BACKGROUND ON THE ESA Signed into law during the Nixon

Administration on December 28, 1973, The ESA’s mission statement provides for

the conservation of species that are endangered or threatened and the conservation of the ecosystems on which they depend. The ESA replaced the Endangered Species Conservation Act of 1969; it has been amended several times since 1973.

A "species" is considered “endangered” if it is in danger of extinction throughout all or a significant portion of its range. A “threatened” species is one likely to become an endangered species within the foreseeable future.

There are approximately 1,880 species listed under the ESA. Of these, approximately 1,310 are found in part or entirely in the U.S. and its waters; the remainder are foreign. This includes wildlife and plantlife.

Nearly 1200 animals and 750 plants.

BACKGROUND ON THE ESA Since ESA enacted, less than one percent of listed

species have gone extinct since 1973, while 10 percent of candidate species still waiting to be listed have suffered that fate (Source: Science, September 30, 2005)

In addition to the hundreds of species that the Act has protected from extinction, listing has contributed to population increases or the stabilization of populations for at least 35 percent of listed species, and perhaps significantly more

ESA listing is responsible for the recovery of many species of animals that would have gone extinct without protection.

Examples of these ESA success stories include:

BACKGROUND ON THE ESA Peregrine Falcon

Species was threatened with extinction as result of biomagnification, due to widespread use of pesticides as DDT, which interfered with reproduction cycle, causing thin eggshells and fragile eggs that did not survive to hatching..

Removed from ESA listing on August 25, 1999 after successful breeding and reintroduction programs by FWS and ban of widespread use of pesticides as DDT

Because of remedies of ESA, numbers increased from 324 to 1,700 pairs between 1975 and 2000 (Source, Center for Biological Diversity)

BACKGROUND ON THE ESA American Bald Eagle

Species was threatened with extinction as result of biomagnification, due to widespread use of pesticides as DDT, which interfered with reproduction cycle, causing thin eggshells and fragile eggs that did not survive to hatching.

Removed from ESA listing on June 28, 2007 after successful breeding and reintroduction programs by FWS and ban of widespread use of pesticides as DDT

Because of remedies of ESA, numbers increased from 416 to 9,789 pairs between 1963 and 2006 (Source, Center for Biological Diversity)

OVERVIEW OF THE ESAOVERVIEW OF THE ESA ESA is administered by two different agencies who

share responsibility for its implementation: FISH & WILDLIFE SERVICE (FWS)

Administered by Secretary of the Interior, the FWS has responsibility for terrestrial species, freshwater species and some marine species [sea otters and marine birds]

FISHERIES SERVICE of NATIONAL OCEANOGRAPHIC at ATMOSPHERIC ADMINISTRATION (NOAA) Administered by Secretary of Commerce.

NOAA has responsibility for most marine species and anadromous fish

ESA commands all agencies to “conserve” listed species Defined as activities necessary to recover

species to the point at which they no longer need the protection of the Act

SECTION 4 OF THE ESA §4 states that a species becomes protected under

ESA when it is listed by an agency through Notice & Comment rulemaking Secretaries of Interior and Commerce are to use

“best available science” in determination of which species merit listing.

RECOVERY PLAN §4 also requires Secretary of Interior to “develop

and implement plans for conservation and survival of listed species – unless a recovery plan won’t promote conservation of the species

Priority is given to those species “most likely to benefit from such plans.

Recovery plans must incorporate to “the maximum extent practicable:” RP must contain a description of such site

specific management actions as may be necessary to achieve the RPs goals for the conservation and survival of the species

RP must contain objective measurable criteria for when species may be removed from list

RP must estimate the time and cost of the measures needed to achieve the goal and intermediate steps to reach goal [delisting].

SECTION 7 OF THE ESA § 7 applies specifically to federal departments and

agencies. Federal agencies must not act in a way that would

“likely jeopardize the continued existence of” a listed species” or which would “result in destruction or adverse modification of [designated critical] habitat.

CONSULTATION DUTY Action agency may ask FWS whether any listed

species found in action area, if answer is no and no impact on listed species or critical habitat, their action may move forward. Jeopardy will be found if key habitat is

modified whether or not designated as critical.

