October 2, 2012

Do pretextual listings exist?

By Damien M. Schiff Senior Attorney

Not too long ago, I posted on a recent study in the journal Science demonstrating that many species are listed on the Endangered Species Act not because of government-initiated action but rather because of a citizen petition.  I noted that, in my view, the study supported the existence of pretextual listings, i.e., those listings that come about not to preserve an iconic or charismatic species, and not to preserve some anthropocentric value in the species, but rather to achieve some other end, typically the blocking of the productive use of land.

One of the study’s authors, Professor Eric Bieber of UC Berkeley Law School, objects to my interpretation of the study and its import.  As I understand Professor Bieber’s arguments, he has three objections.  First, the study does not support the existence of pretextual listings.  Second, there is no such thing as pretextual listing.  And third, even if there were such a concept, the phenomenon of pretextual listings should not trouble us.  On the meaning of their study, I’ll of course defer to the authors’ interpretation.  But the attacks on the notion and import of pretextual listings I consider unfounded.

First, Professor Bieber’s argument seems to be that a listing can never be pretextual because a species can only be listed if it in fact meets the statutory standard for listing.  But this argument seems to deny the very concept of pretext itself.  After all, the whole point of pretext is to show that, although one’s actions could superficially be justified by one explanation, in reality they should be understood according to another explanation.  To say that there is no pretext because one’s actions can be explainedis to say that there can never be pretext, i.e., there can never be more than one rationale for one’s actions.

Second, whether actions are pretextual is important.  For example, if a police officer routinely exercises his enforcement discretion to pull over speeding cars when he believes that they are driven by minorities, or chooses to arrest only those loiterers who are wearing political t-shirts with which he disagrees, we should be very concerned.  And we should be concerned irrespective that these victims of pretextual enforcement are technically in violation of the law and otherwise liable to punishment.  We should be concerned because we don’t want otherwise good laws from being used as tools for racism.  Thus, in the same way we should not want any laws, including the Endangered Species Act, from being used to achieve ends other than those intended by Congress.

Now, Professor Bieber may well argue that Congress’s intent in enacting the ESA was exactly as the Supreme Court later described in TVA v. Hill, viz., to protect all endangered species whatever the cost.  I would disagree with that characterization of the intent of the lawmakers who voted for the ESA, who in my view were concerned about protecting iconic or economically valuable species and likely never thought that non-iconic and commercially trivial species would also be protected.  But this would be, in my view, the proper field of engagement, where we debate about a law’s purpose.  What is improper, in my view, is Professor Bieber’s approach, in which we are indifferent to the motives of those who seek and enforce regulation.

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