ESA Reform Recommended
by Cat Urbigkit, Pinedale Online!
February 21, 2014
A group of Congressional Representatives have released a report calling for reform of the Endangered Species Act. The ESA Congressional Working Group, Co-Chaired by Rep. Doc Hastings of Washington and Rep. Cynthia Lummis of Wyoming,
The Endangered Species Act (ESA) Congressional Working Group, led by Representatives Doc Hastings (WA-04) and Cynthia Lummis (WY-at large), released its final Report, Findings and Recommendations.
The report is the culmination of the Working Group’s eight-month effort to examine the ESA from a variety of viewpoints and angles, receive input on how the ESA is working and being implemented, and how and whether it could be updated to be more effective for both people and species. The report reflects hundreds of comments from outside individuals and testimony from nearly 70 witnesses who appeared before a Working Group forum and House Natural Resources Committee hearings.
The report concludes that "After more than 40 years, sensible, targeted reforms would not only improve the eroding credibility of the Act, but would ensure it is implemented more effectively for species and people."
"There is no doubt of the strong and widespread support for helping to protect endangered species. However, our findings clearly show that there is room for improvements and ways to bring this 40-year-old law into the 21st century," said Rep. Hastings. "Returning focus of the law to species recovery, addressing litigation and settlement reforms, improving state and local participation, and improving science and data are some of the specific areas of improvements on which I believe we can build consensus. I hope this report can further the discussion on the ESA and serve as a starting point as we move forward with sensible and targeted legislative proposals in the coming months."
"We all agree on our obligation to protect imperiled species. Our Working Group has concluded that the Endangered Species Act needs updating in light of tremendous conservation advances since 1973," said Rep. Lummis. "The American people have grown by leaps and bounds in their understanding of conservation, their willingness to conserve species, and their ability to conserve species —the ESA needs to grow with them. The ESA is stuck in a litigation driven model. This outdated model hinders the boots on the ground conservation we should be harnessing to actually recover endangered species, not just spout flowery rhetoric about the law in courtrooms. Our report is an exciting opportunity to bring the ESA into the next millennia."
The report makes specific recommendations for improving the ESA and removing impediments to species recovery, as outlined in the four categories below:
1. Ensure Greater Transparency and Prioritization of ESA Decisions: More Focus on Species Recovery and De-listing than Listing
The Working Group received many comments that raised serious concerns about federal implementation of the ESA, the lack of prioritization of resources, and a seeming- fixation with listing species versus ensuring species recovery and compatibility to other vital economic and private property priorities. Some areas of improvement could include:
o Ensure Prioritization of Species Protection. Rather than listing hundreds or thousands of new subspecies of plants, animals and fish, the focus and priority of the federal government should be protecting those species most imperiled or found to be at the brink of extinction.
o Require Numerical Goals Needed for Species Recovery -- Upfront. Federal agencies that implement ESA should not list species unless and until they are able to identify actual recovery and numerical goals for healthy species populations upfront—before, or at the time of any proposed rule involving listing a species. Recovery plans should be drafted and completed and approved before listing or critical habitat is designated, not as an afterthought, years later, or not at all.
o Require ESA Listing and Delisting Petitions to be based on Actual, Accessible Data. Rather than basing decisions on vague trends showing decline or improvement or "professional opinions," ESA listing/delisting petitions should not be accepted by federal ESA implementing agencies unless they are based upon actual data relating to the species’ condition. Data used for listing and delisting decisions should be made publicly available, especially if the data and related studies are being financed by the American taxpayer.
o Require Delisting and Downlisting as Data Supports. Instead of having to guess when (or even whether) the federal government will make decisions to remove species from the ESA list that are healthy or have met required recovery goals, federal agencies should be required to issue actual rules to delist and remove or downlist species from the ESA list where supported by data.
