Bulk petitions: breaking the Endangered Species Act, a few hundred species at a time? (Updated)
With each new petition to list a few hundred more species as threatened or endangered, environmental advocates risk the destruction of one of their most beloved statutes. By overburdening federal agencies, and outraging opponents, excessive petition and litigation tactics threaten something else: the rewriting of the Endangered Species Act (ESA).
Some scholars have estimated that the ESA currently protects less than nineteen percent of plant and animal species at risk of extinction. See, K. Mollie Smith. That frustration, in turn, has helped create enormous pressure to litigate over the ESA, and to use its citizen participation tools in an effort to force greater species conservation. For example, in recent years, environmental groups sent petitions to list hundreds of species to the biologists at the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NOAA Fisheries). The Center for Biological Diversity sent FWS a Petition to List 404 Aquatic, Riparian and Wetland Species from the Southeastern United States (see ESA blawg) and sent NOAA Fisheries a separate petition to list 83 species of coral (again, see ESA blawg). WildEarth Guardians sent FWS a petition to list 475 imperiled plant and animal species across the American Southwest, (see Federal Register) and sent a separate petition seeking Federal Protection for 681 Western Species (see press release and Federal Register.) Four petitions, one thousand six hundred forty three species.
Raw numbers aside, these tactics -- call them "bulk petitions" -- generate substantive, procedural and economic consequences.
First, the petitions create substantive burdens for the agencies. In the easiest of cases, the regulatory agencies will be able to respond in a systematic manner, rejecting the listing of many or all of the petitioned species because the petition fails to meet certain procedural thresholds. For example, the petition might rely upon an inapplicable international standard or unreliable or outdated information, or it might contain insufficient information on many of the species, enabling the FWS or NOAA Fisheries to reject the petition because it does not "present substantial information indicating that the petitioned action may be warranted." See ESA Sec. 4(b)(3)(B), and FWS flow chart. Such petitions waste agency time and resources simply to make a point. But in other cases,the petitions might contain sufficient information to overcome that initial standard, thereby triggering a duty to review whether each species is threatened or endangered. That analysis, in turn, requires review of the best scientific available information available (and a notice and comment process!) to determine how each of the five factors for listing apply: (1) present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or man-made factors affecting its continued existence. This type of substantive analysis is difficult for a single species; but when 1643 species are involved, for 5 factors, mistakes and inadequacies will occur.
Second, compounding the substantive problems, the petitions create procedural burdens, because FWS and NOAA Fisheries lack discretion to prioritize the petitions (nevermind attending to the needs of already listed species!) The petitioners had as long as they wanted to create their petition. But once the FWS or NOAA Fisheries receives the petition, it must respond, within no more than twelve months, based on the deadlines in the ESA Sec. 4(b)(3)(B). See also, Petition Management Guidance (1996). For each and every species in the petition, one of three outcomes must occur: either the petition is rejected for a species as inadequate, the species is listed, or the listing of the species is considered warranted but precluded. The clock ticks relentlessly, and no matter what other competing priorities exist, the expert discretion of our agency biologists gives way to the demands of intemperate petitioners. Worse yet, with petitions offering lists of hundreds of species, the agency's face a terrible choice: take time to do it right, and get sued for taking too long, or rush to make decisions, and face the potential risk of being sued for making errors.
Third, pursuant to the ESA's citizen suit provision, the lawsuits that follow the unanswered petitions have economic consequences. The taxpayer already pays for the FWS and NOAA review (whether late or not.) And of course, once the litigation begins, the taxpayer pays for the Justice Department and the judiciary, too. But adding insult to injury, Congress has created a process where the taxpayer pays the petitioners for filing their lawsuits. Most of the time, under the "American rule," litigants pay for themselves. But some statutes, including the ESA, have "fee-shifting" provisions. As explained in the ESA, Sec. 11, the court "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." And unfortunately, through case law, the courts have decided that payment is "appropriate" whenever a litigant achieves even just a partial victory, or merely serves as a "catalyst" for action. In theory, these types of statutes and legal doctrines were created to help individual taxpayers act as "citizen attorney generals" to help ensure that the government does its job, enabling them to be compensated when they were proven right. But the multi-million dollar litigation organizations such as the Center for Biological Diversity and Pacific Legal Foundation do not deserve taxpayer funding for their lawsuits. (In 2008, CBD had $9.1 million in revenues and net assets of $6.4 million, PLF had $10.1 million in revenues and $10.2 million in net assets. See Charity Navigator.) The fee shifting process adds nothing, except debt, to the national dialogue. See, ESA blawg (2010).