INFORMAL CONSULTATION If action may affect a listed species or critical

habitat, the action agency prepares a BIOLOGICAL ASSESSMENT (BA)

If on basis of BA, agency concludes contemplated action is “not likely to adversely affect” listed species, then FWS may either: Issue written concurrence in the

determination Suggest modifications that the action

agency take to avoid likelihood of adverse effects to listed species

SECTION 7 OF THE ESA (CONTINUED)

FORMAL CONSULTATION (FC) FC is between action agency and FWS. The

outcome of formal consultation is a BIOLOGICAL OPINION [BO] If BO shows jeopardy is likely, it must

include reasonable and prudent alternatives [RPAs] if any to avoid these effects.

Formal consultation can result in findings of no jeopardy, jeopardy with reasonable and prudent alternatives or jeopardy without such alternatives.

Congress foresaw that §7 would require agencies to alter ongoing projects in order to fulfill the goals of the ESA GOD SQUAD” Exemption

Result of TVA v Hill, a 7 member cabinet level committee responsible for granting or denying an exemption to §7 prohibitions, available as last resort option, because other alternatives usually available. Rarely initiated and only twice

granted.

SECTION 7: CRITICAL HABITAT Only 10% of listed species under ESA

have a designated critical habitat. ESA defines critical habitat as:

Places where the species currently live which are essential to recovery and may require special management considerations

Areas outside the places currently occupied by the species but that are essential for recovery.

Mainly because this is an expensive and laborious process to designate CH.

Secretary must considered the probable economic or other impacts on human activities resulting from the critical habitat designation. Even then, the secretary may

exclude area from critical habitat if benefits of exclusion outweigh the benefits of inclusion, unless a failure to designate CH would result in species extinction.

CRITICAL HABITAT (CONTINUED)

Agencies are reluctant to designate critical habitat since budget for designation comes from same budget as listing; they view species listing as more important than critical habitat designation. Loss of critical habitat is one of the

primary reasons species become threatened and endangered (i.e. Polar bears and the arctic)

Only that habitat designated through notice and comment rulemaking requires protection under the ESA’s critical habitat provision

This designation guides federal agencies in fulfilling obligations under Section 7 per TVA v. Hill

SECTION 9 §9 prohibits “taking” of a listed species by

anyone, whether the government is involved or not. ESA broadly defines “take” to include direct

harms through habitat modification under certain circumstances. Defined as “harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct”

INCIDENTAL TAKINGS (ITP) §9 takings may be avoided by receipt of an

“incidental take permit” under §10 HABITAT CONSERVATION PLANS (HCP)

ITP is issued upon secretarial approval of a conservation plan/habitat conservation plan (HCP), which shields land within it from some or all of §9 liability

Secretary must find that plan includes steps that the applicant will take to minimize and mitigate the impacts of the incidental take “to maximum extent practicable” and applicant will ensure adequate funding for HCP will be provided.

SECTION 9 (CONTINUED) HABITAT CONSERVATION PLANS

FWS must ensure incidental take will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.

HCP’s are not used on federal land; federal agencies get equivalent protections through “incidental take statements” included in biological opinions prepared as part of formal §7 consultation where any taking of listed species incidental to agency action is not likely to jeopardize listed species or result in destruction or adverse modification of critical habitat

ISSUES AND CRITICISM OF ESA Though the ESA has arguably had success

in its goal of species conservation. It has likewise faced its share of criticisms on several fronts: Economics Property Rights Scientific Criticism Flexibility in Face of Litigation

Given these criticisms, the issue arises: Is the ESA in need of reform/amending in light of these claims?

We will address these arguments on both sides

ECONOMICS BENEFITS AND COSTS

Economists define efficiency as a policy that creates the greatest positive net benefits for society today and into the future

It is not know whether the ESA is efficient today or will be efficient into the future. 

