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Good News for a Change by Robert Stokes, Natural Resource Economist Wheat Life, October 2007

Good news for a change. In a June, 2007 decision, the U.S. Supreme Court said the Endangered Species Act (ESA) does not trump other acts of Congress. In National Association of Homebuilders versus Defenders of Wildlife (hereafter Homebuilders v. Defenders), the Court held that Clean Water Act standards for delegating permitting authority to states were specific congressional mandates. Therefore, the Environmental Protection Agency was not required to submit it implementing actions to the U.S. Fish and Wildlife Service for ESA compliance review.

Future events will determine how big a hole that ruling blows in ESA. It could be a big one. Hopefully, it will be.

In the 1978 snail darter case (TVA v. Hill), chief Justice Warren Burger wrote for the court that he was "hard pressed to find a statutory provision any plainer than that [in ESA] commanding federal agencies to insure their actions do not jeopardize the continued existence of an endangered species." Said Burger, "This language admits of no exceptions."

Most Americans believe it is ethically wrong and intellectually misguided to say one goal trumps all others, in all situations, irrespective of costs and offsetting consequences. ESA supporters used a ploy to convince (fool?) Congress into accepting the absolute language referred to by Chief Justice Burger. Their ploy was to describe the law as an emergency measure, applicable only when "ordinary" fish and wildlife conservation measures failed to avert extinction. By "ordinary" measures, ESA supporters evidently meant measures that balance multiple objectives, including economics and other non-wildlife considerations, against the welfare of endangered species.

Over 30 years of experience has revealed how far this rhetoric of emergency response varied from real intentions. We now understand only too well the willingness of ESA supporters to change all the rules of fish, wildlife and habitat conservation, putting "critters" - and environmental advocates - in the front of the bus and other people in the back - ever and always.

The "critters first game began with the environmentalist lawsuit that culminated in the Supreme Court's TVA v Hill decision. That decision could have compelled the federal government to write off vast sums of already spent tax dollars by canceling Tennessee's nearly completed Tellico Dam. The ostensible motive for the litigation was saving an obscure fish called the snail darter. The same members of Congress who had just been convinced (fooled) into passing ESA - as an emergency species saving measure - voted to override this obvious attempt to use the law for different purposes - in this case as a weapon against a project detested by environmentalists long before they heard of snail darters. Thanks to that congressional override, Tellico Dam was completed and still stands. Snail darters also survived. After the Tellico Dam controversy, snail darter populations were found beyond Tellico's influence. The species was later downgrade from endangered to threatened, a reclassification suggesting reduced extinction risk.

In similar fashion, anti-logging environmentalists used spotted owls to shut down Northwest National Forests during the 1980s. In Oregon, anti-irrigator forces used Klamath Basin suckerfish to shut off water to a significant portion of Klamath Basin farmers and acreage in 2001. (E-mail me for citations to prior columns describing how definitional tricks and gimmicks were used by dam busting environmentalists - in and out of government - to justify the ESA listing of Columbia River salmon and to create a bogus Columbia River "salmon crisis" in the public mind and official record. for other examples, Google the phrase "junk science.")

In American law and politics, common sense and justice take slow, circuitous trails, but eventually find their destination. Homebuilders v Defenders may have begun such a trek. the exact holding of the case is that actions by federal agencies do not require review by the Fish and Wildlife Service or NOAA-Fisheries, if they are mandated by Congress in a sufficiently specific manner, within broad congressional mandates, must be reviewed by those ESA enforcement agencies.

To be legal, federal actions must be congressionally mandated. To be practical, they require agency discretion. Classifying those actions as either mandated or discretionary will involve interpretation and, therefore, dispute. Expect environmentalists to focus on discretionary aspects, which keep federal actions subject to ESA review. It will necessarily fall to representatives of past and potential ESA victims, such as Western natural-resource producers and rural residents, to build arguments that agency actions are congressionally mandated in sufficient detail, therefore, immune to ESA review.

The only way rural Westerners can lose in the impending struggle over this issue is by not stepping to the plate and swinging at the ball the Supreme court just pitched them. A win for natural-resource producers would disperse ESA-related decisions making throughout the federal government, as individual agencies decide whether (or not) to submit their actions for ESA review. Often, and beneficially, those decisions will be made without participation by the self ordained, green-minded clergy that staff the pro-envrionmentlist ESA enforcement agencies.

This need not, and likely will not result in uncontrolled pillage of wildlife. Davy Crockett is long dead. What it can, and should lead to is partial restoration of old-fashinoed - Theodore Roosevelt, Gifford Pinchot type - balanced environmentalism. In some cases, non-ESA reviewed agency decisions will protect wildlife against economic interests. Other decisions will support economic and other (non-wildlife) public interests, at the expense of wildlife, perhaps even at-risk populations. So it should have always been. So it may now be, at least sometimes.

Even a losing fight could have constructive results. Lenin once said, "When the time comes to hang the capitalists, one of them will sell us the rope." The history of ESA reveals the kind of parochialism he was talking about. Homebuilders v Defenders strikes a blow for all ESA victims - present and future, private property owners and public land users, Westerners and non-Westernerers, people with highly organized lobbies and the unorganized. A political struggle over implementation of that decision offers opportunities for coalition building among those diverse groups, each having limited influence in today's urbanized America, but - if united - constituting a power full force. Once tested, that power will not be forgotten.

Let the - new - game begin.