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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Endangered Species Act tweetings: shooting owls, rhinos, and mountain lions | Main| Two Ninth Circuit Opinions, Twenty Years of Litigation, and a Twinge of Deja Vu »

House Oversight Hearings: merely theater, or a preview of Endangered Species Act reform?

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Yesterday, a House Natural Resources Subcommittee held an oversight hearing on the 2013 budgets proposed by the National Oceanic & Atmospheric Agency and U.S. Fish & Wildlife Service. Understandably, some members of Congress were unhappy with requests for an increase in funding compared to prior years. “After examining these budgets, it is clear that none of them reflect the reality of our current economic situation… they are frankly not serious documents,” said Subcommittee Chairman John Fleming (R-LA). But the hearing turned upon the Endangered Species Act, and Natural Resources Chairman Doc Hastings’ (R-WA) voiced frustration with increased spending on ESA implementation and litigation:

“As our nation faces a $15.5 trillion debt that grows by over $4 billion every day, the two agencies appearing today are responsible for managing national fish and wildlife and marine resources and are requesting a combined total of over $200 million more than together they received last year -- including for more Endangered Species Act (ESA) listings and regulations. Regrettably, the sizable portion of these agencies’ budgets that already goes to managing endangered species programs focuses less on prioritizing and recovering species than on paying costly attorneys’ fees, avoiding and defending procedural lawsuits, meeting court deadlines, and responding to court orders stemming from the agencies’ own poorly drafted rules and regulations.”

In truth, ESA related spending is a tiny fraction of the federal budget; less than 2 percent of all federal funds are spent on conservation. As U.S. Fish & Wildlife Service Director Dan Ashe explained in his written comments: “The budget includes $179.7 million to administer the Endangered Species Act, an increase of $3.7 million when compared with the 2012 enacted level. This includes a $1.5 million increase for renewable energy consultation, $1.0 million for science for pesticide consultation, and $400,000 for cooperative recovery of endangered species on wildlife refuges and in surrounding ecosystems.” (The written comments offered by NOAA Administrator Jane Lubchenko contain no mention of the ESA. Instead, NOAA’s request focused on the need for satellite services to support weather, climate and coastal science.)

Given their power over the federal purse, the Congressional members' concerns with $197 million are justified, but the suggestion that the agencies are the problem is unfair. The agencies are simply doing what the law (and courts) require them to do. The Endangered Species Act sets rigid deadlines for review of every petition to list a species. Eventually, if the petitions are not acted on, litigation follows. And upon review, the courts have no choice but to order the agencies to follow the law that Congress passed, and to order compliance with the deadlines in the ESA. For better and for worse, the recent settlements with WildEarth Guardians and the Center for Biological Diversity, and the accompanying costs, simply reflect the realities of the statutory scheme. (See FWS) And over time, the result of this proces (as a map cited by Rep. Hastings colorfully suggests) is an increase of listed species in each state.

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Map from the House Natural Resources Committee webpage

Sooner or later, the Congressional frustration will lead to reform. The risk, however, is reform that goes too far... and that would truly be a waste. The Congressional findings that supported the Endangered Species Act in 1973 are just as valid today.  As Congress found and declared, four decades ago: "(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." 16 U.S.C. §1531(a). Given these findings, the ESA was intended "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. §1531(b).  But the worthy ambition to save, protect and recover species creates substantive and procedural problems, too.

In substance, the policy choices in the ESA create what the Congressional Research Service calls conflicting values. In other words, the ESA forces humans to forego their ambitions and desires to benefit other species. While it may be easy for a crusading urban environmentalist to demand a sacrifice, the pain is felt more acutely by the rural farmer whose access to water is denied. So one of the fundamental problems with the Endangered Species Act, one that arises again and again, is a fundamental disagreement over whether, and to what extent, humans should sacrifice to protect other species. Ted Williams of Audubon Magazine passionately believes that all species have inherent value deserving of protection; but other humans disagree, including the Pacific Legal Foundation.  To reconcile the conflicting values, and especially the tension between preservation and property rights, ESA reform must include -- gasp! -- compromise. We humans may have "dominion" over the Earth, but the governance of a ruler cannot and should not be a path to self-destruction. Humans must serve as stewards of our planet. See, e,g. Mere Environmentalism.

