Yesterday, the House of Representatives approved the Open Book on Equal Access to Justice Act (H.R. 2919), which would amend existing law to require the Executive Branch to provide an annual report to Congress on the amount of fees and other expenses awarded to prevailing parties, other than the United States, in certain administrative proceedings and civil suits, including certain lawsuits under the Endangered Species Act and other environmental statutes. The Act would require the report to account for all payments of fees and other expenses awarded made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to nondisclosure provisions. The Act would also require the United States to create and maintain online a searchable database containing information related to the civil action or administrative proceeding and the award. The bipartisan bill, which was approved by the House Judiciary Committee on February 5, 2014, was approved by the House after 40 minutes of debate.
Earlier this week, the House Natural Resources Committee held a hearing to discuss Endangered Species Act (ESA) reform. The hearing focused on four bills that seek to require data and spending transparency under the ESA.
As previously reported, an ESA Congressional working group released a final report stating that the ESA “is not working.” The proposed bills are a result of that final report. Despite a general agreement that the 40-year old ESA should be updated, the hearing displayed the divide between Republicans and Democrats over how to do so.
One of the bills discussed at the hearing, H.R. 4315, would require the Secretary of the Interior to publish the “best scientific and commercial data available” used to support a listing decision. Currently, not all data is released to the public, such as proprietary information. According to a report by Emily Yehle from E&E news, critics of the bill claim that the scope of its reach is too broad. For example, sometimes information is classified data from the U.S. Department of Defense. H.R. 4317, seeks to define the “best scientific and commercial data available” to include “all data submitted by a State, tribal, or county government.” Critics claim this bill would presume that data from a State, tribal, or county government is the “best” data available, thus negating the purpose of requiring use of the “best” available data – regardless of its source.
Additionally, H.R. 4316, would require the U.S. Fish and Wildlife Service to disclose the amount of funds expended in ESA-related lawsuits, the number of employees dedicated to litigation efforts, and any attorneys’ fees paid to successful litigants. H.R. 4318, would limit reimbursement of attorneys’ fees to $125 per hour.
Proposed Bill Seeks to Require Federal Agencies to Count Species on State, Tribal, and Private Lands before Listing the Species under the ESA
Republican Congressman Chris Stewart (UT) recently introduced a bill (pdf) that would amend the Endangered Species Act (ESA) to require federal wildlife agencies to include the number of species found on state, tribal, and private lands in its official count when determining whether a species should be protected under the ESA. Currently, the ESA does not include a specific requirement regarding how to account for a species’ population. Rather, federal agencies are required to use the “best scientific and commercial data available” when determining whether a species is endangered or threatened.
According to a report by Jessica Estepa from E&E News, the legislation was introduced to address a specific issue with the Utah prairie dog (Cynomys parvidens), which is found in Rep. Stewart’s district. The number of individuals found on state, tribal, and private lands – land that is currently not being considered by federal agencies when evaluating whether to list the prairie dog – could be in the thousands and may impact the determination of whether the species is on the path to recovery.
Members of the Endangered Species Act (ESA) Congressional Working Group recently released a final report (pdf) asserting that the ESA “is not working” and providing four recommendations for improvement.
The report is the result of an eight-month effort led by Republican Representatives Doc Hastings (WA) and Cynthia Lummis (WY) to examine the ESA. The group received input from hundreds of individuals on how the ESA is currently being implemented, and whether it could be updated to be more effective. The report concludes that “[a]fter more than 40 years, sensible, targeted reforms would not only improve the eroding credibility of the Act, but would ensure it is implemented more effectively for species and people.” According to the working group, only 2 percent of targeted species have been removed from the ESA list. The top recommended improvements include focusing on species recovery and delisting, improving scientific transparency, reforming litigation and settlement practices, and improving state and local participation.
Critics claim that the report is misleading since 99 percent of the species protected under the ESA have been saved from extinction, such as the bald eagle and the gray wolf, with over hundreds of species on the path towards recovery. Others claim it is unlikely that any proposed changes will succeed due to the strong political divide in Washington.
On January 17, 2014, President Obama signed into law the $1.1 trillion dollar Omnibus Spending Bill, thereby funding the federal government through October 1. Included in the Bill was a provision directing the Secretary of the Interior to reinstate an exemption that exempted the scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope (Addax nasomaculatus) from the Endangered Species Act. The rider was introduced by Representative John Carter (R-Tex). As we recently reported, proponents of the rider believe that exempting the species will incentivize ranchers to maintain their populations in order to profit from hunting revenue. Since the species were re-listed as endangered in 2012, their populations have fallen significantly.
