citizens don’t understand that no matter how good your laws may be, no matter how pro-environment and protective they may be, they mean nothing unless people can actually get into court and bring lawsuits under those laws. That’s a question of standing. A citizen has to show that she has a right to bring a case before a court. That requires a showing of some injury and this notion of legal standing to qualify her, essentially, as a bona fide litigant.

In the last twenty years, the federal courts and Congress, to some extent, has been narrowing the principle of standing. Chief Justice Rehnquist has been particularly aggressive in narrowing the definition of standing and, thereby, reducing the access to the courts of some citizen groups and individual citizens.

CURWOOD: And, of course, the environment is an issue where almost anyone can claim they might be affected by something. I mean, if air is being polluted somewhere, anyone could breathe that air and they might be justifiably concerned about it.

TURLEY: That’s right. And we went through a period where citizens were given a much more liberal treatment in bringing cases. And there was, in fact, a very significant case called Sierra Club v. Morton where the court actually debated whether trees and animals have standing; whether you can bring a lawsuit essentially on behalf of a forest. But those times are long gone. One of the principle things that the Rehnquist court worked on so ardently was to reduce standing and reduce access to the courts. John Roberts appears to be cut from that same cloth as Chief Justice Rehnquist.

CURWOOD: So, what can we look at in the courts now? I would think that also Supreme Court Justice Antonin Scalia is pretty sensitive to this idea, as well.

TURLEY: Yes, indeed. Scalia has been one of the great advocates in reducing standing, reducing access to the courts. I personally believe that John Roberts is very much like Scalia and Rehnquist in their views.

CURWOOD: Now, there’s an article that Judge Roberts wrote for the Duke University Law Journal defending this perspective. And I’d like to play some tape of how Senator Leahy took Judge Roberts to task on that.

[HEARING TAPE:]

LEAHY: So I ask you this: If peoples, if their president or their governor fails to enforce these laws, why shouldn't individuals have access to courts where polluting companies could be made to pay for their wrongdoing? What can you do to assure us that they as individuals won't find under a Chief Justice Roberts, find the courthouse door slammed shut in their face?

ROBERTS: Well, one thing I would tell them to do is read the rest of the Duke Law Journal article. Because one thing, one point it makes is that environmental interests, it goes on to say, aesthetic interests, those are all protected under the law, and that one reason courts should insist that those who bring suit have standing -- that's the issue, that are actually injured – is because standing can encompass, certainly, environmental harms. The issue that was being addressed in the Duke Law Journal article was whether anyone could bring a lawsuit just because they're interested in the issue, or whether the plaintiffs had to show that they had been injured. The question is whether somebody halfway across the country who's not injured by that act should be able to bring suit.

CURWOOD: So, what do you think the answer to that question might be from Judge Roberts if he were here and with us and willing to answer directly?

TURLEY: [LAUGHS] Well, the directly point is the difficult one. I think, frankly, that answer was colossal spin. I have read the 1993 Law Review article and what comes out of there, in my view, is a very strident voice in terms of reducing access to the courts and reducing standing. At one point, he says that we can’t allow federal courts to be occupied by lawsuits, and this is a quote “at the behest of any John Q. Public who happens to be interested.” Well, that reflects the same view of Scalia and Rehnquist that simply bringing forth a legitimate case involving a violation in the environment is not enough. You have to show what’s sometimes called “user standing” that you are personally injured to bring the suit. Well, some of these lawsuits, particularly the extra-territorial suits—the ones occurring outside the country—make that very, very difficult

CURWOOD: So, if a wetlands advocacy group from, say, Massachusetts looked at the situation in southern Louisiana and said the destruction of the wetlands there is really endangering the people of New Orleans, and activities, certain government activities should stop, they wouldn’t be able to bring such a lawsuit.

TURLEY: That’s right. Or if you have people who want to stop the loss of an endangered species, or the destruction of a forest, they need to show something other than the mere fact that the statute’s being violated.

Now, all courts agree that you have to have some limitations on standing. There was a time when we debated the concept of “universal standings”—simply allowing people to come in and sue whenever they see these violations. That view was rejected. But what John Roberts has advocated in the past is a much more stringent test, one that requires such an injury that it excludes the vast majority of citizens who are inclined to sue in a given case.

CURWOOD: All right now, let’s look at his judicial record. He’s only been on the bench now for a couple of years in the federal appeals courts. There’s not a lot of court opinion upon which to judge the judge here. There is one big environmental opinion that he has. That involves an endangered species case. Officially, it’s the Rancho Viejo case but because of Roberts’ own colorful opinion it’s known as “the hapless toad” case. What’s that about, Professor Turley?

TURLEY: [LAUGHS] Well, Judge Roberts referred to this protected species as “the hapless toad” that unfortunately lives its life in California and does not cross state lines. And the reason it’s “hapless” is it would have been better if it travelled a little more. If it got over state lines, it would clearly trigger interstate commerce, one of the grounds with which Congress can regulate and protect thing like the hapless toad.

CURWOOD: Now, maybe because this was a California case, California Democratic Senator Diane Feinstein asked Judge Roberts about it. Let’s listen to a bit of that exchange:

[TAPE FROM HEARING]

ROBERTS: I did not take the position that it was outside the scope of the commerce clause. It was a question of which ground under the commerce clause we ought to look at.