Many economists agree that the current ESA structure has not been cost-effective under the incentives built into §7 (jeopardy) and §9 (taking)

The question of efficiency cannot be answered because there is no national estimate of the private social benefits or the cost of the act.  Estimating private benefits

derived from species protection (i.e. commercial use, consumptive use, and recreation) using tangible market prices is possible but has not been done on a national level.

Based on regional and local studies it seems that the ESA involves a transfer of wealth rather than a loss of wealth.

ECONOMICS Proponents of keeping ESA unchanged

Private costs should not be decisive because species are irreplaceable – the benefits of having them are priceless.

Species habitat has other purposes other than human financial gain.

Landowners are free to pursue private profits so long as they behave as responsible social citizens. 

By definition, land and species habitat are already in public service.

Therefore, all land uses should be designated as “harm-preventing” rather than “public-good-providing”

Dr. Mark Sagoff, a Pew Scholar in Conservation and the Environment and President of the International Society of Environmental Ethics, has stated that “the conviction that the freedom to wring the last speculative penny from one’s land seems to be grounded less on argument than on assumption.” 

The implied benefits of the ESA goals are inestimable

ECONOMICS Proponents of changing ESA

– Private costs should not be born by single individuals or single industries.

– The cost to farmers is immediate and concrete. The benefits to the public are non-quantifiable and abstract. A farmer or developer knows how much his land is worth and the effect is unavoidable. The public, for the most part, values protecting the environment but it is difficult to harness their desire to help endangered animals.

– Most economists agree with us that we could provide for MORE species protection at a LOWER cost if there was a system that worked with private landowners.

ECONOMICS ESA Benefits

Private benefits from the ESA include commercial use, consumptive use, and recreation.

CONSUMPTIVE USE: New pharmaceutical products derived

from plant and animal tissue, including from endangered species are being explored.

Examples: The drug vincristine is derived

from a rare plant called rosy periwinkle and is used to treat leukemia

The drug taxol is derived from the Pacific yew and is used to treat ovarian cancer. 

Biotechnology is growing quickly It is impossible to predict all potential

benefits of rare species Keeping all species serves as

ecosystem insurance

ECONOMICS Commercial Benefit of commercially

and recreationally harvested species is straightforward: Fishing and hunting expenditures

amounted to $60 billion in 1996 NOAA reported in 2004 that

marine recreation fishing supported 350,000 jobs and generated $30.5 billion in economic impact in the U.S.

Commercial and recreational salmon fishing in the Pacific Northwest helps support 60,000 jobs and over 1 billion in personal income in the region.

ECONOMICS Eco-Tourism

California Whale watching earns $200 million a year.

Global ecotourism expenditures were estimated at $90-200 billion in 1998 with 15 percent spent in N. America. 

– One problem with Ecotourism is that in general there are only certain popular species and not many endangered insects or fungi will be saved. 

– However, even focusing on certain “cute” or “majestic” species brings more awareness to the plight of endangered species in general. 

ECONOMICS It is almost impossible to know how

people will value species in 2017, 2027, or beyond, yet we are making choices today that will bear an impact on future generations. 

We have to err on the side of caution and while the ESA may sometimes seem to harm the economy, we cannot now know what we are investing in for the future. 

ECONOMICS ESA Costs

– The ESA does not represent an economic cost, which would be a decrease in the economic pie. 

– However, the economic impact of the ESA is still serious and the effects are seen through opportunity costs.

– Opportunity costs are perhaps the best measure of potential drag on the economy. 

– Opportunity costs are foregone opportunities due to restrictions on the use of land because of listings, designation of critical habitats, and recovery efforts. 

– Costs include:

» Reduced economic rents from restricted or altered development projects, agricultural production, timber harvesting, minerals extraction, recreation activities, wages lost by displaced workers who remain unemployed or who are reemployed at lower wages, lower consumer surplus due to higher prices, and lower capital asset values.

» Example: Bonneville Power Administration estimated that it expended $350 million on Salmon conservation in 1994 (1% of its revenue).

– $300 million represented the opportunity cost of lower power revenues. 

ECONOMICS• Some research would seem to indicate that the

ESA does not harm the economy: – One study showed that there was no

relationship between ESA listings and either construction employment or gross state product between 1975 and 1990.

