Earlier this week, making 2011 look just slightly less controversial for Endangered Species Act practicioners. the U.S. Supreme Court denied two petitions requesting for review of how federal regulators and courts consider the economic impacts of "critical habitat" designations. See New York Times. The decision leaves intact critical habitat designations for 8.6 million acres of the Mexican spotted owl habitat in Arizona, Colorado, New Mexico and Utah, and 860,000 acres of critical habitat for four crustaceans and 11 plants in California and Oregon.
But yesterday, a U.S. District Judge in Washington, D.C. asked the tough questions that reveal the depth of disagreement over polar bears, ESA implementation, and the use of the law to regulate greenhouse gases. Consider this excerpt from the Miami Herald article:
U.S. District Judge Emmet Sullivan... asked, what should be done when the primary threat to polar bears is the loss of their sea ice habitat? "How do we fix that?" he asked Kassie Siegel of the Center for Biological Diversity, the lead lawyer for the environmental coalition that's seeking to change polar bears' status from merely threatened to endangered.
"Deep and rapid greenhouse gas reductions," Siegel said. Her answer got at the heart of what environmental groups hope to do with their lawsuit: force the Obama administration to reconsider a rule that prohibits using the Endangered Species Act as a tool to regulate greenhouse gases.
Image from FWS available from Penn State
Despite the litigation news, a much more obscure legislative issue may prove far more significant in 2011. Earlier this month, the House of Representatives moved forward with efforts to reform the Equal Access to Justice Act, the statute frequently invoked by environmental organizations to require the federal government to pay legal fees and costs when the groups file successful citizen suits against the government. See TucsonHerald.com. The floor debate, as excerpted below, was remarkable.
Proposing the amendment, Rep. Cynthia Lummis(R-WY) said, in part as follows: this law has been hijacked by certain groups who use it to sue and recover judgments. For example, there are 14 environmental groups that have recovered $37 million by filing 1,200 lawsuits for which they’ve recovered judgments and even legal fees under settlements with the Federal Government, thereby fueling the fire of suing the Federal Government over sometimes procedural issues.
Arguing against the amendment, and for the continuation of federal funding for successful citizen suits, Rep. George Miller (D-CA) said as follows: The salmon don’t have a lawyer. But the harm to the fisheries, the harm to the small fishermen, to the small boat owners, the people who go out and brave their lives in the Pacific Ocean. When the Federal Government makes decisions about water flows and the Federal Government makes decisions about timber sales and when the Federal Government makes decisions about construction on the dam, they have a right to be heard.
Striking a more cautious note, but still supporting the amendment, Rep. Mike Simpson (R-ID) said as follows: You could actually lose the case for what you are trying to do. It is the problem that good intentions have gone awry. And I will tell you that there are groups all across this country who have seen this as a way to fund their organizations, and we need to put a halt to it. Because what we’re doing is asking the people of this country to fund people to sue them. I don’t know who else does that. But on the other hand, I agree with the gentleman that we want those people that don’t have the ability or the resources to have a say in how public lands are managed, to have a say in that. But it has gone awry, and we need to put an end to it, and we need to reform the process.
But Rep. Ed Markey (D-Mass) still noted his concerns: This amendment is overbroad, to use a euphemistic term, in order to describe what its impact will be upon those who are the least powerful, and most agreed in terms of the impact in which the Federal Government has upon their lives as individual citizens. As Rep. Markey also noted, the EAJA refoms had the potential to prevent people who were wronged by the government from recovering, including victims of atomic radiation, elderly Social Security recipients, veterans, and whistleblowers. And Mr. Markey concluded as follows: I rise just to make this very simple point so you all know what you’re doing. The law that this amendment wants to prevent funding for was a Ronald Reagan law. This is a law Ronald Reagan signed and put on the books, just so you understand. And of course the reason he put it on the books was that he sided with the little guy against the Federal Government. This is a way to make the Federal Government accountable. And recovery of attorneys’ fees and legal expenses is needed to ensure that the people can keep their own government accountable when they, the smallest of the small, are having the Federal Government intrude itself into their lives and bringing tremendous harm to the health and well-being of the families in any particular community in our country.
The amendment passed 232 yes to 197 no. See THOMAS.