FEINSTEIN: There's a great deal of concern as to what this then means for the implication for all environmental law--the Clean Water Act, the Clean Air Act. But if I understand you correctly, what you’re saying is that you do not believe that the commerce clause should prohibit legislation in this area. Is that correct?

ROBERTS: I have not had occasion to decide that. I did not decide it in the Rancho Viejo case. One of the other judges did, and I did not join that opinion. What I said is: we should consider these other grounds. Those other grounds were what other courts had used to sustain application of the Endangered Species Act in the cases that came before them. They analyzed the protection of the endangered species as implicating a commercial activity. And that allowed them to sustain the act without regard to whether it had an interstate effect itself.

CURWOOD: So, we didn’t still get quite a full view of what’s in Judge Roberts’ hand on this issue, did we, hmm?

TURLEY: [LAUGHS] No. It’s moments like this that you really miss Bob Bork. I mean he would’ve just basically said “I feel free to wear a necklace of hapless toads into this room. I am not going to accept the commerce clause protects it.”

In the decision, John Roberts sounds much more strident than he appeared in that committee room. He said in that opinion that he chastised the panel’s approach because it suggested, and here’s the quote: “the taking of a hapless toad that for reasons of its own lives its entire life in California constitutes regulating commerce.” Well, the clear message there was that he didn’t agree with that position. Now, he might have found, as he suggested in the hearing, other grounds to support the federal regulation. Well, what seems abundantly clear from that statement, and from his earlier writings, is that he does not believe that the commerce clause authority of Congress is a likely basis to protect endangered species or, presumably, other environmental regulations.

CURWOOD: And just to remind people that Robert Bork, of course, was famously rejected as a Supreme Court nominee after being fairly explicit about his conservative views in front of the Congress that was holding hearings. And other Supreme Court Justices since that time have also been fairly explicit about their views. This time around, it seems like there are not a lot of questions being answered clearly.

TURLEY: Yeah, I’m not too sure what is going on. We can all disagree with what the framers intended these meetings to be but I can’t believe that this is what they intended it to be. There has been zero information, in my view, exchanged during these hearings. They’ve been a virtual cure to insomnia. But, you know, what’s strange is that the Democratic Senators while complaining, they don’t seem to be organized in a serious opposition.

You know, John Roberts’ views are not unlike Bob Bork’s! And many of these Senators laid down in front of Bob Bork and said “over my dead body will you make it to the Supreme Court.” Well, if you shave off the beard and give a few Botox injections, you have John Roberts on issues like commerce clause and affirmative action. So, what I find really striking is not just that the Roberts’ model is gonna gut future confirmation hearings in terms of their substance. But also it shows how purely visual American politics really have become.

CURWOOD: Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Thanks for your time.

TURLEY: It’s my great pleasure.

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[MUSIC: Radiohead “Like Spinning Plates” from ‘Amnesiac’ (Reprise - 1998)]

CURWOOD: Coming up: the environmental aftermath of Hurricane Katrina. The EPA says the scale of the disaster marks new territory for the agency. Keep listening to Living on Earth.

[MUSIC: Pavement “5 Minus 4 Equals Unity” from ‘Crooked Rain, Crooked Rain’ (Matador 2004)]

Katrina After-effects

CURWOOD: It's Living on Earth. I'm Steve Curwood.

Louisiana is one of the nation’s most important sites for the chemical and oil industries, but in the first few days after Hurricane Katrina, there was little information available about any toxic hazards the storm might have unleashed. That’s because the Environmental Protection Agency says crews it dispatched at first joined the search and rescue efforts, rather than testing the air and water.

Now, the EPA has turned to its core mission: protecting the future of these Gulf Coast communities from lasting environmental damage. And preliminary test results aren’t promising. According to the agency's air and water sampling, New Orleans floodwaters contain significant amounts of arsenic, lead and hexavalent chromium - a human carcinogen found in plastics and paints. There are also substantial quantities of E. coli and other bacteria that pose serious health risks.

Meanwhile, air samples show high levels of an acid found in detergents and pharmaceuticals that can cause skin injuries, respiratory problems and nervous system damage. Other air monitors have detected freon, isobutylene, and methanol but, so far, the EPA is not reporting that these are at dangerous levels.

EPA Administrator Stephen Johnson says the challenge his agency faces is huge.

JOHNSON: This really is unchartered territory. Unchartered territory in the sense of the magnitude of the problem. In my 25 year history here at EPA, have never seen the kind of historic disaster, natural disaster that we're facing, and EPA is there to help.

CURWOOD: But it’s hard to know how much help will be required from the EPA, and how much more work it can handle. The agency has been hit repeatedly by the Bush administration’s budget axe, with reductions scheduled for this year and next.

The added costs of assessing Katrina’s damage, and implementing restoration and remediation could easily put the EPA in the red but, so far, Administrator Johnson isn’t worried.

JOHNSON: At this point, we have sufficient funds; we're in the early days of assessment and we don't know what that assessment will show. Certainly, I've instructed our staff if there are any resource issues to make them known to me immediately. But, for now, we have sufficient resources to do what we are doing.