– Alabama with 75 listings had a booming economy, while Louisiana with 21 did poorly. 

• But this likely does not take into account opportunity costs. – A study by Real Estate Professor Glen E.

Crellin, in 2002, found that if there are at least 4 listed endangered species in an area, there is a substantial decline in the price of single-family homes.

ECONOMICS• The best way to look at the economic impact of

the ESA is in terms of opportunity costs, meaning the money lost due to restrictions on the use of the land.

• Most commonly, opportunity costs occur in the form of:

• Reduced economic rents from restricted development projects

• Lost agricultural production, timber harvesting, mineral extraction, or recreation activities

• Wages lost by displaced employees, lower consumer surplus due to higher prices, and lower

capital asset values.

ECONOMICS• For example, Bonneville Power Administration, which is

headquartered in Portland, OR and provides electricity to large portions of the Pacific Northwest, spent $350 million in 1994 for salmon conservation. This amounted to one percent of their revenue. Approximately $300 million of that was in the form of opportunity costs.

• Another study attempted to demonstrate that there was no relationship between ESA listings and either construction employment of gross state product between 1975 and 1990. – Alabama had 75 ESA listings and a booming

economy whereas Louisiana had only 21 listings but a poor economy. However, there is no way to predict the outcome on either state's economy under different ESA restrictions – in other words, the opportunity costs are only speculative. (Meyer 2001)

• On the other hand, a 2002 study by Crellin found that if there are four or more endangered species in an area, there is substantial decline in the price of single-family homes.

ECONOMICS• ESA ignores the economic rule of scarcity – resources are

limited and setting aside even a portion of the United States solely for endangered animals is likely to seriously impede landowners. – Fish and Wildlife Service requires landowners to meet

demands of species living on their land yet offers them no economic incentive to do so.

– Economists have determined that there is a link between increasing wealth and interest in protecting the environment – the more money people have, the more interested they are in protecting the environment.

– In this sense, endangered species are sort of the BMW of causes—the more expendable income people have, the more likely they are to buy into protecting wildlife. » Economists have found that a 10% increase in

income leads to a 25% increase in citizens' willingness and ability to pay for environmental measures. (Stroup)

ECONOMICS• Private agencies have done a much

better job of harnessing that interest whereas the current ESA encourages animosity towards the agency by putting a high burden on private landowners.

• This imbalance creates the unintended effect of encouraging private landowners to take action that harms the endangered species. The landowners are motivated to do this in order to avoid land use regulations under the ESA.

ECONOMICS– In many cases for landowners, the one time cost of destroying a

habitat that may attract endangered species is preferable to maintaining the habitat and increasing the possibility that an endangered species might make their home on the land, thus requiring more money to be spent by the private landowner in order to comply with land use regulations.

– Different theorists have suggested payment to private landowners including full compensation for private land use losses, payment equal to the public value gained through conservation, and government purchases of lands under eminent domain.

– President Bush proposed a new recovery credit system on October 20, 2007. It is intended to create incentives for private landowners and is based on a pilot program tested at Fort Hood in Texas.

– According to the Fish and Wildlife Service, the “recovery crediting system gives federal agencies flexibility to offset the impact of their actions on threatened and endangered species found on federal lands by undertaking conservative actions on non-federal lands, as long as the affected species receive a net conservation benefit.”

– Currently, this program only applies to federal agencies but the government is seeking public input on whether expanding it to state governments and private landowners would be feasible.

PROPERTY RIGHTS CLAIMS / “TAKINGS” The 5th Amendment states: “nor shall

private property be taken for the public use, without just compensation.

Section 9 applies to everybody, and prohibits “takings”

PROPERTY RIGHTS CLAIMS / “TAKINGS”• Three impact types

– 1. ESA directly bars activity on private land

– 2. ESA limits one’s ability to protect property

– 3. ESA limits commercial dealings in members of species that are acquired before they were listed.

PROPERTY RIGHTS CLAIMS / “TAKINGS”• The process of the ESA

– Incidental Take Permits (Section 10) “if such taking is incidental to, and not the purpose of, carrying out of an otherwise lawful activity.”

