Some of the major and sensible changes in how Pennsylvania conducts threatened and endangered (“T&E”) species review for environmental permitting—which began when I was Secretary at DEP—are seemingly coming to fruition in the state legislature right now.
Even before I took office, permit applicants voiced their frustrations over the cumbersome, non-transparent, and time-consuming nature of the review process. These frustrations are born out of 1) the secretive ways in which the Game Commission and Fish & Boat Commission treat T&E information, and 2) how the review processes of both commissions are siloed, disorganized, disjointed, and excruciatingly drawn out.
To put it simply, the system is hopelessly fractured. Moreover, after studying up on this problem when I was Secretary, it became clear that the current system does not even do an optimal job of protecting T&E species.
All of this is aggravated by the elephant in the room—the fiefdom mentality of the Game Commission and Fish & Boat Commission, where protecting turf and power prerogatives permeates. Unfortunately, despite our best efforts, the Executive Branch could only do so much to bring order to the situation. Legislation was needed.
We now have two parallel bills in the House (HB 1575) and the Senate (SB 1047), both called the Endangered Species Coordination Act, which were introduced this summer and may see action this coming fall. The co-sponsorship of both bills is remarkably bipartisan and geographically diverse. The bills, among other things, would standardize the process for listing T&E species, require coordination, and grant more transparent access to information so planners can maximize conservation efforts for their permitted activities. Also, the bills would finally require the two commissions to do what every other agency of the commonwealth government does: follow constitutional due process and the Commonwealth Documents Law in promulgating regulations and decision making.
Predictably, both commissions have expressed their opposition with the overstated claims that protection will be reduced. In reality, protection will be enhanced and they know that. The opposition really boils down to their objection of having to follow the law in decision-making, being transparent, and having their decisions be subject to review. In other words, they would have to give up unchecked, unshared, and in many cases, unreviewable power. We need to remember, though, what Madison said in the Federalist Papers: “… government must be obliged to control itself.”
This will be a heavy lift in the legislature because both commissions will get their backs up to protect their turf and stoke up advocacy groups to fight the bills full bore under the guise of protecting T&E species. But at the end of the day, the Endangered Species Coordination Act is a common-sense law aimed at increasing transparency, reducing territoriality of government agencies, coordinating requirements and communications, having agencies live by the law and comply with due process, and increasing protections.
This is one moratorium on “fracturing” that would well serve the Commonwealth.