CURWOOD: As residents return to the city, critics of the EPA warn there may be political pressures on the agency to sound the “all-clear” and allow rebuilding while there is still widespread contamination. Steve Johnson dismisses those worries.

JOHNSON: I have not faced any pressure whatsoever. My responsibilities as head of EPA is to make sure the public health and environment are protected and, certainly, I've taken all the steps necessary to do that by doing all the sampling we're doing, by providing advice and council when I was alerted. When I was briefed that the water was unsafe, then Dr. Gerberding of the CDC and I went on national news to try to get the message out this water's unsafe. So my responsibility is to make sure public health and the environment are protected, and that's what I intend to do.

CURWOOD: The EPA administrator went on to say the agency has learned many lessons from its response to the World Trade Center disaster, and the priority now is on getting information out to the public as test results come in. The agency was widely criticized for downplaying air quality results in the early days after 9/11, and providing inadequate cleanup in the aftermath.

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Lessons from 9/11

CURWOOD: One of the critics is Kimberly Flynn, a 9/11 survivor , and co-coordinator of the 9/11 Environmental Action Group in Lower Manhattan. She’s also a native of New Orleans and she joins me now from New York City.

Hello.

FLYNN: Hello, thanks for having me.

CURWOOD: Let me ask you, you've had many meetings with the EPA about their disaster response after 9/11. What was the quality of your overall experience with them?

FLYNN: Well, it was an experience of struggle. My group and the community groups and labor groups that went into these meetings at EPA Region 2 in the summer of 2002, brought to EPA many recommendations for important improvements to EPA's testing and cleanup protocols. EPA, unfortunately, ignored our recommendations, and then, in 2003, the EPA's Inspector General released its report on EPA's environmental response, and lo and behold, every recommendation that we had made was in the IG report Chapter 6 on the indoor cleanup. We were right, the EPA was wrong.

CURWOOD: Now, you were trying to make your neighborhoods habitable again. What was the problem with the EPA? They weren't testing the right things? They weren't making the right recommendations? What did you want them to do?

FLYNN: Well, what we wanted them to do was something called “representative testing.” We wanted them to do testing in buildings successive perimeters around Ground Zero. So you test around Ground Zero, and then you move out to the next circle and you test inside buildings there, and you test and look for the point at which contaminants, like lead and asbestos and mercury and other things in the World Trade Center dust, drop off significantly. EPA never conducted representative testing.

We also wanted EPA to offer a sound, comprehensive cleanup of all residences and workplaces that were affected by the disaster. EPA, instead, offered a voluntary cleanup for apartments only, it did very little outreach, and the cleanup was very substandard. In the end, fewer than 18 percent of, I think, 30,000 apartments in Lower Manhattan were even touched by the EPA.

CURWOOD: So now, as you look at what's going on in New Orleans as far as the EPA's response to the hurricane, how do you feel about how it's doing its job?

FLYNN: Troubled. We’re actually very worried that we’re watching another cover up shape up.

CURWOOD: Cover up? That’s strong words.

FLYNN: Yeah, I know it is but, really, when we look at EPA's testing design for floodwater in New Orleans, EPA started out with six sites where they were doing water sampling. Now it's expanded to 13 sites. But New Orleans is 180 square miles of land and 80 percent of that was underwater. So this raises the question of whether EPA is using adequate sampling methodologies, or whether in fact EPA is looking to find as little as possible so that it has to conduct as little cleanup as possible.

CURWOOD: You have family in New Orleans, I understand it, still. Where were they when the hurricane struck?

FLYNN: My family was in an apartment building in the near vicinity of the now-notorious 17th Street Canal levee break.

CURWOOD: How did they do?

FLYNN: They did fine. The winds were extremely scary, and they were actually, you know, they were very concerned when the floodwaters started to rise late Monday. But, eventually, they were rescued by first responders, and they are now safe and sound. We’re very lucky.

CURWOOD: What's your advice to them about going back to the city?

FLYNN: Well, my advice to them right now is not to go back to the city. And you know, New Orleanians love the city and New Orleanians want to come back, but right now, the city is far too contaminated.

CURWOOD: In your view, the EPA didn't do a very good job in communicating with the public after 9/11 in New York. What should they do now in New Orleans?

FLYNN: Well, EPA actually has even a legal obligation to do everything in its power to engage the affected communities. And we know that New Orleans is a diaspora right now and people are displaced, but they are clustered in nearby cities like Baton Rouge and Houston. So if EPA were to take seriously that it has to partner with the community, it would hold a series of town halls in these cities that should be broadcast on TV and the Internet. The public needs to get a chance to question the EPA and what we've learned from experience is that that's the fastest way to get to the bottom of any situation that involves toxics.

CURWOOD: Kimberly Flynn is co-coordinator of the 9/11 Environmental Action Group in Lower Manhattan. She's also a native of New Orleans. Thanks for your information, Kim.

FLYNN: Thank you very much.

