The Endangered Species Act: An Industry of its Own?
According to the Pacific Legal Foundation, the Endangered Species Act is more powerful than the constitution. See ESA blawg (April 30, 2008). Conversely, according to the Center for Biological Diversity, the ESA is not working, because what took 3 billion years to evolve is vanishing in the blink of an eye. Forgive my cynicism, but I can't help but notice that both of these not-for-profit organizations want your donations and activist support. Lawsuits are simply part of their business model.
In 2001, Congress authorized the Army to expand Fort Irwin, leading to the relocation of about 770 tortoises, from newly acquired Fort Irwin land slated for training use to unoccupied public land. However, the desert tortoise is listed as a threatened species under the Endangered Species Act. Moving the tortoises requires handlers to wear gloves to avoid spreading disease. The animals also tend to urinate while being handled, leading them to potentially become dehydrated, according to Desert Tortoise Council handling guidelines. The Center for Biological Diversity claims that in the relocation, healthy tortoises were mixed with diseased populations and that the new habitat is inferior. Caption information from the Desert Dispatch, and photo by David Miller from USGS.
When Congress passed the ESA in 1973, it probably didn't realize the degree to which it would empower Federal judges to serve as peer review panels for the conservation biology decisions made by the U.S. Fish and Wildlife Service and NOAA Fisheries. Rather, in an effort to encourage groups to seek compromises with the Federal government before filing lawsuits, Section 11 of the Endangered Species Act, 16 U.S.C. 1540, includes a requirement that concerned citizens and groups send a 60-day notice of intent to sue before courts can assert jurisdiction over a case or controversy.
Unfortunately, in today's reality, the chances of the FWS or NOAA actually engaging in settlement discussions is often slim to none, for three reasons. First, given the years of internal wrangling that takes place within the government before ESA-related decisions are finally made, political will to settle these cases is very limited. Second, litigation has become so routine that Federal officials are numb to it, and in fact, even if they wanted to work on a settlement, the abundance and demands of competing litigation leaves no time for the task. Finally, the plaintiffs actually have a disincentive to settle, because in order to encourage "citizen attorneys general" to enforce the law, another provision in Section 11 of the ESA, as well as the Federal Equal Access to Justice Act, empowers courts to pay the attorney's fees for federal litigants who achieve even a small degree of success. Thus, Plaintiffs' lawyers have an incentive to file the lawsuit first, and then (maybe) think about a settlement that includes payment of attorney's fees.
This summer has triggered a wave of announcements, in many areas, relating to ESA litigation. The Center for Biological Diversity and other groups have announced their intent to sue over the polar bear, Hawaiian monk seal, Cape Sable seaside sparrow, and bull trout. Meanwhile, the official complaints have been filed for other lawsuits, including claims related to the beluga whale, the Fort Irwin tortoise, the grey wolf, and tiger salamander.
According to Dale Hall, Director of the U.S. Fish & Wildlife Service, all of these notices and cases are simply more proof that the ESA is broken, and that the judicial branch now directs the executive branch as though it was presiding over a "shotgun wedding." In his opinion, the ESA is in need of revamping and "has been in a state of crisis for the past two decades and through three presidential administrations." In the absence of renewed Congressional guidance, "lawyers and judges rather than professional biologists have been setting the conservation priorities and driving listing actions."
In my opinion, some of these cases may have true merit, and prove deserving of their day in Court. Still, the problems with the ESA, as articulated by Director Hall and in the right side column of this blawg, have empowered CBD, PLF, and dozens of other organizations to pursue their policy objectives in the Federal courts. The potential for publicity, donations, and yes, recovery of attorney's fees in the event of victory, all serve as an incentive to sue, sue, sue. In other words, through the ESA, endangered species litigation has become a business all of its own.
AFTERTHOUGHT: Not every ESA case is related to non-profit advocacy, such as Florida's potential suit over water management in the Apalachicola-Chattahoochee-Flint river basin, and the effects on oysters, mussels, and more. Hard core cynics, like Georgia's Gainesville Times, might argue that the Florida case is motivated by self-interest and the needs of the seafood industry. But a competing perspective -- as recently published in the Toronto Star -- is that species protection, and the objective of sustainability, is good for all business.