These three concerns aside, some members of the environmental community justify these bulk petition tactics, and their consequences, by labeling the President, Secretary or decision maker (or anyone else who disagrees with them) as unenlightened, ignorant, or worse. They profess that the government fails to act in times of biological crisis, insist that the extinction of countless species is imminent, and declare that without their push for action, nothing at all happens. See CBD and Newsweek. Their opponents, in turn, deem the environmental advocates to be irresponsible extremists, deluded into "sky-is-falling" worry without sufficient facts, and otherwise unwilling to acknowledge property rights or the economic consequences of the green agenda. See PLF. The environmentalists then respond to their naysayers, tarnishing them as rich or selfish polluters and resource exploiters who only want to preserve the status quo. And so on, and so on. To some degree, everyone may even be right. But none of the rhetoric, none of the posturing, none of the fundraising, and none of the litigation will change the realities. The advocates have taken over the priorities, the agencies have lost control, and the taxpayers -- as well as the species -- suffer. The state of the Endangered Species Act is precarious, because lawsuits have become a business model. See ESA blawg (2008).
In response to all these concerns, some future Congress might decide that enough is enough. As a starting point, some lawmakers might even encourage the end of bulk petitions by limiting petitioners to a single species at a time. But sadly, the consequence of such a rule would be predictable: in lieu of the four petitions discussed above, 1643 "separate" petitions would be filed (maybe even by 1643 "separate" people). Meanwhile, worthy multi-species petitions would be needlessly inhibited. So, with that sad truth swallowed, I suggest that whenever ESA reform does finally happen, five changes should occur to the petition process. First, twelve month deadlines for agency review should only apply to the decision as to whether or not a species warrants emergency listing -- and the need for an emergency listing could be expressly defined, creating a higher standard that dissuades litigation over insufficiently detailed bulk petitions, and that enables the agency to quickly reject inadequate petitions. Second, any right to sue for inaction should apply only when the inaction exceeds a much longer period: perhaps five years (one year before the statute of limitations might otherwise apply.) This longer period of time would allow the agencies to create internal priorities -- and yes, even to acknowledge political influences.) Third, no matter how long the agency delays its review of a petition, the deadline should not create strict liability for a deadline violation; the ESA should allow the agency to explain any reasonable delay. (For example, in Telecommunications Research & Action v. F.C.C., 750 F.2d 70, 79-80 (D.C.Cir.1984) the court described a six-factor test for evaluating unreasonable delay.) Fourth, the litigation incentive should be removed, and the right to be compensated by fee-shifting provisions should be severely curtailed (with a capped dollar amount) or eliminated. (See ESA blawg (2010)). Fifth, and last, but certainly not least, with the agency discretion to control the process restored, and far less money spent on litigation, Congress should ensure that the listing process is adequately funded.
Although the Endangered Species Act protects over 1900 species, the statute is certainly not perfect. Its protections for listed species can be insufficient, and its many requirements consume the implementing agencies' time and attention. But these limitations demonstrate the value of a workable listing petition process, because knowledgeable citizens and qualified scientists can play an important role in the identification of threatened species and the establishment of needed statutory protections -- before it's too late for the species. The bulk petition process, however, goes much too far. Thoughtful environmental advocates should recognize that a moderately and partially helpful ESA is better than no ESA at all.
Postscript. The abuses of the listing petition process is hardly a new topic. It was the subject of U.S. Senate hearings in 2004, see Environment and Public Works, and the National Governors Association also called for reform. See The Heartland Institute. And sadly, all of that Congressional dialogue came from anti-regulation industry advocates. Nevertheless, the recent petitions are elevating an old concern to new plateaus, and will expand opposition to the perceived abuses of the ESA. At its June 2010 meeting, the federal Marine Fisheries Advisory Committee addressed this issue, including the petition to list 83 coral species. The group, consisting of a broad array of stakeholders, including fishermen, academics, environmental groups (and me, the author of this blawg), unanimously adopted the following statement: "MAFAC notes that a thorough scientific analysis takes time, and expresses its concern that some petitions to list species -- such as a recent petition to list 83 species of coral -- may not be adequately responded to within the statutory timeframes of 90 days (for an initial determination) or twelve months (for a final determination). MAFAC also notes its concerns that the deadlines associated with this petition process, as well as the associated litigation and court orders, can, at times, limit the full exploration and exercise of NMFS' scientific expertise and also renders NMFS unable to meet its existing priorities. For example, deadlines associated with listing petitions for new species can interfere with existing efforts to develop and implement recovery plans for species already listed. To the extent that the ESA petition process requires a deadline for NMFS to respond, MAFAC encourages NOAA to ask Congress to consider whether alternatives such as an “unreasonable delay” standard, as included in the Federal Administrative Procedure Act, would be more appropriate."