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[MUSIC: Portishead “Roads” from ‘Dummy’ (UMG Recordings – 1994)]

Call for Oil Refineries

CURWOOD: Nearly half of America's oil refineries are along the Gulf Coast between Texas and Alabama. So when Hurricane Katrina took a number of them off line, drivers immediately felt the impact with record gas prices, as there were no other refineries to take up the slack.

No new refineries have been built in the U. S. since the 1970’s, and many of the older and dirty ones have been retired. Now some say we need more refineries, built to strict clean standards. Among them is Robert Slaughter, he’s president of the National Petrochemical and Refiners Association. Mr. Slaughter, why do we need new refineries?

SLAUGHTER: Well, basically, because we have been unable to keep up even with the growth in demand in the United States for most of the last ten years. The number of refineries and the refining capacity peaked in 1981 at the end of the price control period. Some refining capacity has been added back over but we still have demand for well over 20 million barrels a day of product and we only have 17.1 million barrels of capacity in the United States.

CURWOOD: I’m confused here. If there’s so much demand why are we short of refining capacity? If your industry can sell a lot of gasoline why won’t folks have the plants to refine it?

SLAUGHTER: Well, it’s very difficult to build heavy industrial facilities in the United States. It’s very difficult to get through the permitting process and to get new refineries built. We’ve been adding capacity at existing refining sites but there have been times over the last ten years when that has been difficult to do. The other factor that’s been very important is that for the past 15 years before 2003 the return on investment in refining was very small. It is only in the past two years when refining margins have improved and we think we’re going to see a big uptick in refining investment this year. But that just was not the case in the last several years and it takes a few years to bring capacity online.

CURWOOD: Why is the refinery business so highly regulated?

SLAUGHTER: Well, you know, there are a number of environmental restrictions that come out of the Clean Air Act; there are also the Clean Water Act and, you know, it’s just the refining industry has always been very pervasively regulated and most of the regulations are environmental.

CURWOOD: As I understand it, environmental critics of the refining industry say that these new refineries, in fact, would be pretty clean. Is that a fair assessment?

SLAUGHTER: Yeah, I believe all of us would agree that new refineries would be pretty clean and, of course, even the existing refineries have considerably improved their environmental performance with newer technologies that have been installed. But the new refineries, unfortunately it is very difficult to build these facilities in the U.S., would be the cleanest of all.

CURWOOD: I understand that some folks would like to see the environmental regulations relaxed for a refinery. That, in fact, maybe a federal rule imposed over the matrix of state rules that now govern it. How do you feel about that?

SLAUGHTER: What people are talking about is that the permitting process for changes in a refinery, such as adding additional capacity, currently can take two years and the process could be shorter. I mean if, as Congress seems to feel now, there is a national interest in having more refining capacity in the United States, the question is whether, as Congress has just done in the case of liquified natural gas facilities, if the state permitting process is taking a great deal of time and just seems to have no end and the national interest in having facilities is not being recognized, you could give a federal department the authority of looking at that process and the determinations in deciding whether it should grant the permit.

CURWOOD: Bob Slaughter is president of the National Petrochemical and Refiners Association in Washington, DC, Bob, thanks for taking this time with me today.

SLAUGHTER: Thanks for the opportunity, I appreciate it.

Related links:
- National Petrochemical and Refiners Association
- Refinery Reform Campaign

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[MUSIC: Colleen “The Golden Morning Breaks” from ‘The Golden Morning Breaks’ (Leaf Label – 2005)]

Hola CAFÉ

CURWOOD: There’s a new theme in the auto showroom these days: gas mileage.
Even light trucks and SUVs are being pitched with such lines as “the best fuel economy in its class.” It’s not just the car industry that’s touting fuel conservation. With the Hurricane Katrina gas price shock, gridlock around better mileage may be breaking on Capitol Hill, as well. Living on Earth's Ingrid Lobet reports.

LOBET: Just over a month ago, Congress concluded a years-long effort, setting the country's energy direction. It opted mainly to encourage more oil and gas production and not to force automakers to produce more fuel-efficient cars and trucks. After that energy bill was signed, the Bush administration veered gently toward conservation, with a plan to require light trucks and SUVs to get better mileage. Then came Hurricane Katrina. Representatives Edward Markey and Sherwood Boehlert saw an opening and reintroduced a fuel efficiency bill that's been slowly gaining support for four years.

BOEHLERT:: It would raise federal fuel efficiency or CAFE standards for cars and trucks from today's average of 25 miles per gallon, to at least 33 miles per gallon over the next 10 years.

LOBET: Members of Congress are hearing from constituents angry about fuel prices. Senator Pete Domenici is chair of the Energy and Natural Resources Committee.

DOMENICI: I believe we must take another look at CAFE standards. We looked at ‘em and they were an impossibility because of the politics of it. I’m not sure that will be the case after Katrina

LOBET: "CAFE" is short for corporate average fuel economy. Each carmaker, like GM and DaimlerChrysler, averages the fuel efficiency of all the cars it sells. For SUVs and light trucks, it must be no less than 21 miles per gallon and for cars--no less than 27.5. Senator Domenici's opinion rings loud because he used to oppose stricter mileage mandates.

And there are other new voices joining the miles per gallon chorus. AAA, the 48 million member consumer organization, has often opposed pollution control measures, and laws that would force change on carmakers. But CEO Robert Darbelnet says its time to increase vehicle mileage.

