Endangered Species Act and the Economy

Posted by Staff  |  @CorridorNews

This article contains important information about endangered species and environmental regulations that may impact the Texas economy.

Endangered Species Act and the Economy – Update 2014

The federal Endangered Species Act (ESA) has been in place since 1973 to “protect critically imperiled species fromextinction” and is implemented by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). When the federal government lists a species as threatened or endangered under the ESA, the law can limit and prohibit the use of land and water, decrease property values, diminish military preparedness and add regulatory hurdles and costs to otherwise lawful activities. Today, 103 species are listed as threatened or endangered in Texas, and more than 120 are subject to review under the ESA – and these numbers continue to grow.

As currently enforced and written, the outdated ESA too often relies upon unscientific data to make decisions that can restrict economic activity and impact private property owners, industries, communities, local and state governments. While it is important to protect our natural resources, the ESA should only be applied when complete and accurate scientific data show a species is imperiled.

Major ESA Issues: When FWS announced the proposal to list the species, little information on the species’ range or population in Texas was available. An intensive research effort found 28 additional locations of the lizard. This research contributed to FWS’ decision to not list the species as endangered.

KEY CHALLENGES POSED BY AN OUTDATED ESA MULTI-DISTRICT LITIGATION

There has been a dramatic rise in the number of species being petitioned for listing through the use of “mega-petitions” – petitions that include a large number of species. For example, from 1994 to 2006, the FWS was petitioned to list an average of 20 species per year. In contrast, since 2007, FWS has been petitioned to list more than 1,250 species – nearly as many species as the agency listed during the previous 30 years.

These mega-petitions, coupled with the one-year deadline the ESA       requires for the federal government to make a listing decision, led to an untenable process for listing species under the ESA. A backlog of species under review for listing developed that, in turn, prompted petitioners to sue because of the exceeded of the extended deadline and to force FWS to make a listing decision. These lawsuits were combined in a settlement agreement approved on September 9, 2011, by the U.S. District Court for the District of Columbia. This agreement included a multi-  year work plan with deadlines for FWS ro review the status of more than  1,000 species across the United States. Of most concern about the  agreement is the insufficient science used to set the schedule, complete l  lack of transparency, and limited opportunity for affected parties to provide input.

ALMOST IMPOSSIBLE TO OVERTURN A LISTING

While groups use the legal system to force consideration of species for listing, it is very difficult for stakeholders to stop a listing through legal action. Although it is difficult to stop a listing in this way, it is important to maintain your legal right. 

Federal courts ordinarily are empowered to review only an agency’s ‘final Action” under the Administrative Procedures Act (APA) (e.g., final listing rule). See e.g., In re Polar Bear Endangered species Act Listing & Section 4(d) Rule Litigation, 709 E.3d 1, 17 (D.C. Cir. 2013). Further the ESA only authorizes judicial review of ‘not-warranted” and “warranted-but-precluded” findings, but does not authorize judicial review of “warranted” findings. 16 U.S.C. § 1533(b)(3)(C)(ii). A person aggrieved by a warranted finding may only challenge the FWS’ final rule listing the species. When FWS proposes to formally list a species, the ESA provides no means for a person to assert that formal listing of the species is precluded. See In re Endangered Species Act Section 4 Deadline Litig., 704 F.3d 972, 977-978 (D.C. Cir. 2013).

It is also extremely difficult to overturn a listing decision. Under the APA’s standard of review, there is a presumption of validity of federal agency action. Generally, if the federal listing agency considers relevant factors and explains its decision, a court will not substitute its judgment for that of the federal listing agency. Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 731 F. Supp. 2d 15, 22 (D.D.C.2010). Of the approximately 30 cases where plaintiffs have challenged a listing decision in federal court, roughly 5 were remanded back to the listing agency, meaning the courts, in thevast majority of cases, have affirmed the agency’s decision to list the species. In only 2 of those 5 cases that were remanded back to FWS was the species taken off of the endangered species list.

CONFRONTING THE CURRENT ESA

TEXAS LEADING THE WAY

Understanding the importance of protecting Texas’ economy from the continued threat of regulatory actions under the current ESA law, the state has taken the following actions to date:

? 2009 — Created the Interagency Task Force on Economic Growth and Endangered Species led by the Comptroller of Public Accounts. The Task Force provides policy and technical assistance to help Texans navigate the regulatory ESA process and minimize its impacts.

? 2011 — Provided authority to the Comptroller of Public Accounts to facilitate the development of candidate and habitat conservation plans and hold related federal permits in order to provide regulatory certainty for Texas industries and landowners while protecting the state’s continued economic activity.