One final note: In August 2010, the Center for Biological Diversity filed a more restrained petition, seeking to list four mountainous species based on the alleged effects of climate change, including the ‘I‘iwi (or scarlet Hawaiian honeycreeper, pictured below), the Bicknell’s thrush, the White-tailed ptarmigan, and the San Bernardino flying squirrel.
The I'iwi or Scarlet Hawaiian Honeycreeper (Vestiaria coccinea) is a Hawaiian "hummingbird-niched" species, of the Hawaiian honeycreepers, subfamily, Drepanidinae, and the only member of the genus Vestiaria. The I'iwi is a highly recognizable symbol of Hawai'i. The I'iwi is the third most common native land bird in the Hawaiian Islands. Altogether, the remaining populations add up to a total of 350,000 birds. There are large colonies of I'iwi on the islands of Hawai'i and Kaua'i, and smaller colonies on Moloka'i and O'ahu; I'iwi were extirpated from Lāna'i in 1929. It was formerly classified as a Near Threatened species by the IUCN, but recent research has proven that it was rarer than previously believed. Consequently, it was uplisted to Vulnerable status in 2008. Caption and photo from wikipedia.
READER CORRESPONDENCE: Earlier today, I received the following insightful comment from Elizabeth Ellis, an Environmental Planner who works for the Washington State Department of Natural Resources. Our dialogue deserves reproduction here...
I really appreciate your insight into the ESA, although sometimes I think you may be a bit critical. I used to work for NMFS doing section 7(a)(2) ESA consultations on the Columbia River. While petitions may seem like they are a burden, they are also a tool if completed correctly. They allow multiple species to be submitted and reviewed at once, which saves the agencies time, reduces their workload, and saves their money. Let's not overlook the reductions in the staff and funding the services have had to endure. To remove a tool meant to streamline may do more harm than good. Yes, some folks may be misusing it, but as you point out correctly, what could happen if it is removed? Single-species petitions (again?)? Now THAT is a burden.
Let's look at the real issues - why are the petitions coming in so quickly, Keith? Are people just mad at the services? Are they anarchists? Are they bored? No, the reality of it is, there is science supporting species decline as our population increases. Many people want to conserve and protect these species and their habitat before it is too late and see the ESA as a tool to do that. Perhaps we need to develop more mandatory protections for species and their habitat in every state to ease the burden on the ESA, so that it can be used correctly - as an emergency room for species in in dire straits.
To quote Professor Emeritus Gorden H. Orians, University of Washington, the ESA is just a "finger in the dike" of biodiversity. It is not the answer. We must build better dikes, as Professor Orians to rightly reminds us, in order to protect the future of species and their habitats. Not rely on the emergency room.
MY REPLY: I support the petition process, and do not advocate its elimination. I simply believe that the inevitable litigation over all these petitions is a waste of intellect, and money. Yes, some petitions may have merit, but those merits compete with the needs of existing listed species, and the needs of other petitioned species. Under the current system, two litigious non-profit organizations can force FWS and NOAA to drop every other priority and address their petitions. Other discretionary activities, like recovery planning, stop dead. I say let the agencies limp along, and give them sufficient discretion to sort out the priorities by eliminating the much too rigid 12-month deadline. I also agree that the ESA cannot continue to serve as the only tool regulating biodiversity, and have repeatedly emphasized the point that the ESA is drowning under the weighty risk of extinction created by climate change and sea level rise. Sadly, we need to make room for triage, at least until we build those additional dikes that Professor Orians espouses. Indeed, perhaps the intellect spent on lawsuits can be redirected to building those new dikes -- climate change legislation, anyone? The economic and intellectual savings from less litigation can be reinvested in agency resources and species protection. See also, ESA blawg postings in 2008(has climate change jeopardized the ESA?) and 2008(the preservation predicament) and 2009(climate change and the 5-factor analysis) and 2009(polar bear listing shows need for climate legislation) and 2010 (listing of the van Rossem’s gull-billed tern, now what?).