September 15, 2015

PLF comments on proposed improvements to ESA petition process

By Jonathan Wood Attorney

This summer, the U.S. Fish and Wildlife Service proposed revisions to the regulations governing listing and delisting petitions under the Endangered Species Act, to make that process more clear, efficient, and scientifically sound. As PLF explained in the comment that it filed supporting the revision, this is a long-needed and welcome sign.

The proposal is imminently reasonable. It requires anyone submitting a petition to list a species (triggering incredibly burdensome restrictions on others) to explain why a species should be listed, taking into account all readily available, relevant data on it and to share the petition with the agencies responsible for protecting wildlife in the states where the species is found.

These changes will greatly improve the listing process. The requirement to include all readily available, relevant data, for instance, will ensure that species aren’t listed based on cherry-picked data that give a misleading impression about its status. This is a serious problem. In fact, almost as many species have been removed from the list because they never should have been listed in the first place as have been removed because they were recovered. Nonetheless, this requirement has been decried by special interests who rely on the listing process to stop private activity they don’t like. As we explain in the comment, this argument misses the mark:

Some commentors decry this [requirement] as unduly burdensome and discouraging to science-based petitions. But this argument makes little sense. A petitioner who has an isolated bit of data can’t know whether it warrants changing a species’ status under the Endangered Species Act unless she knows how that data fits into the existing body of evidence. It may be that the new information calls the weight of authority into doubt, but a petition can’t demonstrate that by omitting the contrary authority and making no attempt to explain why the new information is better.

The requirement to send petitions to states first will also have many laudable impacts. In addition to taking advantage of their substantial expertise (states have primary responsibility for managing wildlife), involving states earlier in the process would allow them to develop better strategies to protect the species. Although the Endangered Species Act’s command-and-control approach hasn’t proven very effective at restoring species, state and private conservation efforts have.

By involving the states early in the listing process, it would allow [states] to develop their own conservation strategies that could ameliorate the threats to a species, eliminating the need for the species’ listing. Such state led efforts, in conjunction with private conservation efforts, can better reduce burdens on individuals and better recover species.

Despite the improvements that these proposed revisions represent, there have been howls of protest from some in the environmental movement. Perhaps my favorite is their assertion that the revisions would violate their First Amendment right to petition the government. This is an absurd argument. The right to petition guarantees all of us the right to petition anyone in government arguing that they should or should not do something. The proposed revisions don’t restrict that right in any way. You’ll still be able to write your congressman, the president, or even a Service bureaucrat to express your views on species protection.

The proposed revisions wouldn’t restrict that right, but they would make clear that, if you want the government to list or delist a species, you have to present it with the information necessary to determine whether that’s appropriate. This isn’t contrary to the First Amendment at all. The Constitution guarantees the right to petition the government, not the right to force the government to do what you want.

The proposed revisions are reason for a small amount of optimism that the Endangered Species Act will work slightly better in the future. If it does, that will mean fewer unnecessary burdens placed on individuals and property owners and resources wasted that could have gone to recovering species that actually need it.

What to read next