House Natural Resources Committee to Hold Hearing on Department of the Interior's 2011 Endangered Species Act Settlements
On Thursday, December 12, 2013, the House Natural Resources Committee (Committee) will hold a full committee oversight hearing (pdf) titled “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies.” This hearing is part of a series of hearings announced by the Committee to review the Endangered Species Act (ESA) and conduct an assessment of the law’s strengths and weaknesses.
As we previously reported, in 2011, the U.S. Fish and Wildlife Service (Service) developed a six-year work plan that would allow it to systematically review and address more than 250 candidate species as part of a settlement agreement with WildEarth Guardians and the Center for Biological Diversity. Under the settlement agreement, the Service agreed to prioritize listing decisions for several candidate species, and the environmental groups agreed to refrain from filing actions to compel findings on new listing petitions that they submit.
Republicans have largely condemned the settlement, arguing that the “sue-and-settle” approach has led to excessive litigation that requires federal agencies to spend great time and financial resources addressing lawsuits rather than species recovery. The Service, on the other hand, regards the settlement as a success, noting that setting deadlines for final decisions on candidate species has spurred cooperation from states and private landowners in creating conservation plans that address concerns about the species without necessarily requiring the need for listings.
The Committee’s hearing will be held at 10:00 a.m. EST, in room 1324 Longworth House Office Building, Washington, DC.
On October 10, 2013, the Endangered Species Act Congressional Working Group (Working Group) held a forum entitled “Reviewing 40 Years of the Endangered Species Act and Seeking Improvement for People and Species.” The forum featured 17 panelists, who discussed ways in which the Endangered Species Act (ESA) can be strengthened and improved to better serve the needs of both species and people. Participants specifically highlighted the need to empower states, local governments, and private landowners to conserve species and avoid federal listings, the need for balance within the law, the importance of transparent data and science, and the need to prevent the ESA from being used as a tool for lawsuits and closed-door settlements with litigious groups.
While the Working Group advertised the forum as including a diverse group of panelists, as we reported here, there was some dispute over whether representatives of key environmental groups were invited to attend. Notably absent from the forum were representatives from the Center for Biological Diversity, WildEarth Guardians, and Defenders of Wildlife. Rather, the panel included representatives of and advocates for regulated entities, including oil and gas executives, as well as state elected officials. A representative from the Nature Conservancy participated, though that organization does not engage in routine public interest litigation over listed species.
The Endangered Species Act Congressional Working Group is scheduled to hold a forum tomorrow morning entitled "Reviewing 40 Years of the Endangered Species Act and Seeking Improvement for People and Species." A press release issued by the Working Group states that the forum "will feature a diverse group of invited stakeholders who will testify on all angles of the ESA, its impacts on species and people over the last 40 years, and potential improvements going forward." According to a recent story published by the Environment & Energy Daily entitled Sides spar over invite list as GOP working group prepares to host forum on ESA reform, however, there is some dispute as to whether the forum will feature a "diverse group" of stakeholders. Phil Taylor, the author of the story, reports that although representatives from the Center for Biological Diversity and Defenders of Wildlife are listed as invited panelists, according to statements from the representatives, no invitations were ever received. The story does not state whether the individuals plan on attending the forum.
On August 22, 2013, U.S. Representative Cynthia Lummis (R-Wyo) and the Chairman of the House Natural Resources Committee, Doc Hastings (R-Wash), announced that the Congressional Endangered Species Act (ESA) Working Group will be holding field hearings in Casper, Wyoming and Billings, Montana to find ways to improve the ESA for both species and people. The hearings, entitled “State and Local Efforts to Protect Species, Jobs, Property and Multiple Use Amidst a New War on the West,” will focus on efforts to preserve wildlife while maintaining jobs in agriculture, energy, and recreation.
As we previously reported, House Republicans created the ESA Working Group to examine the ESA through a series of events, forums, and hearings to invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved. The first of these efforts kicked off in June 2013.
The first of the two-part field hearings will take place in Casper, Wyoming on Wednesday, September 4, 2013 at 9:00 a.m. MDT at the Wyoming Oil and Gas Conservation Commission. The second will be held the same day at 1:30 p.m. MDT at Cisel Hall (MSU-Billings).