DARBELNET:: We clearly need more fuel efficient vehicles if we are going to be less reliant on what is a limited quantity of refined gasoline, and one of the ways of doing that is encouraging manufacturers to make more fuel efficient vehicles.

LOBET: AAA wants the very heaviest passenger vehicles regulated. Vehicles in this class, like Hummers, currently violate no standard if they get 10 miles to the gallon. So, what are the chances that Congress will pass stricter fuel economy standards? David Jenkins of the group Republicans for Environmental Protection says it often depends on the lawmakers from prime car country--Michigan.

JENKINS: The Democrats are lobbied by the labor unions that represent the automobile industry and the Republicans are lobbied by the automobile industry themselves.

LOBET: A change in mileage standards could also depend on what happens with offshore drilling. There’s increased pressure for drilling right now, but it’s currently banned except off the Gulf Coast. Senator Domenici and others suggest there might be a tradeoff—higher fuel performance in exchange for the chance of drilling miles offshore New Jersey, California and Florida.

For Living on Earth, I'm Ingrid Lobet

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[MUSIC: Patty Griffin “Reprise” from ‘1000 Kisses’ (ATO – 2002)]

CURWOOD: Just ahead: A major re-write of the Endangered Species Act is under way on Capitol Hill, but not everyone agrees on the language going into it. First, this Note on Emerging Science from Jennifer Chu.

[SCIENCE NOTE THEME MUSIC]

Emerging Science Note/Salt-Resistant Rice

CHU: The Chinese have grown rice for more than 4,000 years. In several Asian languages the words for rice and food are identical. We don’t know what the original rice plants looked like, or what their genetic makeup was, but today there are thousands of different strains.

Rice is China’s major staple crop but, over the years, agricultural development and the use of pesticides and fertilizers have made much of China’s land too salty to farm. About 20 million acres of Chinese soil have salt levels that make the soil poisonous for crops. With rising population and industrial development, these areas are expanding. But scientists may have come up with a solution: salt-resistant rice plants.

At the State Key Lab of Plant Molecules in Shanghai, scientists have successfully cloned a gene from an ancient variety of salt-resistant rice native to the Shanghai region. When rice grows in salty soil, natrium hydronium, a variety of salt, accumulates in the stalks and leaves and kills the plant. But, the cloned gene boosts circulation of natrium down into the plant’s roots, allowing more nutrients to flow up. If this gene can be successfully cultivated in plants, all that highly salinized land could be put to use.

The results of the cloning research will be published in the Nature Genetics magazine in October, but it will be a while before we hear how the taste tests turn out. That’s this week’s Note on Emerging Science. I'm Jennifer Chu.

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CURWOOD: And you're listening to Living on Earth.

ANNOUNCER: Support for NPR comes from NPR stations, and: The Charles Stewart Mott Foundation, online at m-o-t-t dot org, supporting efforts to promote a just, equitable and sustainable society; The Kresge Foundation. Building the capacity of nonprofit organizations through challenge grants since 1924. On the web at k-r-e-s-g-e dot org; The Annenberg Fund for excellence in communications and education; and, The W-K Kellogg Foundation. ‘From Vision to Innovative Impact: 75 Years of Philanthropy; This is NPR, National Public Radio.

[MUSIC: AIR “Alone in Kyoto” from ‘Talkie Walkie’ (EMI - 2004)]

CURWOOD: It's Living on Earth. I'm Steve Curwood and coming up: Owls that sound like snakes, but first…

A Tune-up for the Endangered Species Act?

The endangered red-cockaded woodpecker. (U.S. Fish and Wildlife Service photo by Nancy Bell)

CURWOOD: Three decades after Congress moved to halt the rapid decline and extinction of animal species with the passage of the Endangered Species Act, Congress is taking another look at protecting biological diversity. Some say the Endangered Species Act is broken and is in need of significant fixes, ranging from new ways to list species to different ways to protect private property rights while managing habitat. Many scientists, lawmakers and landowners all see room for improvement but so far there doesn’t seem to be much common ground in their thinking. Living on Earth’s Jeff Young explores some of the new ideas and old conflicts at work in the latest push to remake this landmark law.

[NIGHT WOODS AND INSECTS]

YOUNG: You know the old saw about a bird in the hand. What’s that bird worth when it’s an endangered species?

MILLER: Stay still, sweetheart.

[RUSTLING OF BIRD IN NET]

YOUNG: Biologist Susan Miller gently handles a red-cockaded woodpecker she’s just netted in a North Carolina pine forest.

MILLER: And she’s about to just pop out of this bag.

[RUSTLING]

MILLER: Okay, so she’s got all color bands in place. All that’s left to do is let her go.

[NIGHT WOODS AND WALKING]

YOUNG: The newly banded bird skitters up a long-leaf pine to its nest cavity. Red-cockadeds are the only U.S. woodpeckers to carve their homes in living trees. It takes years. And most of their original forest habitat is gone.

Miller is part of the Fish and Wildlife Service’s effort to bring the woodpecker back from the brink of extinction. For the past decade, she’s had some help from some unlikely allies: private landowners.

