June 20, 2023 — Third in an occasional series.
The authors of the Endangered Species Act failed to foresee the elephant in the room.
The words “lawyer,” “lawsuit” and “litigation” did not appear in the congressional record during House and Senate debate when it was passed into law 50 years ago. The absence is remarkable, as litigation now looms large over the law’s inner workings.
Consider this:
E&E News identified 53 final ESA actions taken by the Fish and Wildlife Service between Jan. 1, 2022, and May 1, 2023, including listings of threatened or endangered species, critical habitat designations and other final steps.
Of these 53 final actions published in the Federal Register during the 16-month period, at least 38 involved species that had been the subject of lawsuits.
Numerically, at least, it’s undeniable that litigation matters.
“I would characterize litigation as a problem for the ESA,” said Jonathan Wood, vice president of law and policy at the Property and Environment Research Center, a Montana-based free-market-oriented policy think tank. “Unfortunately, the law has created incentives to pursue litigation and conflict at the expense of collaborative and on-the-ground conservation efforts.”
Wood added that the pile-up of lawsuits has “also led some agencies and landowners to feel like litigation targets, rather than conservation partners.”
But lawsuits have also compelled FWS to act, prodding a slow-moving bureaucracy into action to protect species from extinction. Currently, there are over 1,300 plants and animals listed as threatened or endangered under the ESA. Listed species enjoy several types of protection. For instance, it’s prohibited to “take,” essentially to kill or harm, an endangered species. Critics — a category that includes many Republicans in Congress — complain the designation can result in constricting or blocking economic development, while conservationists see the protections as key to preserving biodiversity.
Even so, about 400 listed species still lack a required recovery plan and nearly 900 plans are outdated, according to an analysis by the Defenders of Wildlife.
The agency frequently misses ESA deadlines, which draws legal actions from the left, while from the right conservatives assail the program for the low number of species deemed to have recovered.
Eric Biber, a professor at the University of California, Berkeley, School of Law, agreed with Wood that litigation has become a “major factor in ESA implementation,” but he views the results more favorably.
In what’s still one of the most comprehensive studies of its kind, Biber and co-author Berry Brosi, a biologist now at the University of Washington, assessed the role played by petitions and litigation with hundreds of species. They concluded, in a 2010 issue of the UCLA Law Review, that species listed as a result of a petition or litigation faced greater threats than species listed on the agency’s initiative.
In other words, litigation appears to lead to reasonable or even advantageous results.
Biber said he believes the 2010 conclusions remain valid, saying that overall, petitions and litigation “are beneficial [in] ensuring that the species most at threat are protected.”
In 2011, for instance, the Center for Biological Diversity petitioned for the emperor penguin’s protection. The Fish and Wildlife Service acknowledged in 2014 that protections might be warranted.
There things sat, until a lawsuit filed in 2020 by the same environmental group led to a deadline for a final decision.
Finally, in November 2022, the Fish and Wildlife Service acknowledged the emperor penguin as a threatened species, with Director Martha Williams declaring that the listing “serves as an alarm bell but also as a call to action” over climate change.