December 13, 2011

The unassailable Endangered Species Act

By The unassailable Endangered Species Act

Last Tuesday I had the honor of testifying before the House Committee on Natural Resources in Washington, D.C.  The title of the hearing was “The Endangered Species Act: How Litigation is Costing Jobs and Impeding True Recovery Efforts.”  My testimony addressed how the ESA is structured in such a way that it encourages environmental groups to seek low-cost court victories at the expense of individual Americans as well as federal agencies throughout the country.

I focused in particular on the relative ease with which environmental groups are able to obtain injunctions over land use and natural resource activities.  This trend is based primarily on the ESA’s backwards prioritization–the ESA literally elevates the importance of endangered species above human well-being.

As I have explained before, the ESA’s concept of species-before-people is all too real, thanks in large part to the Supreme Court’s infamous 1978 decision, TVA v. Hill.  I discussed TVA and how this decision has been exploited in ESA litigation at about the 39:30 mark of the Committee hearing.  My written testimony on TVA and other ESA issues is available here.

Now, I fully expected environmental groups to object to many of the points raised by me and other property rights advocates, and I anticipated that they would attempt to downplay the concerns numerous elected officials have with ESA litigation.   Although I would probably disagree with such objections, I admittedly looked forward to them, as I felt (and still feel) that they would foster a needed debate over the country’s most powerful environmental statute.

But leave it to the enviros to launch into hysterics over the Committee hearing instead of defending the merits of the ESA.  Judging from the reaction of national environmental groups, one would think that the laudable goal of species conservation is itself under attack.

For example, the Center for Biological Diversity ominously warns that “[i]ndustry groups smell blood and are throwing millions of dollars at congressman to finally achieve the holy grail of anti-environmentalism: killing the Endangered Species Act.”  NRDC similarly asserts that certain Congressmen “have lost their perspective about the need to protect our natural resources.”  And according to WildEarth Guardians, only “special interests” would favor taking a closer look at the consequences of ESA litigation.

How anyone could suggest that Congress is considering jettisoning protection for endangered species is beyond me.  Clearly, the question elected officials are asking is not whether to protect endangered species, but how.  It is a sad day when enviros deliberately lose sight of this distinction in order to avoid any examination of the ESA’s efficacy.

Indeed, if the enviros were truly concerned with species preservation, they would favor an approach that encourages conservation and environmental stewardship.  But the ESA actually punishes those whose property contains land that might be used as habitat by endangered and threatened species.  By mandating species protection “whatever the costs,” the statute has shut down even so-called “green” energy projects, without providing a meaningful environmental benefit for such draconian results.

To further illustrate the absurdity of the ESA as it currently stands, as I write this a California business faces the prospect of paying CBD and another environmental group more than $1 million in fees despite there being no proof that the business ever harmed an endangered species. In Center for Biological Diversity v. Marina Point Development Co., anti-development plaintiffs sought and received an injunction to stop a commercial project based on claims the project would harm listed bald eagles.  However, the U.S. Fish and Wildlife Service had already determined that bald eagles were fully recovered and should be delisted and that the challenged project would have no effect on the species.  And, in fact, when the case was on appeal in the Ninth Circuit, the case became moot when the Service removed bald eagles from the list of threatened and endangered species altogether.  But, while the Ninth Circuit recognized that the property owners activities did not violate the Endangered Species Act, it nonetheless ruled that the Center was entitled to fees under the statute, since the delisting of the bald eagle occurred while the Center’s dubious district court victory was on appeal.  See Center for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794 (9th Cir. 2009).

There is no doubt that ESA litigation has led to results that defy reason.  However, try to bring this to the public’s attention, and you’ll be labeled as anti-environmental.  It’s a classic non sequitur, yet this is the means by which the modern environmental movement preserves its cottage industry.

It leaves one to wonder: if the ESA is so unassailable, why is the environmental community afraid of debating the statute’s merits?

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