Yesterday, the House Committee on Natural Resources held a second hearing regarding implementation and impacts of the Endangered Species Act. Today's hearing was titled: Transparency and Sound Science Gone Extinct?: The impacts of the Obama Administration's Closed-Door Settlement on Endangered Species and People. In a summary description issued before the hearing, the Committee stated that it anticipated the hearing would "highlight how the lack of data transparency is leading to increased numbers of species being listed and critical habitat being designated under the Endangered Species Act (ESA)." The witnesses included, among others, representatives from the Pacific Legal Foundation and U.S. Fish and Wildlife Service.
Today, the House Natural Resources Committee is holding a full committee oversight hearing on species conservation efforts undertaken at “on-the-ground-levels” in an effort to compare those efforts with the effectiveness of Endangered Species Act (ESA) lawsuits. The hearing, entitled Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices, is the first in a series of hearings planned by the House to review the effectiveness of conservation efforts under the ESA.
Natural Resources Committee Chairman Doc Hastings (R-WA) said of today’s hearing that it “will provide an opportunity to hear what is working well right now at the state, tribal, and local levels as opposed to ESA-related litigation that divert time and resources away form actual recovery efforts.” He also noted: “Many states, tribes and local communities are effectively implementing conservation efforts to help species. Those closest to the species know firsthand how to protect species better than distant bureaucrats and litigious groups who often hinder the ESA through lawsuits and closed-door settlements.”
For their part, many House Democrats and environmentalists argue that ESA lawsuits are a legitimate measure in their arsenal for protecting endangered and threatened species. For example, Brett Hartl, endangered species director with the Center for Biological Diversity (CBD), said “Representative Hastings and his Republican colleagues are disturbingly out of step with most Americans, who overwhelmingly support protecting endangered species from extinction.” CBD is a frequent litigant in these ESA lawsuits. Hartl championed efforts by citizen and non-profit groups like CBD, stating, “[t]he lesser prairie chicken and sage grouse have declined by at least 90 percent over the past 100 years, but it wasn’t until citizens petitioned and sued to get protection for these animals that concrete state, local and private conservation efforts to save them from extinction began.”
Tomorrow, the House Judiciary Committee will hold a hearing on the “Sunshine for Regulatory Decrees and Settlements Act,” which would require agencies entering into consent decrees and settlement agreements to publish proposed versions of those agreements for public review and comment prior to entering into them. The bill is sponsored by Sen. Chuck Grasseley (R-IA) and Rep. Doug Collins (R-GA). The bill previously passed the House last year, but died in the Senate.
Republicans argue that the proposed bill would close a back door that environmentalists use to circumvent the usual rulemaking process. John Walke, the clean air and climate change director for the Natural Resources Defense Council disagrees, arguing that the proposed bill “is designed to obstruct enforcement of federal health, safety, environmental and consumer protection laws” and allow industry to exert undue influence over court actions.
The Judiciary Committee hearing will be held tomorrow, June 5, at 10 a.m.
House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY). The ESA Working Group will include a total of 13 republican members from a broad geographic range. It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people and threatened or endangered species and their habitat. Chairman Hastings noted that the ESA Working Group “is an opportunity to . . . have a fair, honest conversation and review of the current law.”
On March 21, 2013, Representatives Bill Flores (R-TX), John Carter (R-TX), K. Michael Conaway (R-TX), Mac Thornberry (R-TX), and Steve Pearce (R-NM) introduced a bill (pdf) to curtail allegedly excessive Endangered Species Act (ESA) lawsuits brought by environmental groups. The bill would prohibit courts from approving ESA settlements, unless states and counties that would be affected by the settlements have also given their approval. Also aimed at limiting the amount the U.S. Fish and Wildlife Service (Service) can spend on ESA lawsuits, the bill would prevent litigants from recovering legal fees.
According to Rep. Flores, the bill is intended to “protect American citizens from the burdensome and costly regulatory impact of closed-door litigation settlements between special interest groups and the U.S. Fish and Wildlife Service.” Similarly, Rep. Conaway stated: “This legislation would … require that local communities have the opportunity to veto any settlements between the [S]ervice and these environmental groups.”
The bill was introduced as companion legislation to Senate Bill 19, which, as we reported here, was introduced by Sen. John Cornyn in February.
Yesterday, a Republican Senator from Texas, John Cornyn, introduced a bill (pdf) that would prohibit the U.S. Fish and Wildlife Service from settling environmental lawsuits without first publishing the complaint "in a readily accessible manner, including electronically," and allowing "affected parties" an opportunity to intervene. The bill further provides that the filing of any motion to dismiss or for entry of a consent decree based on a settlement agreement shall be prohibited until after affected parties have had a "reasonable opportunity" to intervene. Should a party intervene, the bill would compel the courts to refer the parties, including all that intervened, to either a mediation program of the court or a magistrate judge. The bill would also prohibit any award of litigation costs for certain "covered settlements," and prohibit the courts from approving a "covered settlement" until the settlement is approved by each state and county in which the Secretary of the Interior believes a species occurs.