– Habitat Conservation Plan (HCP) Have to do as much good as the harm you are creating, may mean you have to conserve another part of your land.

PROPERTY RIGHTS CLAIMS / “TAKINGS” Landowner can sue the government

for taking of his land– Claim must be “ripe” – Must be an almost total

elimination of economic use on the entire parcel.

– Must be a direct impact on the property

– Only one Court has found a “taking”

PROPERTY RIGHTS CLAIMS / “TAKINGS” Section 7 applies if there is federal involvement

(Federal funding, permit) FWS or NMFS must prepare a Biological

Assessment Then if no other alternatives can issue a

Incidental Take Permit Federal action can be exempted by the

“God Squad.” Must find no reasonable and prudent alternatives to the agency’s action, and action benefits must clearly outweigh the benefits that would conserve the area or species.

This whole process leaves a lot of discretion to these agencies to decide how to proceed and what restrictions to place.

The ESA creates perverse incentives

SCIENTIFIC CRITICISM• Why is the science behind the ESA an

issue?– Section Four of the Endangered

Species Act mandates the use of the “best available science” when determining which species to list.

– The use of science is supposed to keep the ESA fact based and free from political bias, but Controversy about political interference with what should be an entirely scientific exercise

– Inseparability of scientific and political questions.

SCIENTIFIC CRITICISM• For-Change Points

– Economic hardship should not befall people unless it is absolutely necessary.

– Species listing can create devastating economic hardship. This should not occur on any basis other than objective, unbiased, peer-reviewed science.

SCIENTIFIC CRITICISM• Why Sound Science is Necessary

– Failure of the current mandate to ensure that the Fish & Wildlife Service and NOAA fisheries are not making decisions which impact thousands of lives based on incomplete science and pseudoscience.

– The lack of peer review of agency decisions is antithetical to the most essential tenets of science.

SCIENTIFIC CRITICISM• Failure of the mandate to create certainty:

– The Concept of “Species”:» “Species” is a vague, ill-defined

concept. This ambiguity in results in crucial decisions under the act being made using pseudoscience.

» The ESA as it is now requires that species be a cut and dried concept, but the taxonomy of a species often cannot be determined. (Source: Temple Environmental Law and Technology Journal)

SCIENTIFIC CRITICISM• Example: The Red Wolf

•  In the Boston College law review article “THE ENDANGERED  SPECIES ACT: WHAT DO WE MEAN BY SPECIES?” it is explained  that, for the red wolf, “four possible taxonomic solutions are possible. The  red wolf could be a full species, or it could be a subspecies of the gray  wolf, or a subspecies of the coyote or a hybrid between the gray wolf and  the coyote.”

• Should a hybrid be as protected as an endangered species as their parent strains?

• The ESA affords more protection to a species than a subspecies.

• How can the FWS or NOAA determine what species to list, what habitats to remove from human use, and who should be punished for a “takings” of an endangered species when the distinction is often indeterminable?

• The ESA should be amended so that a pseudoscience under a spurious concept doesn’t govern whether important

resources are put to productive use.

SCIENTIFIC CRITICISM– Failure of the mandate to prevent abuse: The

“Canada Lynx Survey”• (source: U.S. General Accounting Office Investigation

http://www.gao.gov/new.items/d02496t.pdf)

– A federal interagency group undertook a three year survey in 1999 to determine the presence of the Canadian Lynx for listing consideration.

– The agency performed tests on DNA samples collected from suspected Lynx territories, and if positive samples were found in territories not previously listed as lynx territory, a follow-up survey would be done to determine if lynx populations existed in the area.

– There were four instances of unauthorized samples tested that were not a part of the Wentachee and Gifford Pinchot National Forests, but were submitted as a part of the survey of those forests

SCIENTIFIC CRITICISM– The statement of Ronald Malafi, acting managing

director of the office of special investigations reveals that:• The scientists who submitted these false

samples claimed they did it to test the accuracy of the testing methods, but this was not normal protocol for the National Survey.