o Authorize Flexibility of ESA Statutory Deadlines. Federal agencies should have discretion to extend 12 month or 90-day deadlines relating to species listing or critical habitat determinations, without fear of spurious litigation. Rather than force federal agencies to accept every petition with equal weight no matter how lacking the science and data, agencies should be allowed to incorporate the best and most current data to allow for better prioritization. The ESA must keep its eye on those species at the brink of extinction or most imperiled. Agencies’ Listing Priority Guidance (48 Fed.Reg. 43098) should supersede any conflicting 12-month or 90-day deadline set by rule, settlement or other action.
o Codify Policy for Evaluating Conservation Efforts (PECE). To ensure ongoing species conservation efforts are given proper authority and consideration under the law, the Policy for Evaluating Conservation Efforts (PECE) (found at 68 Fed.Reg. 15100) should be codified.
o Clarify and Define ESA Terms to Ensure Consistency. Several terms in the law have become magnets for misinterpretation, conflicting interpretations, or even litigation, and should be clarified, including, for example: "foreseeable future"; "significant portion of the range," "jeopardy" to a species, the technological and economic feasibility of "reasonable and prudent alternatives/measures," and "maximum extent practicable" relating to mitigation.
2. ESA Litigation and Settlement Reform
The Working Group received many comments that ESA decisions need to be made less susceptible to litigation, which has served to be a significant hurdle in prioritizing the recovery of truly endangered species and created rush to judgments that lack transparency. In times of tight fiscal budgets and escalating national debt, the first priority of the federal government’s endangered species protection and recovery programs should be on species—not lawyers or prepping biologists for court.
Moreover, the federal government should not be rewarding those that have made a business out of suing the federal government on ESA to receive taxpayer-funded federal grants or funding through other programs. Here are three areas the Working Group recommends ESA should be addressed:
o Transparency and Flexibility of Closed-Door Settlements/Deadlines. ESA listing and habitat designation deadlines (agreed to by the Department of the Interior in its 2011 "mega-settlements" with two litigious groups, the WildEarth Guardians and the Center for Biological Diversity), should not supersede the federal government’s ESA responsibilities to American private property owners, states, tribes and local governments, or further incentivize these and other groups to litigate and settle. Federal agencies should be required to disclose all details of consent decrees to Congress and an appropriate NEPA process should be applied for settlements to ensure public input in ESA decisions, and to ensure they include best scientific data.
o ESA Litigation Transparency and Reform. Litigious groups and plaintiffs should be discouraged from filing procedural challenges against agencies simply because they do not agree with the agency’s decisions, (such as delisting determinations, findings of species listing not warranted). Litigants should be required to pay their own way to curb repeated litigation and foster court cases only on substantive matters. To discourage forum shopping by frequent ESA-litigation-plaintiffs, ESA lawsuits should not be permitted in federal courts other than in a state a species is primarily located.
Federal agencies, (including the Departments of Justice, Interior, Forest Service, and NOAA), should be required to maintain and make publicly available and report to Congress on the complete and accurate records of federal funds spent annually for ESA-related litigation, payment of attorneys’ fees, settlements, and consent decrees for the Judgment Fund and the Equal Access to Justice Act.
o Curbing Excessive Taxpayer Funding of ESA Attorneys’ Fees. Hourly fees paid by the federal government to litigious attorneys for ESA litigation should be capped like other federal statutes to prevent lucrative payment of attorneys’ fees. Courts should no longer view "settling" parties as "prevailing" or entitled to taxpayer-funded attorneys’ fees. Parties that engage in settlement negotiations and settlements should bear their own costs. In addition, non-governmental organizations or individuals that file ESA- related lawsuits against the federal government should be barred from receiving federal taxpayer-funded grants. Since money is fungible, litigation should not be subsidized by taxpayers.
