Key Environmental Law Ever-Tangled in Litigation
By Bob Berwyn, 3-15-06
The American Bar Association's environmental law conference at Keystone,
Colorado, drew several hundred attorneys, and it may take all of them –
and then some – to deal with the ever-growing mountain of legal battles
surrounding the Endangered Species Act (ESA).
"It's death by a 1,000 cuts," said Eileen Sobeck, a U.S.
Department of Justice attorney who handles many endangered species cases for
the Department of the Interior. "The Department of Justice and the
Department of Interior can't handle the volume. There are 30 challenges to
critical habitat pending (in court) in California alone," Sobeck said
last weekend during a panel discussion on the big daddy of environmental
laws.
While the discussions didn't focus on the Rocky Mountain region, the
implications are obvious. Critical habitat designations and other management
issues associated with far-ranging species like Canada lynx have the
potential to affect huge amounts of territory, both on public and private
lands. Given the rapid pace of exurban development in the region, coupled
with the accelerating global wave of species extinctions, it's likely that
the wrestling matches over the act and its application will continue for a
long time to come.
The U.S. Fish and Wildlife Service, charged with managing rare and
threatened plants and critters, can't seem to win for losing. Some critical
habitat cases are in their third or fourth round of litigation, said
panelist Michael Senatore, with the Washington, D.C.-based Defenders of
Wildlife.
Sometimes, as was recently the case with Canada lynx, the agency is
challenged when it doesn't designate habitat quickly enough. When it does
come out with a critical habitat delineation, challenges frequently come
from both sides.
For example, when the Fish and Wildlife Service finally did propose a
critical habitat designation for lynx, it didn't include any territory in
Colorado, where a state-led re-introduction effort has established a
tentative population of the secretive cats. That didn't sit well with
Senatore's group, which wants the agency to protect the state's lynx with a
critical habitat designation.
In other cases, the challenges come from industry and development interests,
who also frequently ask the courts to decide whether the agency made the
right designation. All in all, it's a big, tangled legal mess, and there's
no end in sight, according to the panelists, who said ESA reform was
unlikely during the current session of Congress, based on the existing
political climate.
Part of the discussion focused on how and whether proposed changes to the
ESA might affect issues that have been under litigation. One bill,
introduced in the House by California Republican Richard Pombo, would gut
several essential provisions of the law, according to most conservation
groups.
"It's an exceedingly extreme bill," said Senatore. "It's
probably dead on arrival in the Senate. They've seen it for what it
is," said Senatore, referring to moderate members of the Senate's
Environment and Public Works Committee.
Needed most is legislative language to address critical habitat
designations, he said, explaining that multiple rounds of litigation waste
time and money without doing anything to protect endangered species. Also
needed are more conservation incentives for private landowners, he added.
But even if Congress does manage to get its act together and come up with a
bipartisan, compromise approach to amending the law, it won't end the legal
battles. Any changes to the ESA would create new areas for litigation,
Sobeck concluded.