[TRUCK DOOR SHUTS]

VOICES: Good morning. Good morning.

MALE: Have you seen any red-cockadeds recently?

YOUNG: Miller and a colleague visit Julian Johnson at his home on property where Johnsons have lived for four generations. They chat and watch hummingbirds and goldfinches from Johnson’s porch. There are also red-cockaded woodpeckers on his land. Not so long ago, Johnson says, a visit from federal wildlife agents would not have been so friendly.

JOHNSON: We would not be so happy to see them drive up (laughs). We’d be very concerned about what they might do to, you know, restrict our activity and come in and say, “I’m sorry but you’ve got birds here, you can’t do anymore of this pine straw raking or you can’t cut this timber.” We were really worried about that and would not have been nearly so hospitable 10 or 15 years ago.

YOUNG: Johnson says some landowners were clear-cutting trees to avoid what they called “infestations” of woodpeckers. But he says attitudes changed with an innovative program called Safe Harbor. Under a Safe Harbor agreement Johnson’s only responsible for the birds on the property when he signs up. He keeps his property in a state that’s good habitat for the woodpecker and when more birds show up, he doesn’t face any further property restrictions. Johnson says removing that fear and uncertainty freed him to both use his land and help the bird.

The endangered red-cockaded woodpecker. (U.S. Fish and Wildlife Service photo by Nancy Bell) JOHNSON: Now that I know I’m not gonna be penalized or face any undue restrictions by their presence on the land, we’re glad to see birds here now. And we’re happy to show other people what we’ve done, and making a visible difference in trying to save an endangered species. And there’s a lot of satisfaction to be obtained from that. [RAKING PINE STRAW] YOUNG: Johnson and many others in the pine forests manage their land for pine straw, a mulch for landscaping. The needles are most valuable when the forest floor is kept free of brushy undergrowth. Just so happens that’s what the woodpeckers like, too. It’s also pretty good habitat for the American golfer. [WHACK! OF GOLF CLUB] YOUNG: Mature long leaf pines border the greens of the Pinehurst Golf Resort, host to this summer’s U.S. Open Championship and home to several red-cockaded woodpeckers. Pinehurst Vice President Brad Kocher says with the Safe Harbor agreement, that’s okay. KOCHER: Golf courses and other landowners, we feel very comfortable, and I think more of the landowners and the golf courses are feeling comfortable now because they see what has happened. So rather than be real skeptical, I think they see that there’s a way that they can enhance the species without risking a whole lot. [WHACK! OF GOLF CLUB] YOUNG: Ten years ago, Pinehurst was the first property in a Safe Harbor program. Now, Safe Harbors shelter more than 300 landowners in 18 states, benefiting some three dozen species. Michael Bean of the conservation group Environmental Defense helped come up with the idea. He’d like to see the Endangered Species Act change to further encourage private landowners. BEAN: Most endangered species have most of their habitat on privately-owned land. If we’re going to recover these species we need to engage the owners of those lands in a constructive way. That’s a missing part of our endangered species strategy at present. Unfortunately, it’s not the part that the reforms have focused on so far. YOUNG: Reforming the Endangered Species Act has long been a goal for many in Congress. The Act is 32 years old and long overdue for reauthorization. This month will bring the most aggressive effort in years to dramatically change the landmark law. It’s led by California’s Republican Congressman Richard Pombo. POMBO: We spend hundreds of millions of dollars in public and private money every single year on implementing the Endangered Species Act and it’s a failure! It’s not working! YOUNG: Pombo chairs the powerful House Resources Committee and plans to introduce a bill this month to overhaul the Act. He supports more incentives for private landowners but he wants to do much more than that. He says his bill would change how species are listed and managed, and what science would be allowed in the process. He’s rallied his supporters in property rights and development groups with horror stories about the Act. In one case, Pombo says, the Act was responsible for the failure of a levee and a fatal flood in California in 1997. POMBO: Ten years before, the Army Corps had said if we don’t fix this we’re going to have loss of human life. The levee was not fixed because it was potential habitat for the elderberry beetle, which is, uh, which is an endangered species. There were no beetles there but there were elderberry bushes on the bank. And they spent 10 years arguing about how they were going to fix the levee and mitigate possible impact on elderberry bushes. In the meantime, we had a 100 year flood event, the levee did break, and three people died. YOUNG: Property rights and ranching groups reprint that story in their newsletters and web sites as evidence for a need to change the Endangered Species Act. But officials who investigated the flood say Pombo’s account doesn’t hold water. MOUNT: Unfortunately, Mr Pombo has most of his facts wrong on that one. YOUNG: Jeffrey Mount is a geology professor at the University of California at Davis and a member of California’s Reclamation Board. Mount says it’s not unusual for levee repairs to take years, even a decade. MOUNT: So, no, it wasn’t because there was an endangered species there at the levee. In fact, at the site where the levee broke, there weren’t any elderberry bushes, those happened to be upstream that he’s talking about. So, no, it wasn’t the problem. YOUNG: Pombo stands by his story and launches into other reasons to