3. Empower States, Tribes, Local Governments and Private Landowners on ESA Decisions Affecting Them and Their Property
The Working Group has found both the capability and willingness of states, tribes, localities and private landowners to conserve and recover species. Multiple parties have identified impediments and deficiencies in federal ESA implementation, including misguided priorities and fear of litigation, which undermines species protection and conservation while simultaneously ensuring multiple use, protection of economies, private property and water rights. In this regard, several areas are recommended:
o Strengthen States’ Authority and Role in ESA Policy. Section 6(a) should be strengthened to ensure that states’ roles in ESA policy provisions have meaning and are enforceable. Agreements to delegate authority between the Federal government and states for management of activities involving listed species should not be subject to excessive litigation. States that have approved species conservation plans and agreements should be given presumption by federal agencies that ESA listing is not warranted.
o Require State, Tribe, and Local Approval of ESA Settlements. In addition, states (as well as tribes and other local governments) should be afforded legal standing and be consulted with on federal ESA-related court settlements impacting their jurisdictional borders. The ESA should provide local, tribal and state governments a voice in closed- door settlements where such settlements impact their land.
o Require Involvement of State, Tribe, Local Data and Peer Reviews. States, tribes, local governments, private landowners and other entities, in many cases, have more current and accurate data, which should be given the highest consideration and presumption in ESA decisions. No ESA petition or listing determination should be approved without incorporating and analyzing data provided by states, tribes, local governments and private landowners. In addition, federal ESA agencies should be directed to include states, tribes and local governments in the design, selection and scope of peer reviews of major ESA-related decisions.
o Strengthen and Simplify HCPs and CCAAs and Exempt them from Critical Habitat. To encourage and give validity to voluntary Habitat Conservation Plans or Candidate Conservation Agreements with Assurances, these agreements should be exempt from critical habitat designations. In addition, the process to obtain such HCPs and CCAAs, which now can be cumbersome, expensive and out of reach, should be simplified and codified to incentivize individuals undertaking voluntary conservation efforts.
o Authorize Reconsideration of Listing/Critical Habitat Decisions that Significantly Harm Private Landowners. Property owners have no recourse in certain cases where their property is significantly devalued or subject to regulatory taking. The Secretaries of the Interior and Commerce should be authorized in certain circumstances to reconsider and reevaluate, without judicial review, any critical habitat or listing decision where evidence shows significant economic harm or other justification warrants it.
o Require Real Economic Analyses Up Front for ESA. The Obama Administration’s finalization last year of a rule changing the way ESA economic impact analyses are conducted to only include "baseline" costs should be replaced with a rule that codifies a 10th Cir. Court of Appeals ruling requiring agencies to analyze all economic costs of an ESA listing. Moreover, critical habitat economic analyses should be required at the time of any proposed listing, making it publicly available.
o Authorize Private Funding of ESA Permit Processing.
To improve processing of federal ESA consultations, non-federal contractors should be authorized to privately funded by an ESA permit applicant to prepare biological opinions, similar to documents now authorized under NEPA by third-party contractors. In addition, "action agencies" should be permitted to prepare a biological opinion subject to review and approval by FWS and NMFS.
4. Transparency and Accountability of ESA Data and Science
Finally, the Working Group heard from a number of experts and witnesses on the need to ensure that ESA science and data are transparent, publicly available, and not driven by individuals with conflicts of interests. The Working Group recommends improvements could be made to this area as follows:
o Modernize and Clarify "Best Available Scientific and Commercial Data". Data, including DNA, should be preferred to support ESA determinations over unpublished reports or professional opinions. ESA-related data should be required to meet Data Quality Act guidelines. In addition, federal agencies should be required to justify why data relied upon for ESA decision is the "best available" and why such data is deemed "accurate" and "reliable."
o Transparency and Accessibility of Data in Federal ESA Decisions. Data used by federal agencies for ESA decisions should be made publicly available and, when possible, reviewable through online access on the Internet. This includes data or information that may be contrary to federal agencies’ own data. A public repository of data should be required for all ESA decisions.
o Reform, Transparency and Accountability of ESA-related Peer Reviews. To ensure accountability, ESA-related peer reviews that do not comply with the Data Quality Act should be deemed "arbitrary and capricious," and all ESA-related peer reviews should be made publicly available and available online on the Internet. In addition, peer reviewers selected should not have a financial or other conflict of interest. FWS and NMFS should be required to consult with the National Academy of Sciences and affected states, tribes and local governments, to develop list of qualified peer reviewers on each controversial ESA action.
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