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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.

Reorganize NOAA, but not everything else?

02/21/2012

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The Obama Administration continues to explore the potential for moving the National Oceanic and Atmospheric Administration (NOAA) into the U.S. Department of the Interior. (n1) But real reorganization of our national environmental governance structure necessitates a consolidated U.S. Department of the Environment.

The President's merger proposal has its limitations. Preserving NOAA's scientific integrity and budgetary adequacy remain prominent concerns, (n2) and due to the looming opposition of Federal employee unions, and a partisan Congress, the proposal faces rough political waters. (n3) But it gets us thinking, too. Stepping back from the immediacy of the who-gets-and-who-loses math of Washington politics, an alternative perspective can be discovered.

In truth, the proposal is not ambitious enough. President Obama -- and everyone else -- wants a federal government that can better compete in the 21st century economy. (n4) Efficiency matters. So why just reorganize NOAA? A meaningful reorganization of environmental governance would not limit itself to only the two agencies implementing the Endangered Species Act.

Instead, we should consider creating a U.S. Department of the Environment. Stop splitting environmental and natural resources responsibilities all over the federal government, and start lumping them together. Begin by restructuring the Department of the Interior, and add the Environmental Protection Agency (EPA). OK, toss in NOAA. Boot the Army Corps out of wetlands regulation. Cut the Forest Service and Natural Resources Conservation Service from the Department of Agriculture. Transform the Department of Energy and the Tennessee Valley Authority. With all these entities consolidated, interagency conflicts would reduce. Eliminating expensive leadership and Senior Executive Service positions could achieve additional savings. Regional and field offices from multiple agencies could merge, saving on rent and facilities expenses.

 
Environmental advocates fear the potential short-term adverse effects of reorganizing, yet refusing to do so might be worse. NOAA (and other agencies) are already going through the early pains of adapting to a shrinking budget. Agencies are carefully thinking about their "core missions" and setting strategic priorities. As a result, some programs will be downsized or defunded. Regional offices will close. Staff will shrink. (n5) Moreover, if our nation plans to tackle its budgetary crisis, then the pain will soon get worse. In other words, the current path leads to death by a thousand cuts.

In contrast, a thoughtful reorganization of our environmental agencies could result in well-defined subsidiary organizations of greater stature, better equipped to deal with overlapping issues on an ecosystem scale. The Cabinet Secretary who presided over the new Department of Environment would command great respect from Congress, industry and stakeholders. From a raw politics perspective, the effort might also eliminate two common political targets, the Department of Energy and EPA, which would become parts of a greater whole. Our national environmental programs and functions could be rearranged along meaningful lines; just imagine: the National Lands Service, the National Oceans Service and the National Weather and Climate Service; the National Science Service, the National Environmental Regulatory Service, and the National Environmental Enforcement Service. Maybe even an Office of Environmental Partnerships, too.

Sadly, in the current political climate, this kind of rewriting of the American bureaucratic org-chart to consolidate environmental entities probably cannot happen. The status quo is powerful. (n6) Yet this is not a novel idea. In 2009, the U.S. Government Accountability Office evaluated the potential to move the U.S. Forest Service into the Department of the Interior. (n7) Countless intellectuals have envisioned alternative ways to organize or streamline our government. (n8) And there are international models for consolidation, too. (n9)

But in the United States, our Department of the Interior has accurately called itself the Department of Everything Else. (n10) A debate over adding NOAA to "everything else" involves incremental change, at best; creating a new era of environmental governance for the next century requires much bigger thinking. 


Maybe one day our nation will give sustainable environmental management and protection the comprehensive approach that it deserves.

Keith W. Rizzardi is a law professor at St. Thomas University, Chair of the Marine Fisheries Advisory Committee, and Special Counsel to Jones Foster Johnston & Stubbs, P.A.
Follow his "Keithinking" about the Endangered Species Act @ESAlawyer

___
NOTES:
(1) Government Executive.
(2) ESA blawg, but see also, National Marine Sanctuary Foundation and Natural Resources Defense Council.  
(3) Washington Post, and Red Lodge.
(4) The Hill
(5) Compare proposals: NOAA 2013 Budget Statement and EPA budget cuts; AP wire story says GOP wants deeper cuts.
(6) See Washington Post.
(7) See, Observations on a Possible Move of the Forest Service into the Department of the Interior GAO-09-223 (Feb 24, 2009)
(8) See, e.g. Congressional Research Service(discussing historic efforts); Charles Woods (reorganizing the Federal Government for WWII); Creating a Government That Works Better & Costs Less; the US Ocean Commission and the Pew Oceans Commission (advocating an Oceans entity) and Chris Joyner (rethinking international environmental organizations).
(9) Compare Environment Canada (Air, Climate Change, Enforcement, Environmental Emergencies, Nature, Pollution and Waste, Science and Technology, Sustainable Development, Water, Weather and Meteorology) and Natural Resources Canada (Earth Science, Energy, Forests, Minerals, Metals).
(10) Department of Everything Else

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Keith Who?

