Ninety percent of the of settlements federal agencies entered into with plaintiffs under the Endangered Species Act (ESA) were with environmental groups.
Environmentalists have been aggressively filing suits against the Interior Department and the National Oceanic and Atmospheric Administration (NOAA) for missing statutory deadlines under the ESA.
Two dozen environmental groups filed 79 percent of the 141 ESA deadline suits from 2005 to 2015, according to Government Accountability Office (GAO) data compiled by The Daily Caller News Foundation.
Interior and NOAA settled 101 of those lawsuits, 90 percent of which were with environmentalists who favor expanded federal control over development and private property. GAO’s data has Republican lawmakers concerned environmentalists effectively control federal agencies through legal action.
“Litigious special interest groups have paralyzed any hope of species recovery under the Endangered Species Act,” GOP Utah Rep. Rob Bishop told TheDCNF. “The latest report is a cry for help – a cry for reform.”
“The statue has been held hostage by radical agendas at the expense of species and taxpayers,” Bishop said.
Bishop says deadline suits allow environmental groups to control the agenda at Interior and NOAA all while locking out states and industry groups — a tactic Republicans call “sue-and-settle.”
“We need to move to a system that aims for recovery and delisting rather than the current unworkable foundation that adds more and more species to the list through lawsuits and closed-door settlements for a lifetime sentence,” Bishop said.
More than half of the lawsuits against Interior were brought by two environmental groups — The Center for Biological Diversity (CBD) and Wild Earth Guardians (WEG). Interior settled 83 percent of the lawsuits filed by CBD and 93 percent of the suits filed by WEG.
In total, ESA deadline suits resulted in more than 1,600 actions affecting 1,441 species. Most suits were related to “missed deadlines for issuing findings on petitions to list species,” according to the February 2016 GAO report from which TheDCNF gathered its data.
Federal agencies told GAO that legal settlements “did not affect the substantive basis or procedural rule-making requirements” such as “providing opportunities for public notice and comment on proposed listing rules.”
NOAA officials “indicated that work resulting from deadline suits did not have a significant effect on the implementation of their program,” GAO found, noting, however, the Interior Department “has delayed completing some actions to complete those included in settlement agreements.”
Bishop, who chairs the House Committee on Natural Resources, is holding a hearing Tuesday on the ESA’s impact on development. It’s likely the first step in the House towards ESA reform the GOP has been demanding for years.
The Senate Committee on Environment and Public Works held a similar hearing in February to find ways to “modernize” the ESA. Republicans are likely confident they can get some sort of ESA reform done with President Donald Trump in office.
Former President Richard Nixon signed the ESA into law in 1973 at a time when more Americans were becoming concerned about environmental protection. Since then, about 2,270 animal species have been listed as threatened or endangered under the ESA.
Environmentalists say the ESA has saved hundreds of species from extinction, but listing so many species means more costly delays to economic development.
Federal officials have to approve projects that could have any impact on endangered species or their habitat.
In 2013, for example, $459 million worth of road projects were delayed because a single endangered Indiana Bat flew from its cave in eastern Tennessee through Georgia. Federal officials said the bat’s migration confirmed their suspicions the animals summered in Georgia.
State transportation officials had to delay projects and then spend an estimated $8 million on a study to make sure they won’t “harm, kill or harass” any more bats should they appear, the Atlanta Journal Constitution reported.
In 2016, the U.S Army Corps of Engineers halted a $48 million road project in Florida to protect a 3-inch-long fish, the Okaloosa Darter. The Corps stopped the project to see if the Florida project spilled dirt into nearby creeks where darters live.
More recently, a federal court sided against Louisiana landowners, ruling the federal government could create a “critical habitat” on 1,500 acres of private property for an endangered frog that hasn’t lived on those lands for decades.
The Pacific Legal Foundation (PLF) represented those landowners. PLF attorney Jonathan Wood will testify at Bishop’s hearing Tuesday.
Wood will argue ESA-mandated consultation with federal agencies “takes more time than Congress intended,” according to prepared remarks obtained by TheDCNF.
“When necessary infrastructure maintenance and upgrades are put-off because of these delays and costs, that can significantly harm species and the environment,” reads Wood’s prepared remarks. “The damage from infrastructure crumbling and failing can be far higher than the modest impacts of repairs and upgrades.”
Environmentalists disagree. Ya-Wei Li, a top official with the Defenders of Wildlife, will argue “there is no compelling evidence that these conservation gains have come at the expense of jobs or the economy at the national level,” according to prepared testimony.
“With rare exceptions, federal agencies have completed consultations in a reasonable timeframe by adopting conservation measures that are economically and technologically feasible to implement,” Li will argue.
Li’s argument is based on a Defenders of Wildlife Study that found “no project was stopped because of [Interior] concluding that a project would ‘jeopardize’ a species or ‘destroy or adversely modify’ critical habitat.”
The study also found “the median duration of informal consultations was 13 days and formal consultations was 62 days,” according to Li, which is far less than the 135 allowed by law. That study did find, however, 20 percent of ESA consultations took longer than 135 days.
Wood counters that study in his testimony. He argues “another way to interpret the results is that, during the first seven years of the Obama administration, nearly 100,000 projects had to undergo time-consuming and expensive consultation even though none of them would likely jeopardize a listed species or its habitat.”
“Making matters worse, nearly 1,300 major projects were delayed for more time than the law permits, even though they too would not likely jeopardize a species or its habitat,” Wood will say.
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