• More importantly, there was no protocol for scientists to notify testers of these unauthorized submissions, and the scientists who submitted the unauthorized samples did not disclose their actions until the end of the Forest Service investigation.

• Data used in agency determinations is too easily manipulated by scientists with a protectionist agenda. The ESA must be amended so abuses and manipulations don’t impact the lives and property of American citizens.

SCIENTIFIC CRITICISM– Failure of the Mandate to enforce sound science: Klamath River

Basin Debacle

– (Source: Oversight hearing before the Committee on Resources)

– The Klamath River basin supplied water to 1,400 farmers and over 200,000 acres of farmland.

– In 2001, the F&WS issued biological opinions determining the Klamath dams to be harmful to three species of endangered fish, and closed them in order to increase water flows. Over the course of three months destroyed crops and caused direct losses over $135 million, and caused long term loss in excess of $200 million.

– Lush acreage of crops and habitat for many species became dry and barren due to the closure of the dam.

– The National Academy of Sciences reviewed the data used to mandate the dam closures and found “no substantial scientific foundation” for raising the water levels to protect the fish, and in fact higher water levels could actually harm the endangered species because of fluctuation in water temperatures.

– The livelihood of thousands of farmers should not be destroyed based upon faulty science. The ESA should be amended so this can never happen again.

SCIENTIFIC CRITICISM– The Necessity of Peer Review– (Source: Washington Law Review Article, 81 Wash. U. L. Rev 1)

– Peer Review entails independent validation of claims made by scientists.

– Peer Review is the cornerstone of scientific study. – Greg Walden (R-Or.): “If you went to a doctor and he

said to you, “we are going to have to take off your right leg,” you'd probably want a second opinion. Right now under the Endangered Species Act plants, animals, and people don't have the chance to seek a second opinion; you just get cut off at the knees.”

SCIENTIFIC CRITICISM– Points Against Changing the ESA

• The ESA was purposely crafted for flexibility, with the benefit of the doubt to species threatened with extinction.

• The proposed revisions to the Endangered Species Act are not revisions to increase scientific integrity, they are intended to cripple the act with only economic considerations in mind.

• The proponents of “sound science” revisions are sensationalizing a few instances to push an agenda to gut the ESA.

SCIENTIFIC CRITICISM– Incomplete Data: A Consequence of the Nature of

Science

– When Congress enacted the ESA, it did so with the knowledge that science is imperfect, and agencies would have to make decisions based on imperfect data. The broad “best science available” mandate reflects this. (See: Greenpeace Action v. Franklin, Blue Water Fisherman's

Ass'n v. Nat'l Marine Fisheries Serv) – Low populations of endangered species means limited

data – Cannot wait indefinitely for more data before acting,

postponing action until perfect science is attained and species disappear is contrary to the goals of the ESA. (Bennet v. Spear)

SCIENTIFIC CRITICISM– Examples of ESA’s scientific failures are misleading:

The proponents of “sound science” revisions are sensationalizing a few instances to push an agenda to gut the ESA. • How many “Klamaths” are there? • The Klamath incident is touted as a prime example

of the grand failings of the ESA. But there is not an abundance of such examples.

• Was the Klamath policy truly a bad policy? • It was never proven that low water flows were not

the culprit in the Klamath fishkills. • Some environmentalists assert that scientists

reviewing the ESA’s support were paid for by agribusiness to assert deficiencies in the reasoning of low water flows causing the fishkills. (http://www.oregonwild.org)

SCIENTIFIC CRITICISM– The Canada Lynx Survey–  Politicians threw scientists under the bus to push their anti-

environmentalist agenda. (http://magazine.audubon.org/incite/incite0205.html)

– Blind samples are a part of rigorous lab experiments to ensure scientific accuracy. A competent science would not need specific protocol instructing him or her to submit one when testing accuracy is in question. “’Submitting blind samples is part of doing rigorous science,’ said the Wildlife Conservation Society's John Weaver.”

– Elliot Norse, president of the Marine Conservation Biology Institute and a founding life member of the Society for Conservation Biology, said, "These scientists did what researchers routinely do when submitting samples to analytical laboratories."