 RESEARCH – ADDING SCIENTIFIC RIGOR TO  THE ESA

 Gathering concise and accurate scientific data  is one of the best defenses against the  increasing number of species under review in  Texas and across the United States that can  greatly impact our economic well-being. The  ESA requires that listing decisions be based on  the “best scientific and commercial data  available,” but it does not define the term “best  available.” This ambiguity has allowed many  species to be listed with little or no data.

 Providing accurate science helps raise the standard for data used in listing decisions and ensures the best science is available when determining if a species should be listed. In 2013, the Texas Legislature provided $5 million to the Comptroller of Public Accounts to support high quality species research through state public universities.

With input from research leaders, FWS, non-governmental organizations and industry representatives, species will be prioritized for funding based on data gaps, urgency in listing and potential economic impacts. Selected research projects are subject to:

? Strong internal controls and procedures including real-time peer review/research verification, independent third party audits, completion of research milestones and deliverables and compliance with state procurement guidelines.

? Rigorous scientific standards by using accepted scientific protocols and methodologies and complying with explicit research specifications/requirements, quality controls, and assurance mechanisms to ensure data accuracy.

CASE STUDIES:

DUNES SAGEBRUSH LIZARD

The FWS did not list the species due to not only conservation efforts in place but the new information brought forth from the continued focus on gathering additional scientific data in Texas and New Mexico. According to FWS, “After a careful analysis of the scientific data and the protections provided by the voluntary conservation efforts, Service biologists determined the lizard is no longer in danger of extinction, nor likely to become endangered in the foreseeable future.”

NORTHERN SPOTTED OWL

The northern spotted owl was listed as threatened on June 26, 1990, dramatically impacting the logging industry in the federal old-growth forests of northern California, Oregon, Washington and British Columbia because FWS believed that the main threat to the spotted owl was the loss of habitat caused by logging operations. Since the listing of this species, logging in the region’s national forests has dropped from 4 billion board feet per year to about half a billion board feet per year; as many as 200 mills have closed. The sacrifices made by the logging industry, however, did not stop the decline in the northern spotted owl population. Twenty years after the owl was listed as threatened, the owl population continues to fall by an average of about 3 percent annually. Recently, FWS has discovered that “the barred owl constitutes a significantly greater threat to spotted owl recovery than was envisioned when the spotted owl was listed in 1990.”

STRATEGIES FOR MODERNIZING THE ESA 

? Address the administrative logjams created by “mega-petitions” by modifying 16 USCS § 1533 to provide more flexibility and time for federal listing agencies to review petitions to list species.

? Insert a high standard for species research and data, emphasizing recent, independent peer-reviewed empirical data.

? Provide statutory incentives for proactive species conservation and codify in statute assurances available to landowners through candidate conservation agreements.

? Apprise individuals and industries affected by potential ESA listings and settlements, allowing them an opportunity to be heard.

? Amend 16 USCS § 1540(g)(4) to shift the methodology for awarding attorney fees to the “prevailing party” standard.

? Focus on species recovery and ultimately delisting of species.

? Generally improve transparency in regard to ESA. Require listing agencies to develop, publish and regularly update a comprehensive list of species under review.

WHAT ALL STATES CAN DO

? Stay informed.

? Understand the ESA and what legal options are available.

? Work with broad coalitions to build consensus and create solutions.

? Identify research gaps and obtain scientific data.

? Work with Congress to address shortfalls in the current ESA process to modernize the law and ensure there is a balanced approach to species conservation. 

Endangered Species Task Force Meeting

The next meeting of the Interagency Task Force on Economic Growth and Endangered Species will take place on Dec. 2, 2014, at 2 p.m. in the William B. Travis Building, 1701 N. Congress Ave., Room 1-100, Austin, Texas.

This is a public meeting, but we encourage you to please RSVP by emailing Keeping.TX.First@cpa.state.tx.us to ensure enough copies of handouts can be provided.

Opportunities for Public Comment

•       Proposed Definition of Waters of the United States Under the Clean Water Act (U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers) – Due Nov. 14, 2014

•       Proposed Critical Habitat Designation for the Yellow-Billed Cuckoo (U.S. Fish and Wildlife Service) – Jan. 12, 2015

•       Proposed Clean Power Plan (EPA) – Due Dec. 1, 2014

•       Find other important dates and deadlines

Please visit www.KeepingTexasFirst.org to stay informed and get involved with endangered species, air and water issues that may affect our state.

Source used was The Texas State Comptroller compiled this informational report.