March 15, 2016

PLF petition challenges illegal Endangered Species Act regulation

By Jonathan Wood Attorney

Today, PLF submitted a petition with the U.S. Fish & Wildlife Service, challenging a regulation that illegally extends the Endangered Species Act’s burdensome take prohibition to all threatened species. The petition argues that federal bureaucrats have no authority to reverse Congress’ judgment that the stringent take prohibition should not apply to these species. It was submitted on behalf of the National Federation of Independent Business — the nation’s leading small business organization.

When Congress enacted the Endangered Species Act, it expressly limited the statute’s take prohibition — which criminalizes any activity that adversely affects a single member of a protected species or its habitat — to endangered species. The reason for this choice: Congress recognized how incredibly burdensome the prohibition is, but determined that it were necessary to address endangered species’ dire states. Threatened species, on the other hand, face only more remote threats and receive different, less burdensome protections. For them, Congress determined that this stringent prohibition is generally unnecessary.

Under the statute, the Service may depart from this general rule by regulation. Section 4(d) permits the Service to extend the prohibition to threatened species on a species-by-species basis, if necessary and advisable for the particular species’ conservation. But it does not allow unelected, unaccountable bureaucrats to simply reject Congress’ decision to presumptively exclude threatened species from the take prohibition. In a recently published article in the Pace Environmental Law Review, I explain why this interpretation is compelled by the statute, its legislative history, and the Constitution.

Despite this limited authority, the Service adopted a regulation shortly after the statute was enacted that purports to forbid the take of any threatened species, including those that hadn’t yet been identified or listed. This illegal regulation has been extremely disruptive, to put it mildly. It hamstrung the timber industry in the Pacific Northwest, where it applies to the Northern Spotted Owl. And it has led to annual beach closures and restrictions on coastal property owners throughout the mid-Atlantic and New England, where it applies to the piping plover. The regulation currently applies to approximately 150 species, most of which were not listed when the regulation was imposed, and were automatically subject to it without any analysis of whether the costs of the regulation were justified or necessary.

Property owners, small businesses, and individual citizens are not the only ones who suffer as a result of the illegal regulation. The illegal regulation also hurts the very species it purports to protect. Under the statute, the take prohibition should serve as the major incentive for species conservation. Landowners whose property houses endangered species would benefit from recovering the species; if the species were downlisted to threatened, the take prohibition would be lifted. And landowners with threatened species on their property would be encouraged to conserve them, to avoid the imposition of the prohibition if the species becomes endangered. Under the illegal regulation, however, endangered and threatened species are treated the same, eliminating these incentives. Since most listed species depend on private property for the lion’s share of their habitat, getting the incentives right is vitally important.

It’s time for the illegal, counterproductive regulation to be repealed. Species have been kept on the precipice (only about 1.5% of listed species have recovered) by this regulation for 41 years; that’s long enough.

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