The Center for Biological Diversity’s (CBD) petition to list 404 southeast aquatic species under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA) (the Southeast Mega- Petition) promises to increase pressure on the competing demands on our water resources, wetlands and riparian habitats. CBD and Wild Earth Guardians (WEG) petitions will require the United States Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration-Fisheries (NOAA) to assess, and possibly list, over 700 species as threatened or endangered and entitled to enhanced legal protections in the next several years.
The alleged causes for species or sub-species decline in the Southeast Mega-Petition are identified as development, roads, logging, agriculture, recreation, mining, overutilization and exploitation, disease and predation, invasive species, dams, and hydropower generation.
Implications of Listing
Among environmental practitioners, the ESA is well known as one of the most potent of environmental laws. ESA issues are at the forefront of the well-publicized interstate water disputes between Georgia, Florida, and Alabama (involving the purple bankclimber, gulf sturgeon, fat three-ridge mussel). The habitat conservation plan for the fairly recently listed Etowah darter, never finalized, proposed to expand Georgia’s buffers and restrict use and development. Lessons from the western United States indicate that authorization for roads, bridges, docks, water intakes and piping, sewer, rail, and other infrastructure would be affected and delayed or precluded due to ESA consultation, determination regarding potential for jeopardy to the species, and reasonable and prudent measures via biological opinion developed by USFWS and NOAA. At the core of ESA protections are the broad prohibition of ‘take’ of species or their habitats (Section 9), consultation and conditioning of permits and authorizations with ‘reasonable and prudent measures’ (Section 7), and the prospect of citizen suit, civil, and criminal penalties (Section 11).
Congressional Concern Regarding “Sue and Settle” and the ESA
Some in Congress have raised concerns that the citizen petition provisions in the ESA such as that used in the Southeast Mega-Petition have resulted in a ‘cottage industry for filing lawsuits,’1 that attorneys’ fees provisions have been abused and promote litigation,2 and that the approach overall impedes true species recovery while wreaking havoc on USFWS resources and economic and social interests.3 The Government Accounting Office determined that attorneys’ fees and costs paid by the Department of Interior from the United States Judgment Fund for ESA cases was $ 21,298,971 from March 2001 to September 2010. By comparison, the entire listing budget for USFWS for FY2013 is $ 22,431,000, just above the attorneys’ fees amount.4
Currently, based upon citizen petitions, USFWS and NOAA are scheduled to make listing determinations regarding more than 750 species, a large portion of which occur in the southeastern United States.5 USFWS estimates that, based upon Section 4 petitions for listing, USFWS listing decisions would dramatically increase and exceed the totality of decisions for the first 20 years of the ESA. The majority of these petitions have been filed by CBD, which has petitioned for listing of over 750 species. See CBD Statement, Hastings Relies on False Information in Attacks on Endangered Species Cases (June 27, 2012). Wild Earth Guardians, another environmental group active in ESA listing petitions, recently settled with USFWS regarding determinations for over 600 species. In re Endangered Species Act Section 4 Deadline Litigation, Settlement Agreement, MDL Docket No. 2165 1:10-mc-00377-EGS (May 10, 2011).
In light of the sheer number of species, there is concern that listing decisions present a significant possibility that determination regarding some species will be based upon incomplete or little scientific information. USFWS has indicated that the number of petitioned species far exceeds USFWS resources and the reasonable workload.
The southeastern United States, with its wealth of aquatic resources and species diversity, has generally avoided much of the dispute and limitations on development faced in other parts of the United States under ESA provisions. The filing of the Southeast Mega-Petition and its proposed 404 species marks a significant change in the ESA landscape in this region.
One little used alternative to listing that has seen success in Georgia is the Candidate Conservation Agreement with Assurances (CCAA). CCAA’s can be used where a species may be a candidate for listing but is not yet listed. CCAA’s are agreements with private or governmental entities to conserve and address threats to candidate species and their habitat. In exchange for agreeing to measures to protect the species, participants in the CCAA obtain the “assurance” that if the species is listed in the future, the parties will not require actions in addition to those provided in the CCAA agreement. USFWS and Georgia Power entered into a CCAA for the robust redhorse in 2002, and subsequently a robust redhorse conservation committee has been established to monitor progress under the CCAA and in other parts of the state where robust redhorse was subsequently found. See http://robustredhorse.com/. As of November 2011, there were 23 CCAAs in 16 states covering more than 1 million acres and involving 40 species. Three of the CCAAs are for property located in southeastern states (Kentucky,Arkansas, and Georgia).
1 Hearing on Implementation of the Endangered Species Act in the Southwest, Committee on Natural Resources. 105th Congress, 2d Session (July 15, 1998)(http://gpo.gov/fdsys/pkg/CHRG-105hhrg50135/html/CHRG-105hhrg50135.htm).
2 “Taxpayer Funded Litigation: Benefitting Lawyers and Harming Species, Jobs and Schools,” House Natural Resources Committee, June 19, 2012. According to Chairman Hastings, one environmental group, the Center for Biological Diversity, has received $2,286,686.91 in attorneys’ fees and court costs from 2009 to 2012. CBD disputes the figures and states that it has received just over $ 500,000 in fees during this period.
3 “The Endangered Species Act: How Litigation is Costing Jobs and Impeding True Recovery Efforts,” House Natural Resources Committee, December 6, 2011.
4 Keith W. Rizzardi, ESABlawg, “Is $21 million in attorney’s fees the best way to spend conservation dollars?” http://esablawg.com/ (last accessed March 26, 2013).
5 For the current ESA listing workplan, see https://fws.gov/endangered/improving_ESA/listing_workplan_FY13-18.html.
Originally Published in Perspectives on Georgia’s Environment, A Publication of the Environmental Law Section of the State Bar of Georgia, Spring 2014