House Natural Resources Committee To Hold Hearing On Endangered Species Act

House Natural Resources Committee Chairman Doc Hastings, concerned that the Endangered Species Act is wasting more money on lawsuits than recovering species, has scheduled a full committee hearing on the act for next week.

The hearing, set for next Tuesday, is titled, The Endangered Species Act: How Litigation is Costing Jobs and Impeding True Recovery Efforts.

“This hearing is the first of many that the Natural Resources Committee will hold to examine both the strengths and weaknesses of the Endangered Species Act. It has been over two decades since the ESA was last reauthorized and it’s the responsibility of Congress to undertake a thoughtful analysis of the law to see what improvements could be made to ensure that it works for both species and people,” Rep. Hastings said in a release.

“The goal of the ESA is to conserve key domestic species, yet it’s being used by special interest groups to file lawsuits and drain resources away from real recovery efforts. This hearing will specifically look at the impacts of ESA litigation on jobs, our economy and species recovery.”

Both Mr. Hastings and Rep. Rob Bishop, a Republican from Utah who chairs the House Subcommittee on National Parks, Forests and Public Lands, have exhibited some disdain for the ESA and other environmental legislation.

The two have co-sponsored H.R. 1505, which would waive for the U.S. Border Patrol a wide-ranging number of laws and regulations -- the ESA, National Environmental Policy Act, federal Water Pollution Control Act, the Clean Air Act, the Wilderness Act, the Federal Land Management Policy Act, the Wild and Scenic Rivers Act, the National Park Service Organic Act, the Coastal Zone Management Act, and the Migratory Bird Act, and a host of other environmental acts.

Tuesday's hearing is set to begin at 10 a.m. EST in Room 1324 of the Longworth House Office Building.


The way the EPA and the ESA have been implimented it should not be a surprise that there is a growing number of Hastings and Bishops (and their supporters) out there to counter. Hope they land somewhere reasonable that serves the whole picture of present realities. That would be real achievement in my eyes.

The irony of it all. It's because of laws and agencies like this (ESA and EPA) that these people have something to take for granted. Sad...

Despite the consensus that the ESA is pretty messed up, the Republicans are so zealous and extreme in their opposition that they will make reforms impossible. It's like the debt crisis--we are guaranteeing the status quo by refusing to consider changes we can all agree on.

There is no "consensus" that the "ESA is pretty messed up." What there is is a concerted campaign to give that impression and to demonize ESA litigation and the environmental organizations which insist that the ESA be properly implemented by government bureaucrats.
Here are some of the allegations made by Karen Budd-Falen who will testify at tomorrow's hearing. Ms. Budd-Falen is the main spokesperson for the campaign to demonize the ESA and those who insist that it be properly implemented:

When Budd-Falen’s “research” is closely scrutinized it turns out that it is riddled with misstatements, errors and omissions. Here are a few examples:

Example #1:

In her initial attack memo dated September 15, 2009 Budd-Falen claims that the federal government has paid “billions” in attorneys’ fees “for Endangered Species Act cases, Clean Water Act cases, and … other statutes that directly allow a plaintiff to recover attorney fees.” “In total, $4,716,264,730.00…were (sic) paid in taxpayer dollars from the Judgment Fund from 2003 through July 2007.”

Fact: The figure for the FY 2006-2010 period is roughly $6 billion, but the mention of the environmental statutes is fundamentally dishonest because fees awarded from the Judgment Fund under the “other statutes” vastly outweigh those awarded under all environmental statutes. Only a tiny fraction of all Judgment Fund payments (likely less than 1% based on Budd-Falen’s own figures) have gone to environmental groups. Environmental groups sue the federal government a lot less often as compared to industry groups.

Example #2:

In her October 22, 2009 Memo “Western Legacy Alliance Research” Budd-Falen claims that “A ‘for-profit’ business with a net worth over $7,000,000 is not eligible for an award of attorneys’ fees from the federal government. A non-profit organization, regardless of its net worth, is eligible for attorney’s fees.”

Fact: Both statements are false. A for-profit business is as eligible as any non-profit organization under most citizen suit attorney fee provisions, including the ESA and Clean Water Act. B-F is probably referring to eligibility for fees under EAJA, which provides that unincorporated businesses, partnerships, corporations, associations, units of government, or organizations with a net worth over $7 million are ineligible, with the exception of 501(c)(3) nonprofits and cooperative associations like farm producer cooperatives. 501(c)(4) nonprofits, notably including the Sierra Club, are ineligible for EAJA fees.

The broader implication that only environmental organizations are eligible for attorney fees is also false. As we have noted above, for example, $304,530 in attorney fees under the ESA went to water agency plaintiffs in Association of California Water Agencies v. Evans, 386 F.3d 879 (9th Circuit 2004). This is not an isolated example; industry groups regularly file ESA lawsuits and when they win they invariably seek award of the costs of litigation, including attorneys’ fees.

Example #3:

In her October 22, 2009 Memo Budd-Falen claims that: “In addition to collecting money from the federal government, the Clean Air Act and the Clean Water Act allow environmental groups to sue, and if they win, to collect attorney fees from private business for Clean Water Act or Clean Air Act violations, in addition to any fines, penalties or mitigation imposed against the business by the federal government.”

