Author: Brandon Middleton
Earlier this month the Public Policy Institute of California issued a noteworthy paper on the Golden State's water crisis, California Water Myths. The paper includes a brief discussion of the Endangered Species Act and whether this law and other policy concerns are really the "true villians" in the California water debate. PPIC offers a fair analysis, acknowledging some of the illicit purposes behind ESA litigation and the impact that ESA restrictions can have on deliveries, while at the same time concluding that it's not exactly clear how much additional water would flow to the San Joaquin Valley and Southern California without ESA restrictions.
PPIC fails to address one key question, however: Does the Endangered Species Act put species ahead of people? This is an interesting omission, especially when one considers that environmentalists in the water debate have contended time and again that the claim that the ESA puts humans below fish and other endangered species is simply a lie. For a good example, check out this National Wildlife Federation site, which claims that it is a myth that "the Endangered Species Act puts plants and animals above people, costing us money and jobs."
Recent statements by two federal judges should put to rest the false notion that the Endangered Species Act puts humans and species on equal footing. In November, Judge James Redden questioned government attorneys over their plans to save Columbia River salmon and suggested the following in a memo urging officials to implement protective measures sooner rather than later: "In light of the endangered Species Act ('ESA') mandate that the agencies give first priority to the species, why not implement those measures now?"
Earlier this week, Judge Roger W. Titus issued a decision that will halt a West Virginia wind power project due to potential effects the project might have on an endangered bat that has never been seen on the project site. Despite the fact that endangered Indiana bat caves are located more than five miles from the nearest project turbines, Judge Titus nonetheless enjoined the alternative energy project and concluded that "Congress, in enacting the ESA, has unequivocally stated that endangered species must be afforded first priority, and the FWS long ago designated the Indiana bat as an endangered species."
Let their be no doubt, then: The Endangered Species Act gives first priority to endangered species. Who gets second priority? Everyone else, including humans. When it comes to debate on California's water policy, this reality should not be ignored.
Update: The Daily Mail's Don Surber notes how West Virginians can't seem to catch a break in their attempts to produce energy for the rest of the country. The Ohio Agricultural Law Blog discusses the implications Judge Titus' decision may have on the Buckeye State. And Law & The Environment's Seth Jaffe calls for something else besides the uncompromising Endangered Species Act:
In a world where everything has costs, we need to find a way to balance those costs to achieve societal objectives. Maybe the harm to the Indiana Bat would be so great that the Beech Ridge Energy project is not worth it. Maybe not. Either way, does anyone think that the ESA provides a mechanism to make that judgment? Of course not; it’s not designed to do so. It’s designed to protect the bats.
We really need an overarching statute that allows the government to assess the unavoidable trade-offs, because there ain’t no such thing as a free lunch, and decide which projects should move forward. Lest my environmentalist friends think that I want to be able to give developers a blank check, I can only say, no, no, no. I’m agnostic on the outcomes, but I’m quite certain that the approach I advocate would only make thorough (which is not to say slow) review under MEPA and related statutes more important. Decision-makers can’t balance the costs and benefits of different projects unless they have a thorough understanding of what those costs and benefits are.