– "It shouldn't be an issue at all," said Richard Reading, director of conservation biology at the Denver Zoological Foundation and co-chair of the advisory team for Colorado's lynx restoration program. "They should have a right to verify the lab results. I think it makes all the sense in the world."

– Quote from Yale Professor Tim W Clark: “[b]ecause environmental problems often bring quality of life issues and decisions about future generations into stark contrast with immediate monetary interests, resolving environmental issues often requires unpleasant or even tragic decisions that involve painful personal or societal sacrifice.” 

SCIENTIFIC CRITICISM– Safeguards against administrative abuses already exist.

Subjecting science-based administrative decisions to heightened peer review would be costly, unjustified, and unnecessary.

– The current procedure for listing endangered species is already taxing on the limited resources of the FWA and NOAA.

– As of today, the Fish & Wildlife Service has placed 1120 species on the endangered list, there are three proposed species, and 278 candidates for listing.

– The ESA already does not have the resources to send these numerous candidate species through the listing process. Having to devote resources to the peer review of each administrative listing decision would keep the FWS from protecting even more species.

SCIENTIFIC CRITICISM– The FWA and NOAA already have stringent

administrative requirements in place to make their determinations:

– “A. In the following endangered species activities, it is the policy of the Services to incorporate independent peer review in listing and recovery activities, during the public comment period, in the following manner:

– (1) Listing – (a) Solicit the expert opinions of three appropriate and

independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population models, and supportive biological and ecological information for species under consideration for listing;

– (b) Summarize in the final decision document (rule or notice of withdrawal) the opinions of all independent peer reviewers received on the species under consideration and include all such reports, opinions, and other data in the administrative record of the final decision.”

– Persons who feel wronged by agency actions taken under the ESA have remedies in the courts, where arbitrary and capricious administrative action is not sustained."

SCIENTIFIC CRITICISM• Conclusion

– It is obvious that environmentalists and business interests are at odds with implementation of the ESA, but perhaps a middle ground can be forged from looking at the merits of both arguments. Perhaps random peer review from independent, disinterested parties could assure that the agencies decisions are not arbitrary and capricious, while at the same time not prevent the FWS and NOAA from listing species in imminent danger.

LAWSUITS AND THE ESA The Issue?– The ESA Citizen Suit Provision has been interpreted

very broadly by the Supreme court (Bennett v. Spear) to allow “any citizen” to bring forth a lawsuit. This has brought forth litigation from both environmentalists attempting to enforce the ESA and from individuals with commercial interests which are being affected by the ESA.

– The issue is now: should the ESA stay the same and remain liberal by allowing “any citizen” to bring forth a lawsuit; OR should the ESA be amended to limit the amount of lawsuits being filed?

LAWSUITS AND THE ESA What is the Citizen Suit Provision? Section 11 of the ESA– Any person may bring an action against

another person, including the federal government, alleged to be in violation of the ESA. 16 U.S.C. 1540(g)(1)(A).

– Citizens also can sue the Secretary to compel performance of a non-discretionary duty arising under section 4. 16 U.S.C. 1540(g)(1)(C).

– The ESA authorizes courts to award costs of litigation to plaintiffs, including reasonable attorneys fees and expert witness fees. 16 U.S.C. 1540(g)(4).

– The Citizen Suit Provision can also be found in other environmental laws. Proponents claim that it gives environmental laws teeth.

LAWSUITS AND THE ESA– The Citizen Suit Provision is Necessary

• Coalitions of regulated businesses affected by new legislation typically lobby the agencies to delay its implementation or to adopt strained interpretations of the law that will lessen their regulatory burdens.

• Groups and citizens can ensure the agency is complying with federal law.

• By empowering individual groups and citizens to directly enforce the law Congress has written, Congress creates an important check on the agencies ability to subvert Congress’ will.

LAWSUITS AND THE ESA– Lawsuits Help Protect Species

• A majority of all endangered and threatened species listings have been the direct result of citizen enforcement

• From 2000-2003, the only listed species were a result of lawsuits

• A coalition of conservation groups released a report in 2005 that notes that the Bush Administration has not listed a single species absent a court order or threat of a lawsuit.

