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House Panel Probes Workings of ESA by Mateusz Perkowski Capital Press, December 15, 2011

Doc Hastings calls statute 'tool for excessive litigation'

The House Committee on Natural Resources will be examining the effects of the Endangered Species Act on job creation and economic growth.

During the first of several planned oversight hearings, committee chairman Doc Hastings, R-Wash., criticized the statute for becoming "a tool for excessive litigation."

The multitude of lawsuits has drained the government's resources for actually protecting species, he said during a hearing in early December.

"The litigation mindset that is consuming the Endangered Species Act has had considerable job and economic impacts across the West, unnecessarily pitting people against species," said Hastings.

Critics of the ESA urged committee members to make key changes to it.

The biggest reason the act has been used to stop economic progress is that it always places species above human welfare, said Brandon Middleton, an attorney for the Pacific Legal Foundation property rights group.

A 1978 U.S. Supreme Court decision -- Tennessee Valley Authority v. Hill -- has established species recovery as the "highest of priorities," Middleton said.

In that case, the court found that a dam project should have been stopped to prevent harm to the endangered snail darter, a small fish.

As a result of that precedent, federal courts cannot consider economic harm to humans when evaluating lawsuits over alleged Endangered Species Act violations, Middleton said.

Congress should amend the statute so the needs of the human species are balanced against the recovery of listed species, he said.

Karen Budd-Falen, a natural resource attorney who has criticized environmental litigation, said the ESA would be more effective if the federal government had more time to meet deadlines.

Under the act, the U.S. Fish and Wildlife Service has three months to respond to a petition that requests federal protection for a species. If such a listing may be warranted, the agency has a year to make the final decision.

Environmental lawsuits largely target the government's time frame for evaluating species, rather than disagreeing with a listing decision itself, she said.

Thousands of pending petitions basically "crash" the system and prevent the agency from working on other recovery measures, like conservation plans with landowners, Budd-Falen said.

"The federal government can't comply with these time frames," she said.

Proponents of the current ESA system rejected the implication that environmentalists view litigation as a money-making scheme.

Representatives of the Center for Biological Diversity and WildEarth Guardians -- common litigants in such cases -- said attorney fees recovered from the federal government comprise only a small portion of their budgets.

"We do not do this for the money. We do this to protect species," said Jay Tutchton, general counsel for WildEarth Guardians. "We typically never receive what we ask for. It's not a productive way to make a living."

According to the WildEarth Guardians 2010 annual report, it received $153,545 in legal fees. The Center for Biological Diversity received $685,981 in legal returns, according to its 2010 annual report.

Tutchton defended the practice of suing the federal government for missing petition deadlines, saying such litigation is necessary to keep the government accountable.

"Deadlines are a method to force recovery," he said. "It's the chronic disregard of deadlines that has, for some species, kept people from working on their recovery sooner."

Kieran Suckling, executive director of the Center for Biological Diversity, said the current program doesn't need to be changed -- rather, more money would allow it to perform all the necessary functions so as to prevent the need for litigation.

"In many regards, adequately funding the current program is all that's needed," he said.

John Leshy, a law professor at the University of California-Hastings, said that the federal government actually wins most of the lawsuits accusing it of violating the Endangered Species Act.

However, the federal courts play the crucial role of a neutral decision maker, he said. "I think it would be a terrible mistake to take the courts out of it."