The amount of radical environmental litigation in the United States is staggering, and WildEarth Guardians is a driving force behind this movement. According to research conducted by the Budd-Falen law firm of Cheyenne, Wyo., from 2000 to 2009, just nine environmental groups, including WildEarth Guardians, filed 3,313 cases filed against the federal government for “enforcement” of environmental statutes. Many of these cases end up … are you ready? ... getting “settled” with the feds.
According to Budd-Falen, the system works like this: A radical environmental group like the Center of Biological Diversity (or, “CBD,” which recently petitioned NOAA Fisheries to list Klamath River spring-run Chinook salmon under the ESA) files federal court litigation against a federal agency like NOAA Fisheries, complaining that the agency failed to timely act on a petition to list a species. The environmental group cannot get the court to tell NOAA Fisheries how it should make its decision; the court can only require a “timely” decision be made. NOAA Fisheries loses the case because it almost never makes a decision in the amount of time required by Congress. The federal government then pays the CBD attorneys fees for filing the litigation. So, not only does NOAA Fisheries have to go back and remake its decision, your tax dollars paid an environmental group to sue the fishery agency.
Funds awarded to the “prevailing” litigants are taken from the “losing” federal agencies’ budget. There is no oversight in spending this money, which could otherwise be funding on-the-ground programs to protect public lands, national forests, wildlife and other land uses. Instead, nonprofit, tax exempt groups are making millions of dollars, while ranchers and other citizens are being forced to expend millions of their own dollars to intervene or participate in these lawsuits to protect their way of life when they have no chance of the same attorney fee recovery if they prevail.
Currently, nearly 1,400 U.S. species are listed under the ESA. Once a plant or animal is listed as threatened or endangered with extinction, federal officials must designate critical habitat for it and require review by USFWS officials for any federal action that could impact it. These reviews often come in the form of biological opinions, similar to the ones prepared every year on Klamath Irrigation Project operations by USFWS (for endangered suckers) and NOAA Fisheries (for coho salmon).
Under the proposed Obama administration settlement, USFWS officials will decide whether to add to the endangered list 251 species that are now classified as “warranted but precluded” from the ESA list. The settlement still needs to be accepted by the court, and it remains unclear whether the Center for Biological Diversity will sign off.
In this instance, the Obama administration has given what appears to be a significant victory to an obscure environmental group that filed a lawsuit for the purpose of creating a pretext for the administration to do this very thing. But the predictably enormous costs and all the other damage that will come from agreeing to these listings is completely unknown. All of those problems won’t be identified until after the 2012 election. And if President Obama is not re-elected, this mess will be dumped in the lap of his successor.
This whole settlement agreement would be laughable, if not for the fact that some of us in the rural West (Klamath Basin 2001 and 2010, San Joaquin Valley 2009) have seen firsthand the economic devastation that can occur when single-species biological opinions are actually implemented. With the WildEarth Guardian settlement, the government has agreed to pay attorneys fees – not just for the litigation but also for the petitions that were prepared to try to get the 251 species listed in the first place – to one environmental group who is not even the biggest ESA litigator in America. And while the WildEarth Guardians have agreed to limit listing petitions (not petitions for up-listings, not petitions to designate critical habitat, not challenges for failure to do recovery plans), none of the other environmental groups are bound by a similar limit.
Plus, if USFWS does not (1) follow the new work plan timetable or (2) come to what some environmental group thinks is the right conclusion on one of the 251 species ... federal court, here we come!
This settlement is simply another set up for failure that portends a grim future for western rural communities that rely on healthy agriculture and forestry economies.
But – it could prove to be a
great cash cow for environmental
attorneys ... all at the American
– Dan Keppen is the executive director of the Family Farm Alliance in Klamath Falls, Ore.