WASHINGTON — The latest battle in the war over the lesser prairie chicken came in the U.S. House.
For more than a decade, private landholders in western Kansas have pushed back against federal efforts to protect the bird, which scientists say is on the path to extinction.
And so federal lawmakers from Kansas turned to one of the few tools they can wield against federal legislation — the Congressional Review Act.
Last week, the House approved a resolution expressing its disapproval of the Department of Fish and Wildlife’s rule placing the lesser prairie chicken on the endangered species list, in an effort to eliminate the rule and prevent a new one. President Joe Biden has pledged to veto the resolution, which passed the Senate in May.
The vote, coupled with another resolution rejecting the addition of the northern long-eared bat — which lives in parts of Canada and most of the eastern half of the United States — to the endangered species list, were the latest examples of Congress using a 90s-era law to slap down environmental rules issued by the Biden administration.
Since January, Congress has approved seven resolutions to express its disapproval of a federal rule. Four of the seven resolutions have been attempts to strike down environmental protection rules.
An additional resolution disapproving of an environmental rule — one that gave the National Marine Fisheries Service wider latitude when it comes to designating a “critical habitat” — has already passed the Senate and will likely pass the House.
The efforts are concerning environmental groups, which say they’re coming in a moment where there’s widespread public support for environmental protections. A March Gallup poll found that 56% of Americans think the government is doing too little to protect the environment and only 18% said it was doing too much.
“The congressional attacks on Endangered Species Act are somewhat dumbfounding to us because there’s really a puzzling mismatch between the strong public support for wildlife and the science-based decision-making that is the foundation of the Endangered Species Act and the high volume of political attacks now occurring in Congress,” said Robert Dewey, the vice president for government relations at Defenders for Wildlife, a non-profit focused on defending wildlife and native plants.
Conservative lawmakers, many of whom aim to peel power back from the executive branch to give it to Congress, say they’re pushing back against environmental rules because they believe it’s a place where the Biden administration has overstepped amid efforts to meaningfully address climate change and the environmental crises that come with it.
“The Biden administration has been extremely aggressive on environmental regulations and it is having a serious impact on the private sector and downstream, it has a serious impact on we as consumers,” said Rep. Eric Burlison, a freshman Missouri Republican. “I think that when people see prices at the pump going up and when they see things on the shelf being too expensive you have to start asking the question, why is it costing more and more just just to get things done?”
The battle over the lesser prairie chicken between private landholders in Kansas and environmentalists has been waged for years. The prairie chicken was first put on the endangered species list as a threatened species in 2015, only to be removed from the list, after a court ruling in Texas.
Between 2015 and 2021, voluntary efforts helped grow the population. Each year, there were more birds in the grasslands of Western Kansas, picking at bugs, seeds and grain. Then the drought hit. Between 2021 and 2022, the population fell and in November of that year, the Department of Fish and Wildlife announced that it would put the lesser prairie chicken on the endangered species list.
The birds that lived New Mexico and western Texas were listed as endangered. The birds that live in Kansas, Colorado, Oklahoma and a small slice of the the northern panhandle in Texas were listed as threatened.
Lawmakers — spurred by the oil and gas industry, farmers and communities that would have their property rights limited by efforts to protect the bird — pushed back on the order, as have some Kansas farmers and communities.
Last month, a group of Kansans filed suit against the U.S. Department of Fish and Wildlife in order to overturn its rule on the lesser prairie chicken — similar to how the courts were able to get off the 2015 designation.
They argue that the new rules put strict restrictions on how people can use their land, in the fear that it may inadvertently harm a lesser prairie chicken. Many of their farmers have set aside land for native grassland — initiatives that are incentivized by the U.S. Department of Agriculture — and they feel that they’re being punished because now there will be stricter rules about how they can use that land in the future.
“This is really a sort of separation of powers concern,” said Charles Yates, the attorney representing the Kansas farmers and counties. “Administrative agencies like the Fish and Wildlife Service don’t have inherent power over the lives of ordinary Americans. They exercise power or implement laws that are passed by our elected representatives in Congress. Really, Congress is the policy maker here.”
If Congress had its way, the lesser prairie chicken would be off the endangered species list as would the northern long eared bat. The Biden administration would not be able to set a rule saying the federal government has a say over non-surface waterways that connect to navigable water, called Waters of the U.S. And the Environmental Protection Agency’s attempt to toughen air pollution standards on new cars would be tossed.
“I wish I could tell you that it’s only the Endangered Species Act, but it really is across the board,” said Raul Garcia, the vice president of policy and legislation at Earthjustice, a legal nonprofit focused on environmental issues. “You know, we’ve seen resolutions on the Clean Air Act, we’ve seen resolutions on the National Environmental Policy Act. So it’s not unique to ESA.”
To do so, Republicans had to rely on Democrats, who still control the Senate. Sen. Joe Manchin, a Democrat from West Virginia, has crossed the aisle to support several of the measures bucking the Biden administration’s rules and was the only Democrat to vote in favor of the lesser prairie chicken resolution.
In the House, four Democrats crossed the aisle to support the disapproval resolution on the lesser prairie chicken’s listing, including Rep. Sharice Davids, a Kansas Democrat, despite voting against the resolution that would eliminate protections for the northern long0eared bat and supporting the Recovering America’s Wildlife Act, which gives resources to conservation efforts.
“Rep. Davids voted alongside the other members of the Kansas House delegation to support Kansas farmers’ and ranchers’ ability to run their business, and trusts the state to adequately consider both the priorities of Kansas’ agriculture professionals and proper conservation efforts,” said Zac Donely, a spokesman for Davids.
But while environmental policies have been the easiest place to find the bipartisan support to send the resolutions to Biden’s desk, where they have been vetoed, conservatives see it as a way to send a political message about his administration’s rule-making efforts.
“Both the House and the Senate, the Republican majority in the House, the Democrat majority in the Senate, are recognizing that some of the regulatory overreach coming out of the Biden administration is being done incorrectly and it’s not meeting congressional intent,” said Rep. Ron Estes, a Kansas Republican.
Sen. Eric Schmitt, a Missouri Republican, has made “dismantling the administrative state” as one of his primary goals in office and believes the Congressional Review Act doesn’t go far enough in giving Congress the ability to limit rules.
Schmitt said he thinks the push back against environmental regulations is coming because those agencies have been particularly active in promulgating rules.
“It’s probably more of a reaction to the rules that are coming down and I think that’s the point,” Schmitt said. “I’d like this to go further, but the CRA is a good place to sort of push back.”
But environmentalists are concerned that the environment is where Republicans have been able to push back. Garcia pointed out that often the rules being contested are ones that aim to reduce emissions or could get in the way of the oil industry’s efforts to dig oil wells.
He said because of the way it’s written, the Congressional Review Act is a blunt instrument that eliminates rules, rather than a way to have a discussion to improve the rules.
“We’re dealing with an environmental injustice crisis, we’re dealing with a climate crisis and a biodiversity crisis all at once,” Garcia said. “And it’s really sad, right, that that’s what the Republican Party is meaning to do, is just to have these blunt instruments that take away the regulation in a very irresponsible way, instead of having an adult conversation about what these regulations should actually look like.”