As recently reported by a number of news agencies, President Obama will nominate Sally Jewell, the Chief Executive Officer of REI, to be the next Secretary of the Interior. If the nomination is approved by the Senate, she will be replacing a vacancy created by Ken Salazar, who announced in January that he will be stepping down at the end of March. It is anticipated that President Obama will make the announcement this afternoon.
On January 23, 2013, over 25 California delegates to the House of Representatives introduced a bill, H.R. 399 (pdf), addressing the federal rules requiring trees growing on levees to be removed. Specifically, the bill would require the U.S. Army Corps of Engineers (Corps) to review its policy about vegetation-removal on levees, in order to consider allowing variances on a regional or watershed basis.
The Corps established a national vegetation removal policy in the wake of the failure of levees during Hurricane Katrina. According to Rep. Doris Matsui (D-CA), the “[C]orps' current vegetation policy does not provide enough flexibility for the unique challenges of different regions across the nation, and particularly in California.”
The California Department of Water Resources (DWR) estimates that compliance with the current federal policy would cost at least $7.5 billion and would destroy important habitat for endangered species. Under the existing policy, original riparian forest would have to be removed; such vegetation is habitat to several endangered species, including Chinook salmon, valley elderberry longhorn beetle, and Central Valley steelhead. DWR is concerned that compliance both with the Corps’ vegetation removal policy and the Endangered Species Act would be unworkable.
As we reported here, the California Department of Fish and Wildlife filed a lawsuit against the Corps in February 2012. That suit is still pending.
Congressman Markey Issues Sharp Criticisms of Draft Interpretation of "Endangered" and "Threatened" Species
As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.
In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking Democrat on the Committee on Natural Resources, expresses his "concerns that this policy has the potential to undermine several key provisions of the ESA by setting the bar for listing declining species at much too high a threshold." So high, he argues, that "the bald eagle never would have been listed as an endangered species in the lower 48 States" because healthy populations of the bald eagle lived in Alaska "[e]ven during the worst era of DDT pesticide usage . . . ."
Markey also criticized the draft policy for ignoring "Congress' intent regarding the purpose of the ESA by refusing to consider the historic distribution of a species when making listing decisions about whether a species is in danger of extinction in a significant portion of its range."
Had such a policy been in place in the 1970s, Markey claims, "Americans would have had to travel to the most remote parts of Alaska to view species like the bald eagle, grizzly bear, or the gray wolf." According to Markey, in passing the ESA, Congress did not sanction such a "living museum approach" to protect imperiled wildlife, but instead sought to protect ecosystems and restore species to their historic ranges.
The key provisions in the ESA provide that "'endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range . . . [,]" and "'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."
But the ESA itself does not include a definition of "significant portion" of a plant or animal's range.
Under the draft policy, when making listing decisions the Services would:
1. Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;
2. Limit consideration of a species' status to the range used by a species at the time the listing decision is being made; and
3. Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.
According to Markey, under the first aspect of the draft policy, "the FWS would only protect an imperiled animal or plant species when the decline within a significant portion of that species' geographic range implicates the 'viability' of the species as a whole. In other words, the only parts of a species' range which matter are those portions that, if lost, would lead to the global extinction of that species."
With respect to the second aspect of the draft policy, Markey claims it "could make it even more tempting for future political appointees within the Department of Interior, as well as some members of Congress, to meddle with or defund the listing process because any delay in listing would invariably shrink the geographic range that a declining species currently occupies."
Markey argues that to be consistent with the ESA, Congressional intent, and the legislative history of the ESA, the Fish and Wildlife Service must instead develop and use "a precautionary, science-based standard for deciding when it is appropriate to protect a species under the ESA[,] [a]nd . . . must also devise a balanced, science-based approach for considering the historic range of declining species when making listing decisions as opposed to its [proposed] categorical approach where the historic range of any . . . species is always ignored."
Currently the 60-day comment period on the draft policy ends on February 7, 2012.
Several environmental organizations have requested that the comment period be extended, but with the deadline to comment just days away, the Services have not indicated that they will issue an extension.