Keith W. Rizzardi, a Florida lawyer, is board certified in State & Federal Administrative Practice. A law professor at St. Thomas University near Miami and Special Counsel at Jones Foster Johnston & Stubbs in West Palm Beach, he previously represented the U.S. Department of Justice and the South Florida Water Management District. A two-time Chair of The Florida Bar Government Lawyer Section, he currently serves as Chair of the Marine Fisheries Advisory Committee

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

(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)

The purpose of the Endangered Species Act is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

16 U.S.C. §1531(b)

Reasons for the ESA

1. ECOLOGICAL: Species have a role in the web of life. Who knows which missing link causes the collapse?

2. ECONOMICAL: Species have actual, inherent, and potential value -- some as food, others as tourist attractions. As Congress said, these species have "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation." 16 U.S.C. §1531(a).

3. MEDICAL: Although perhaps a subset of economics, medical reasons for the ESA deserve special note, because today's listed species could be tomorrow's cure for cancer.

4. MORAL: With each extinction, we take something from others. We must prevent "the tragedy of the commons."

5. THEOLOGICAL: Even the Bible instructed Noah to save God's creatures, male and female, two by two.

Reasons for ESA Reform

1. ECOSYSTEM (MIS)MANAGEMENT. The ESA encourages selective review of individual species needs, even though nature pits species needs against one another. Furthermore, the ESA's single-species focus detracts from efforts to achieve environmental restoration and ecosystem management.

2. SCIENTIFIC UNCERTAINTY: While the ESA requires consideration of the "best available science," sometimes the best is not enough, forcing decisions under great uncertainty. The ESA, however, is generally proscriptive, regulatory, and absolute; as a result, it insufficiently allows for adaptive management.

3. LITIGATION: ESA implementation is at the mercy of the attorneys. Cases involving one listed species can serve as a proxy for hidden agendas, especially land use disputes, and regardless of actual species needs, litigation and judicial orders set agency priorities. In the end, realistic solutions disappear amidst court-filings, fundraising, and rhetoric.

4. PRIVATE LANDS: Up to 80% of ESA-listed species habitat is on privately owned lands. While the ESA can place reasonable restrictions on private property rights, there are limits. But the best alternatives have limits too, such as Federal land acquisition and the highly controversial "God Squad" exemptions.

5. FUNDING: Protecting species is expensive, but resources appropriated by Congress are limited. An overburdened handful of federal agency biologists cannot keep pace with the ESA's procedural burdens, nor court-ordered deadlines (see #3 above). Provisions requiring agencies to pay attorney's fees to victorious litigators -- who challenge the hastily written documents prepared by overworked bureaucrats -- simply exacerbate the problem.

"Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of the larger assemblage." An insect with no apparent commercial value may be the favorite meal of a spider whose venom will soon emerge as a powerful and profitable anesthetic agent. That spider may in turn be the dietary staple of a brightly colored bird that people, who are notoriously biased against creepy crawlers and in favor of winsome winged wonders, will travel to see as tourists. Faced with the prospect that the loss of any one species could trigger the decline of an entire ecosystem, destroying a trove of natural and commercial treasures, it was rational for Congress to choose to protect them all. -- Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1274-75 (11th Cir.2007), cert. denied, 128 S.Ct. 8775 (2008), quoting Edward O. Wilson, The Diversity of Life 308 (1992).

"This case presents a critical conflict between dual legislative purposes, providing water service for agricultural, domestic, and industrial use, versus enhancing environmental protection for fish species whose habitat is maintained in rivers, estuaries, canals, and other waterways that comprise the Sacramento-San Joaquin Delta… This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans... No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance may be appropriate, so long as it will not further jeopardize the species or their habitat." -- The Consolidated Delta Smelt Cases, 2010 WL 2195960 (E.D.Cal., May 27, 2010)(Judge Wanger)(addressing the need for further consideration of the human consequences of ESA compliance).

Notable quotables

"A nation, as a society, forms a moral person, and every member of it is personally responsible for his society." – Thomas Jefferson (1792)

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"The destruction of the wild pigeon and the Carolina parakeet has meant a loss as sad as if the Catskills or Palisades were taken away. When I hear of the destruction of a species, I feel as if all the works of some great writer had perished."

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"Conservation means development as much as it does protection. I recognize the right and duty of this generation to develop and use the natural resources of our land; but I do not recognize the right to waste them, or to rob, by wasteful means, the generations that come after us." – Theodore Roosevelt (Aug. 31, 1910)

Noah's orders

GENESIS, Chapter 6: [v 20] "Of the birds according to their kinds, and of the animals according to their kinds, of every creeping thing of the ground according to its kind, two of every sort shall come in to you, to keep them alive. [v 21] Also take with you every sort of food that is eaten, and store it up; and it shall serve as food for you and for them."

GENESIS, Chapter 9: [v12] "And God said, This is the token of the covenant which I make between me and you and every living creature that is with you, for perpetual generations"

"The power of God is present at all places, even in the tiniest leaf … God is currently and personally present in the wilderness, in the garden, and in the field." – MARTIN LUTHER