overhaul the Act. POMBO: Right now, in the state of California about 40 percent of the state of California is designated critical habitat for one endangered species or another. That is 40 million acres. According to Fish and Wildlife’s own numbers about six percent of species that are on the list they believe are extinct. I mean, even Fish and Wildlife’s own numbers show that the Act has failed. YOUNG: But Fish and Wildlife Service numbers do not support Pombo’s claims. The agency’s data show just about 10 percent of California land in critical habitat designations, not 40. And just about one percent of species on the list have been declared extinct, not six. Pombo’s most contentious claim is that the Act should be measured solely by the number of species it has fully recovered. At a press event, he pointed to a poster with a handful of scientific names. POMBO: You can see that there’ve been only 10 species which have been removed from the list and the rest of them have stayed on there. And that is just an abysmal record for us to look at and say we’ve got to be able to do a better job than what we currently are. YOUNG: The scientific journal Ecology Letters recently explored that idea in a peer-reviewed study of the status of threatened and endangered species. More than half on the list for five years or more have either stabilized or are improving. Michael Bean of Environmental Defense co-authored the study. BEAN: I think Mr. Pombo’s characterization that every species that hasn’t recovered is an example of the failure of the Act is a clearly erroneous characterization. On that list of many species that have yet to recover there are many species that are clearly making great progress toward recovery. YOUNG: Bean says damage to species and habitat took many decades, and recovery will, too. But the top Bush administration official in charge of the Endangered Species Act agrees with Congressman Pombo’s way of judging it. MANSON: Sure, that’s an excellent measure of success. YOUNG: Craig Manson is assistant secretary for Fish, Wildlife and Parks at the Department of the Interior. Manson also has some unorthodox views on extinction. MANSON: People want to believe that every extinction is a bad thing. They want to believe that we know that every extinction is a bad thing. And I’m suggesting that we don’t know that. There are hundreds of thousands of species that go extinct and some of those species we don’t even know when they go extinct. So we have no way of judging the consequences of the extinction of those species. YOUNG: Manson insists his opinion has nothing to do with his job of enforcing and implementing the Act. Some prominent scientists disagree. Conservation biologist and author Paul Ehrlich says Manson’s comments are at odds with the spirit of the Act. EHRLICH: I’m afraid that putting out rhetoric that questions whether or not extinctions are good or bad sets exactly the wrong tone for reconsideration of the Endangered Species Act. YOUNG: Ehrlich and other scientists wrote Congress urging them to strengthen the Act to guard against a looming extinction crisis. Many of the conservationists agree the Act could be improved but, for the most part, they do not trust the would-be reformers. University of Idaho law professor Dale Goble is working to find common ground. GOBLE: In some sense, this is sort of like the Israelis and Palestinians. You need to sort of do some confidence building measures. YOUNG: Two years ago, on the Act’s 30th anniversary, Goble brought together stakeholders from across the spectrum: from staunch environmentalists to property rights purists. GOBLE: What came out of it was a quite remarkable degree of consensus on a number of issues. Both the regulated community and the conservation community have gradually come to understand that there are ways that the Act can be improved. I’m somewhat optimistic. YOUNG: Goble says nearly all agreed on a need to simplify regulation, to build more local partnerships and to better fund species recovery. All of it sounds familiar to landowner Julian Johnson in the pine forests of North Carolina. [JOHNSON PORCH AND BIRDS] YOUNG: Johnson says he came to some of the same conclusions during his experience with the red-cockaded woodpecker. And he adds one other basic item. JOHNSON: When you do develop trust among maybe formerly opposing groups, then there’s a lot to be gained from that. At least some understanding can usually go a long way towards maybe settling some differences. And in our small way in our little corner of the world here maybe this could be an example that maybe someone else could learn from. YOUNG: Maybe Johnson’s Carolina hills hold a few lessons for Capitol Hill when it comes to living with endangered species. For Living on Earth, I’m Jeff Young in Southern Pines, North Carolina. Related links: - U.S. Fish & Wildlife Service – North Carolina Sandhills - Safe Harbor program - Congressman Richard Pombo’s homepage - Environmental Defense on the Endangered Species Act - Professor Dale Goble bio - Craig Manson bio - Craig Manson testimony on the Endangered Species Act, 2003 Back to top   Digging for Owls A baby burrowing owl and the entrance to its plastic burrow. (Photo: Dr. Jim Belthoff) CURWOOD: Think owl, think tree. But one species of owl, the burrowing owl, prefers the underground, and that has lead to some other unusual adaptations. From Idaho, Jeff Rice has our story. [SOUND OF DIGGING] RICE: It's well over a hundred degrees out on the Snake River plain in southern Idaho and biologist Jim Belthoff is digging for owls. [SOUND OF DIGGING] RICE: This is a study site on the Snake River Birds of Prey National Conservation Area a few dozen miles from Boise. The vast expanse of tan colored soil and sagebrush has one of the densest populations of nesting raptors in North America. Today, we're