LAWSUITS AND THE ESA– Lawsuits– In Calvert Cliffs Coordinating Committee, Inc. v. U.S.

Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir 1971), Judge J. Skelly Wright stated that:• Congress meant to control the destructive aspect of

material progress.• The purpose should not be lost or misdirected in the

halls of bureaucracy.• The Citizen Suit Provision is an effective tool that

ensures the objective.

LAWSUITS AND THE ESA– Lawsuits– Benett v Spear

• The Supreme Court reversed a Ninth Circuit decision which dismissed cattle ranchers challenge under the ESA.

• The Ninth Circuit Dismissed the case on the ground that their commercial interests were not in the “zone of interests” of the ESA.

• Congress did not only intend to allow people who sought to be protected under the ESA to sue. “Any person” could bring forth a suit.

• Is this holding correct?

LAWSUITS AND THE ESA– Lawsuits– Benett v Spear

• The Supreme Court was incorrect in Bennett v. Spear when it expanded the zone of interest test. Their holding is contrary to the purpose of the ESA.

– IMPLICATIONS OF THE HOLDING:• Increase in litigation brought by commercial entities

that claim the Act over-regulates them. • Might affect other Citizen Suit Provisions in other

environmental acts.• Is not within the Spirit of the Law. It shifts attention

away from protecting species to commercial interests.

– However, this holding is good news for private property owners being affected by the ESA!

LAWSUITS AND THE ESA– Conclusion– The ESA should not be amended to bar citizens from

bringing forth a suit against the agencies.– The Citizen Suit Provision is an important tool to ensure

that the agencies are complying with the Act.– Congress can address the lawsuit problem by increasing

funding to the agencies. The agencies will be able to better comply with deadlines and mandates with additional funding.

– How do you deal with the flood of litigation and the Bennet v. Spear holding without amending the ESA?• It’s only a court decision -- Get the Court to change

its mind.

LAWSUITS AND THE ESA– Why should the Citizen Suit Provision be amended? – The Problem with Lawsuits

• The ESA is overwhelmed by lawsuits challenging agency decisions under the APA and by lawsuits claiming under-enforcement/over-enforcement under Section 11 of the ESA (the Citizen Suit Provision).

• Rather than spending funds on recovering species, budgets are dominated by costs related to litigation.

• FWS reports that as much as 2/3 of its budget for placing endangered species on the protection list is consumed fulfilling court orders or settlement agreements

LAWSUITS AND THE ESA– More Problems With Lawsuits

• Priorities are being set by litigation rather than through legislation.

• Litigation also undermines the intent of congress.

• Additionally, the ESA authorizes courts to award costs of litigation to plaintiffs, including reasonable attorneys fees and expert witness fees adding to the cost of litigation. 16 U.S.C. 1540(g)(4).

LAWSUITS AND THE ESA– Problems with the Citizen-Suit Provision

• Bennet v. Spear: the Supreme Court held that the ESA’s citizen-suit provision negates the zone-of-interests test of prudential standing by broadly providing that “any person may commence a civil suit” to enforce the ESA.

• The industry is able to sue under the ESA claiming too much restriction—weakens the law.

• The ESA is increasingly being “run” by the priorities established through litigation. The congressional “purpose” is being lost.

LAWSUITS AND THE ESA– Solutions?

• Amend the ESA: change “any person” and limit the citizen suit provision to people within the “zone of interest.”

• Get rid of the Citizen Suit Provision?– The Bush Administration sought to eliminate funding to

enforce lawsuits, aiming to take care of the problem. Although citizens still could sue, the Fish and Wildlife Service could not spend any money enforcing the results of the suit, effectively making them meaningless. Not the solution!

LAWSUITS AND THE ESA– Conclusion

• Although citizen-suits were allowed by Congress in order to facilitate implementation of the act, the lawsuits are doing more harm than good by depleting valuable agency resources that could be used to list and protect more species and habitat.