Parts of National Oceanic and Atomospheric Administration to be Transferred to Department of the Interior
President Obama announced a government consolidation plan that would involve transferring parts of the National Oceanic and Atmospheric Administration ("NOAA"), which is currently part of the Department of Commerce, to the Department of the Interior. NOAA oversees marine wildlife, including endangered marine species. The Fish and Wildlife Service, which is an agency within Interior, oversees freshwater species and land-dwelling wildlife. In his remarks regarding the proposed consolidation, President Obama, suggested that having the two agencies that conduct oversight over species in separate departments was inefficient.
As reported by Jason Samenow in the Washington Post, the consolidation plan is facing growing opposition. Several environmental groups, including the NRDC have spoken out against the plan arguing that it could hinder the government's protection of the oceans and undermine the agency's independence. The National Weather Service Employee's Union is also opposed to the consolidation. However, not everyone thinks the consolidation is entirely bad. David Malakoff of Science quotes a former head of NOAA's marine fisheries program as stating that "The place that NOAA sits doesn't matter; what matters is that its operations need to be coherent and functioning" and that there are both advantages and disadvantages to the proposed consolidation.
House Republicans to Hold Hearing Investigating Impact of Habitat Protections for Southern California Fish Species on Water Supplies and Economy
In response to a letter from two local congressmen (PDF), Republicans from the Natural Resources Water and Power Subcommittee have scheduled an oversight hearing to examine the U.S. Fish & Wildlife Service’s recent designation of critical habitat for the Santa Ana sucker (Catostomus santaanae). As reported on this blog, the Service published a final rule (Dec. 14, 2010) designating critical habitat for the Santa Ana sucker, a small fish species occurring in southern California. The Final Rule designates nearly 10,000 acres in the Santa Ana and San Gabriel rivers and Big Tujunga creek, spanning San Bernardino, Riverside, Orange, and Los Angeles counties.
The hearing will be held October 18, 2011, 10:00 a.m. PST in the Highland City Hall in San Bernardino County. Ren Lohoefener, Regional Director of the Service, is scheduled to appear as a witness.
As reported in Environment and Energy Daily (Oct. 17, 2011), Water and Power Subcommittee Chairman Tom McClintock (R-Calif.) stated, "Regulatory excesses are imposing increasingly oppressive costs on operation of local water systems. . . This hearing will examine whether the enormous wealth consumed by these policies has made any significant contribution to enhancing endangered populations -- particularly compared to far more effective and less expensive alternatives." The field hearing’s title, "Questionable Fish Science and Environmental Lawsuits: Jobs and Water Supplies At Risk in The Inland Empire," reflects many Republican House members’ and critics’ objections to the sucker critical habitat. No Democrats are expected to attend.
In their letter requesting a field hearing, Representatives Ken Calvert (R-Calif.) and Jerry Lewis (R.-Calif.) linked the effects of ESA regulation, implementation, and litigation to the economic downturn: “California Water Agencies are receiving fractions of their total water allocations and California communities are experiencing record job losses due, in some instances, to water shortages . . .”
The conflict between the protections afforded listed species under the Endangered Species Act on one hand and water supply and economic impacts on the other is not novel. As widely reported on this blog, the Service has been engaged in protracted litigation over limitations placed on the State Water Project and Central Valley Project to protect the threatened delta smelt.
The Service’s action designating critical habitat for the sucker settled litigation initiated by California Trout and other environmental groups. On August 23, 2011, Bear Valley Mutual Water Company and several water districts and municipalities lodged a complaint in the United States District Court for the Central District of California challenging the Service's action designating sucker critical habitat within the Santa Ana River watershed in San Bernardino, Riverside, and Orange counties.
On October 13, 2011, the Subcommittee on Investigations and Oversight to the Committee on Science, Space, and Technology of the U.S. House of Representatives held a hearing on the nexus of science and policy related to the Endangered Species Act (ESA). According to a press release issued by the House, the purpose of the hearing was to "highlight how science is used in policy decisions that are made under [the ESA]." The witnesses at the hearing were:
- Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service
- The Honorable Craig Manson, General Counsel, Westlands Water District
- Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and Game
- Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources
- Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law
- Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists
The testimony of the witnesses is available here. At the hearing, Mr, Frazier who heads the endangered species program at the Fish and Wildlife Service, told lawmakers the Department of the Interior would hire independent experts to evaluate a finding of bad faith made with respect to the conduct of two Department scientists by a federal district court judge in a case involving the Service's 2008 biological opinion regarding the effects of the Central Valley Project and California State Water Project on the threatened delta smelt (Hypomesus transpacificus). (E&E News, Oct. 13, 2011, by Allison Winter.) We reported on the court's finding here and here.