Endangered Species Act Congressional Working Group Releases Findings

The Endangered Species Act (ESA) Congressional Working Group released a final report which contained its findings and recommendations focusing on the effectiveness and workability of the ESA.  The Working Group consists of thirteen members of the House of Representatives and was formed in May 2013 to examine numerous questions related to the implementation and effectiveness of the ESA, which has not been updated by congress in over twenty-five years and has less than a 2% success rate of removing species from the endangered species list in forty years.  The Working Group concluded that there is a continued need for the ESA, but recommended changes in the following categories: 

  • Ensuring greater transparency and prioritization of ESA with a focus on species recovery and de-listing;
  • Reducing ESA litigation and encouraging settlement reform;
  • Empowering states, tribes, local governments and private landowners on ESA decisions affecting them and their property; and
  • Requiring more transparency and accountability of ESA data and scient.

The Working Group recognized the significant increase in litigation on both substantive and procedural grounds.  In 2011, the U.S. Fish & Wildlife Service (FWS) negotiated two litigation settlements with the Center for Biological Diversity and Wildearth Guardians which requires FWS to make listing decisions on over 250 candidate species within a period of six years.  The settlements, however, did not limit other environmentalist groups from filing additional lawsuits and didn’t even limit the Center for Biological Diversity or Wildearth Guardians from future filings.  In fact, in July 2012, the Center for Biological Diversity filed a petition with FWS targeting 53 amphibians and reptile species in 45 states.  Recognizing this recent trend of “sue and settle”, the Working Group stated:

Current implementation of ESA is focused too much on responding to listing petitions and unattainable statutory deadlines, litigation threats and ESA regulatory mandates, rather than on defensible policies, science or data to recover and de-list species.  This slows or halts a multitude of public and private activities, even those that would protect species.

In the conclusions related to ESA litigation and settlement reform, the Working Group made three significant recommendations.

  1. Transparency and Flexibility of Closed-Door Settlements/Deadlines.  The Working Group recommended flexibility in ESA listing and habitat designation deadlines to more appropriately serve the interests of private property owners, states, tribes, and local governments and to disincentivize the “sue and settle” strategies of environmentalist groups.  It also recommended that the details of consent decrees should be disclosed to Congress.  Those consent decrees should be subject to an appropriate NEPA process to ensure appropriate public input and the inclusion of the best scientific data in the decrees.
  2. ESA Litigation Transparency and Reform.  The Working Group recommended that litigants be responsible for their attorney’s fees and expenses to avoid repeated litigation and encourage the pursuit of cases based only on substantive matters.  Additionally, the Working Group recommended that ESA lawsuits should only be permitted in federal courts in a state where the species is primarily located to discourage forum shopping.  Finally, the Working Group recommended that federal agencies maintain complete and accurate records of federal funding spent on ESA-related litigation, and report those results to Congress.
  3. Curbing Excessive Taxpayer Funding of ESA Attorneys’ Fees.  The Working Group recommended a cap on the hourly fees paid by the government to attorneys for ESA litigation.  The Group also recommended that settling parties should no longer be viewed as “prevailing” parties, removing their entitlement to attorneys’ fees awards.  Finally, the Working Group recommended that any organization or individual that files ESA-related lawsuits should be barred from receiving federal taxpayer-funded grants, removing any implication that ESA lawsuits are subsidized by taxpayers.

To view a complete copy of the Endangered Species Act Congressional Working Group’s Report, Findings, and Recommendations, please follow the link at: http://esaworkinggroup.hastings.house.gov

Laura Patterson Hoffman focuses her practice in the areas of environmental and regulatory law, energy, tort and business litigation. Hoffman regularly assists energy producers with compliance issues and litigation relating to the Clean Water Act and other environmental permitting issues. She has practiced in federal and state courts and before the Kentucky Office of Administrative Hearings. Hoffman has also engaged in extended negotiations with the Kentucky Cabinet for Energy and Environmental Protection and various environmentalist groups. She also has experience in groundwater contamination litigation and contractual disputes.
 
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