August 23, 2012

Does "democracy" help the Endangered Species Act?

By Damien M. Schiff Senior Attorney

Delhi sands flower-loving fly, a fine example of "pretextual listing" (USFWS)
So concludes a new study to be published in the journal Science by Emory biology professor Berry Brosi and UC Berkeley law professor Eric Biber.  The gist of their analysis is that many species obtain ESA protection thanks to a citizen petition submitted under Section 4 of the Act.  Without the petitioning process, the authors conclude, many species would not receive protection.  The authors surmise that the Service fails to propose many species for listing because of political concerns.  For example, a certain species may not be iconic (and thus not have much of a political constituency) and, at the same time, may pose a significant obstacle to land and resource development if it is protected.

My own anecdotal evidence would support the authors’ conclusions.  But I would disagree with the authors that combining “democracy” and the ESA is necessarily a good thing.  For example, some environmental groups recently have submitted “mega petitions” that seek the listing of hundreds of species at a time.  The Service obviously cannot respond to these petitions in a timely manner, so these groups seek judicial enforcement, obtain a friendly settlement, and collect sometimes not-insignificant attorney’s fees.  Further, I suspect that even the authors would recognize that the ESA petitioning process often leads to “pretextual listings,” meaning that the species is being protected not to preserve some anthrocentric value but rather to impede an productive human activity.  I’m quite certain that Congress did not intend the ESA to be the chosen tool of NIMBYS and anti-growth groups, and yet such a fate has befallen the Act, in large measure due to the petitioning process that these authors laud.

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