The process created by the ESA to achieve that stewardship is also burdensome, and like humanity, imperfect. Listing determinations, critical habitat designations, consultations, permits, litigation, attorney's fees, enforcement and compliance: these activities demand substantial human and financial resources. And the burdens of providing these resources fall upon industries, landowners and taxpayers who are then motivated to oppose the ESA's goals. In fact, many actions by the environmentalists to obtain protections for an imperiled species simply trigger new outrage from other people who endure the additional burdens and who do not appreciate the value of the species (or maybe even its ecosystem). See, e.g. Klamath Bucket Brigade.  Furthermore, the lawsuits filed by environmental advocates fail to serve as a procedural tool for shaping values. While they might achieve the short term goal, the long-term conflict remains. The values conflict becomes even more entrenched.

Compounding the substantive and procedural difficulties of ESA implementation is the reality of uncertainty. The ESA's reliance upon the ambiguous "best scientific and commercial data available" concept is intentional, but such flexibility comes at a price. Every decision can be second-guessed. To manage biological diversity IS to manage uncertainty. There is no single right answer; indeed, the ESA itself refers to the agency's most significant management document as a "biological opinion." For our interactive and human-dominated planet, there is no absolute biological answer.  In a radically changing world of climate change and exotic species invasions, not every species can be saved. Death and extinction is the only certainty, and the Sixth Wave is underway. As these inevitable changes have their effects, more and more species will need to be listed for protection, and the ESA conflicts will grow with impossible intensity. In that not-so-distant future, reform of the ESA seems a far better outcome than repeal.

Previously, ESAblawg suggested a three part plan for ESA reform. First, Congress could create a process that enables the U.S. Fish & Wildlife Service, and NOAA Fisheries, to set the order of species priorities, based on Congressionally established criteria, rather than litigating every listing petition that is filed by a concerned group. See ESA blawg, discussing "bulk petitions.". Second, Congress could reform the citizen suit provisions of the ESA, along with perverse attorney's fee-shifting provisions that create incentives to sue the government. See ESA blawg (discussing fees litigation) and ESA blawg (discussing settlement disincentives). Third, if Congress is going to allow species to go extinct, it could be more honest about that choice, streamline the process, and again, specify criteria. Delisting decisions would then allow the agencies to divert their limited funds from one hopeless species to another species that might survive.  See ESA blawg (discussing triage).

Sadly, empowering the government to make the terrible decision to allow a species to go extinct creates equally intolerable risks. Any attempt at ESA reform must include some mechanism allowing for checks and balances upon abuses of executive power. That point was demonstrated by Ms. Julie MacDonald, a former Department of Interior senior official during the Bush administration who abused her authority and pressured scientists to change their opinions to conform with her politically-preferred outcomes. See ESA blawg on "the Big Mac attack." As the Department of Interior's own Inspector General concluded, the federal official charged with supervising ESA implementation had violated her basic obligations of public service. See, Report of Investigation, Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks (posted by the Center for Biological Diversity here)

The internet contains many proposals to reform the Endangered Species Act. Many proposals are, as expected, from the affected interest groups: the National Endangered Species Act Reform Coalition (NESARC); the American Enterprise Institute; land and livestock producers. On the other hand, even the U.S. Fish & Wildlife Service has its own webpage dedicated to "improving ESA implementation". Nevertheless, Congressional reform of the ESA is already underway, using an incremental approach. The Natural Resources Defense Council Switchboard blog has worried about legislative maneuvers to evade ESA application to salmon, otters and more, and Congress has used budget riders to delist the wolf in some states. See ESA blawg.

Ultimately, the recent Congressional hearing might produce nothing but noisy political theater, but it also has the potential to generate large scale reform. For the moment, the environmental advocacy groups appear to be adhering to the status quo.  But five years ago, when Congress last considered ESA reform, one citizen wrote a letter to the High Country News with a prognostication: "I believe that blind opposition to any reasonable reform of the Endangered Species Act is eventually going to lead to unreasonable reform."  Sad, and probably true.