The House of Representatives Passes Legislation to Modify the Endangered Species Act to Require Transparency in the Listing Process

The House of Representatives passed a bill which would require federal agencies involved in the listing process to publish data they use to determine whether a species should be designated as “endangered” or merely “threatened” and further directed the federal government to provide states with data used to make a decision on an endangered species before it issues a final ruling.

Additionally, the measure would require the Interior Department to report annually to Congress on the amount of money and staff spent on lawsuits related to enforcing the Endangered Species Act, which has been in place since 1973.

While the legislation has a very uncertain future in the Senate and has been threatened with a veto by the White House, the subject matter of the bill brings to light serious concerns with the manner in which the Fish and Wildlife Service direct the listing process.

Critics of the listing process often times site to the scant detail contained in the public record and the seeming lack of consideration given to submittals of data and information by the states which ultimately leave parties at a loss to determine how the agency has made its ultimate determinations and the reasons why certain information was seemingly dismissed and others were determined to be best available data.

As listings become more frequent as a result of the settlement reached by environmental groups and the government earlier the spring, the fight to define what is best available data, the standard contained in the Act, will take on new meaning and will be at the center of likely litigation.

Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment.
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