Capital Press 12/14/11
The House Committee on Natural
Resources will be examining the effects of the
Endangered Species Act on job creation and
During the first of several
planned oversight hearings, committee chairman
Doc Hastings, R-Wash., criticized the statute
for becoming "a tool for excessive litigation."
The multitude of lawsuits has
drained the government's resources for actually
protecting species, he said during a hearing in
"The litigation mindset that is
consuming the Endangered Species Act has had
considerable job and economic impacts across the
West, unnecessarily pitting people against
species," said Hastings.
Critics of the ESA urged
committee members to make key changes to it.
The biggest reason the act has
been used to stop economic progress is that it
always places species above human welfare, said
Brandon Middleton, an attorney for the Pacific
Legal Foundation property rights group.
A 1978 U.S. Supreme Court
decision -- Tennessee Valley Authority v. Hill
-- has established species recovery as the
"highest of priorities," Middleton said.
In that case, the court found
that a dam project should have been stopped to
prevent harm to the endangered snail darter, a
As a result of that precedent,
federal courts cannot consider economic harm to
humans when evaluating lawsuits over alleged
Endangered Species Act violations, Middleton
Congress should amend the statute
so the needs of the human species are balanced
against the recovery of listed species, he said.
Karen Budd-Falen, a natural
resource attorney who has criticized
environmental litigation, said the ESA would be
more effective if the federal government had
more time to meet deadlines.
Under the act, the U.S. Fish and
Wildlife Service has three months to respond to
a petition that requests federal protection for
a species. If such a listing may be warranted,
the agency has a year to make the final
Environmental lawsuits largely
target the government's time frame for
evaluating species, rather than disagreeing with
a listing decision itself, she said.
Thousands of pending petitions
basically "crash" the system and prevent the
agency from working on other recovery measures,
like conservation plans with landowners, Budd-Falen
"The federal government can't
comply with these time frames," she said.
Proponents of the current ESA
system rejected the implication that
environmentalists view litigation as a
Representatives of the Center for
Biological Diversity and WildEarth Guardians --
common litigants in such cases -- said attorney
fees recovered from the federal government
comprise only a small portion of their budgets.
"We do not do this for the money.
We do this to protect species," said Jay
Tutchton, general counsel for WildEarth
Guardians. "We typically never receive what we
ask for. It's not a productive way to make a
According to the WildEarth
Guardians 2010 annual report, it received
$153,545 in legal fees. The Center for
Biological Diversity received $685,981 in legal
returns, according to its 2010 annual report.
Tutchton defended the practice of
suing the federal government for missing
petition deadlines, saying such litigation is
necessary to keep the government accountable.
"Deadlines are a method to force
recovery," he said. "It's the chronic disregard
of deadlines that has, for some species, kept
people from working on their recovery sooner."
Kieran Suckling, executive
director of the Center for Biological Diversity,
said the current program doesn't need to be
changed -- rather, more money would allow it
perform all the necessary functions so as to
prevent the need for litigation.
"In many regards, adequately
funding the current program is all that's
needed," he said.
John Leshy, a law professor at
the University of California-Hastings, said that
the federal government actually wins most of the
lawsuits accusing it of violating the Endangered
However, the federal courts play
the crucial role of a neutral decision maker, he
said. "I think it would be a terrible mistake to
take the courts out of it."