hoping to find some rare burrowing owls. [DIGGING] BELTHOFF: The owls will be down here in this chamber... RICE: Western burrowing owls are one of the smallest owl species and live in abandoned ground squirrel or badger holes in wide open areas like this one. [PASSING CAR] RICE: The field is next to a highway and seems barren. Mostly clay soil and hardly even any grass. Exactly the way the owls like it. BELTHOFF: They like areas with very little vegetation. Little or none actually is what they prefer. And the reasoning is that they can see any ground dwelling predators approaching their nest so they can get out of the way. RICE: It's a strategy that works. [OWL CALL] RICE: A tiny brown and white adult owl no more than ten inches tall spots us. He rises up on a pair of spindly legs, sounding a warning call. [SOUND OF CALL; DIGGING] A baby burrowing owl and the entrance to its plastic burrow. (Photo: Dr. Jim Belthoff) RICE: The rest of the owls are hunkered down, but we know right where to dig. Belthoff, a professor at Boise State University, has built some artificial plastic burrows. The owls have moved in and Belthoff can dig down to the lid and open the den up without too much trouble. BELTHOFF: Some footprints in front of this one, so we'll probably find some babies in here. RICE: Belthoff reaches his hand into the den to retrieve a bird and…suddenly… [SOUND OF SNAKE RATTLE] RICE: The sound is coming from inside the hole. [RATTLING] RICE: We know that this area is crowded with rattlesnakes, but Belthoff doesn't jump back. He reaches deeper into the hole, blindly feeling around. [RATTLING] RICE: He grabs something, coming out with a burrowing owl fledgling. The bird is about a month old. Its mouth is open and it is hissing at us. [RATTLING] A baby owl chick vocalizes. (Photo: Dr. Jim Belthoff) BELTHOFF: Burrowing owls have about 17 documented types of vocalizations, of which this rattle call or hiss is one of them. RICE: It's uncanny. Beltoff explains that it's something that only the juvenile owls will do. They haven't developed their ability to fly yet, so they need another way to ward off predators. BELTHOFF: It's a case of what's called “mimicry” in animals in where either the site of something or the sound of something sounds like something else and, in this particular case, it's a case of Batesian mimicry where the sound of something that's harmless actually mimics something that's harmful. [RATTLING] BELTHOFF: There's a lot of rattlesnakes in holes and so any potential predator that's coming up on this hole and sneaking down the tunnel would actually think twice, perhaps, if he hears a rattlesnake in there. Certainly, I feel some trepidation when I reach my arm down in there and I hear those rattles, and I'm hoping it's not a rattlesnake. [RATTLING] RICE: The owl's mimicry is effective against predators like badgers, but it can't protect it from its biggest threat, bulldozers and creeping human sprawl. Burrowing owls are considered threatened or endangered in a number of western states. The owls tend to live on wide open flat ground, a perfect place for shopping malls and parking lots. [PASSING CAR] Burrowing owl chicks in a bucket. (Photo: Dr. Jim Belthoff) RICE: That's why Belthoff is monitoring the birds, keeping track of their health and weight and tagging them to study their migration patterns. BELTHOFF: We band each one with an aluminum leg band, and then we give them three color bands, so when they sit up on a perch we can actually read those colorband combinations with a spotting scope. And we can tell who it is we're dealing with without having to capture them. [DIGGING] RICE: After the young birds are tagged, we cover up the owl den. An adult owl has been watching us from a fence post, probably the whole time, its call a bit less fearsome above ground. [CHIRPING] RICE: For Living on Earth, I'm Jeff Rice in southern Idaho. Related links: - Burrowing Owl (Cornell Lab of Ornithology) - Dr. Jim Belthoff’s website Back to top [CHIRPING AND MUSIC: Laura Veirs “Fire Snakes” from ‘Year of Meteors’ (Nonesuch - 2005)] CURWOOD: Next week on Living on Earth – Look out, Mother Earth! Astrophysicists say there's a giant asteroid headed our way. TYSON: This object, if it hits earth, and it will hit somewhere between Hawaii and California in, obviously, the Pacific Ocean. That hit will generate tsunamis on the level that has never been experienced in recorded history. CURWOOD: Well that's the bad news. The good news is the scientists say they can deflect the asteroid and save the planet. Find out how, next week on Living on Earth. [MUSIC:] CURWOOD: Living on Earth is produced by the World Media Foundation. Our crew includes Chris Ballman, Eileen Bolinsky, Jennifer Chu, and Susan Shepherd - with help from Christopher Bolick, Kelley Cronin, James Curwood and Michelle Kweder. Our interns are Ashley Ahearn, Brianna Asbury and Emily Torgrimson. Our technical director is Dennis Foley. Alison Dean composed our themes. You can find us at loe.org. I’m Steve Curwood. Thanks for listening. ANNOUNCER: Funding for Living on Earth comes from the National Science Foundation, supporting coverage of emerging science; and Stonyfield Farm, organic yogurt, smoothies and milk. Ten percent of profits are donated to efforts that help protect and restore the earth. Details at Stonyfield dot com. Support also comes from NPR member stations, and the Ford Foundation, for reporting on U.S. environment and development issues, and the William and Flora Hewlitt Foundation for coverage of Western issues. ANNOUNCER: This is NPR, National Public Radio.   Living on Earth wants to hear from you! Living on Earth 62 Calef Highway, Suite 212 Lee, NH 03861 Telephone: 617-287-4121 E-mail: comments@loe.org Newsletter [Click here] Donate to Living on Earth! 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