Fact: This is false and misleading – the citizen suit provision of the Clean Water Act provides that fees and costs may be awarded to any prevailing or substantially prevailing party (33 U.S.C. § 1365(d)). Citizen suits are not limited to “environmental groups” but can be brought by any person or persons having an interest that may be adversely affected ( 33 U.S.C. § 1365(a) and (g)). Similarly, attorney fees may be awarded under the Clean Air Act to “any party, whenever the court determines such award is appropriate” (42 U.S.C. § 7604(d)). Moreover, the Clean Water Act provides that no suit may be commenced if the EPA Administrator or a state with delegated authority is “diligently prosecuting a civil or criminal action … to require compliance with the standard, limitation, or order…” (33 U.S.C. § 1365(b)(1)(B)). The Clean Air Act contains a similar provision (42 U.S.C. § 7604(b)(1)(B)). Budd-Falen is wrong when she claims that anyone can get attorney fees from a private business on top of fines, penalties, or mitigation imposed by the government. Citizen lawsuits are not allowed when the federal government is already enforcing the law.

Example #4:

In her December 23, 2009 memo titled “Attorneys Fees Tax Dollars Have Already Decided U.S. is Globally Warming” Budd-Falen claims that NRDC and the other prevailing plaintiffs in the challenge to the Delta smelt Biological Opinion are involved in negotiations for fees that are “outside of any public process or review and will unlikely be ratified by the federal court. The amount of money requested by the environmental groups and the hourly fees charged by Earthjustice Legal Foundation and Natural Resources Defense Council attorneys will never be revealed to the public. In one of these cases, the federal government simply decided not to fight the merits of the case and the environmental groups will still be paid for suing the government.”

Fact: Budd-Falen is wrong that the negotiated fee settlement “will unlikely be ratified by the federal court.” In that case, the court issued a public document ratifying the fee settlement. It is also false that the amounts requested and the hourly fees charged “will never be revealed to the public.” Documents submitted to federal defendants are subject to FOIA even if marked confidential. Furthermore, the closed-door nature of fee negotiations does not seem to have bothered Budd-Falen when she engaged in closed-door fee negotiations in New Mexico Cattle Growers case.

Example #5:

In her February 17, 2010 memo titled “$42 Million Borrowed Tax Dollars” Budd-Falen claim that “with regard to the ESA, this litigation does not challenge whether a plant, insect or animal is, in reality, declining in numbers and needs human intervention to survive.” Instead Budd-Falen claims that the vast majority of ESA cases are purely procedural, i.e. that they challenge missed deadlines.

Fact: This assertion is false. The vast majority of cases filed by the environmental groups Budd-Falen attacks seek substantive protection from real and immanent harm which threatens a species’ existence. There is, however, no doubt that environmental organizations have and will in the future file lawsuits to force federal agencies to observe deadlines imposed by Congress. Agencies should not be allowed to indefinitely postpone decisions especially when those decisions involve the welfare of veterans, elders, the disabled or species threatened with extinction. Deadlines without accountability are meaningless. Federal agencies should be made to honor deadlines imposed by Congress. That’s just basic good government.

Example #6:

In her May 26, 2010 Memo “It’s Not About Saving Species – It’s About Spending Taxpayer Money and Making Some Groups Wealthy” Budd-Falen claims that “in California, Brightsource Energy will have to spend $20 million dollars to relocate 20 tortoises plus create a permanent tortoise trust fund so it can build its solar power plant. That is 1 million dollars plus per tortoise.”

Fact: The $20 million dollars is the cost of the total mitigation package, including off-site land acquisition and a trust fund, not just tortoise relocation. Far more than 20 tortoises are the intended beneficiaries of this mitigation and more than 20 tortoises are currently on the site. The claim of “$1 million dollars per tortoise” is false.

Example #7:

In her September 7, 2010 Memo “Getting Paid To Go Away - and the Taxpayer and Consumer Get to Pay Again” Budd-Falen claims that “the Center for Biological Diversity extorted almost $1 million from Alameda County, California to drop its protests to a City’s approval of a residential and commercial development project.”

Fact: Alameda County paid nothing to the Center. Later Ms. Budd-Falen acknowledges that this amount was for “habitat acquisition,” but states that “this is just more American taxpayer money going to radical environmental groups.” This money did not go to the Center; it went for substantive habitat protection and improvement. Budd-Falen’s claim is false. Moreover, her acknowledgment that the funds were used for habitat acquisition directly contradicts her claim that “it’s not about saving species.”

These are just a few of the misstatements, errors and omissions that riddle Ms. Budd-Falen’s “research” and the series of memos which she has issued over the past two years attacking environmental litigation.

Budd-Falen and her crowd don’t want federal laws which protect the environment to be enforced. Since they don’t have the votes to repeal those laws, they are making an end run. They want to hamstring citizen organizations and citizens themselves who are willing to go to court to force government bureaucrats to obey environmental laws.

Please don't be fooled, the ESA is among the most effective environmental laws on the books - that's why those who don't want specises and theri habitats protected spend so much time attacking it.


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