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Back to Session 8: Protecting Natural Resources:

Endangered Species Act Part II

Controversies

While there are many controversial issues associated with the ESA, we will focus upon two: (1) Fire Plan Protection and (2) Property Rights.

Special Rules for National Fire Plan Consultation
"In December, 2003, several federal agencies jointly enacted regulations designed to streamline the consultation process on proposed projects that support the National Fire Plan. This alternative consultation process eliminates the need to conduct informal consultation with USFWS and NMFS for National Fire Plan projects. Under the new process, the USFWS or NMFS will develop an Alternative Consultation Agreement (ACA) with action agencies (Forest Service, Bureau of Indian Affairs, Bureau of Land Management and National Park Service). With an agreement in place, USFWS or NMFS will train the agencies to make independent determinations of whether their fire plan projects are likely to adversely affect protected species. Projects might include prescribed fire, thinning and removal of fuels, emergency stabilization, burned area rehabilitation, road maintenance and ecosystem restoration. This process is designed to accelerate the rate at which the agencies process fire projects without changing the actual standards for Section 7 consultations.

Alternative Conservation Agreements must include:

• Who will make determinations;

• Procedures for training to make determinations;

• Standards for assessing the effects of a project;

• Provisions for incorporating new information, species, or critical habitat into the analysis;

• Monitoring and periodic program evaluation; and

• Provisions for the action agency to maintain a list of Fire Plan Projects for which it has made determinations.

Critics of this exception contend that the ESA requires at least informal consultation and do not believe that the land management agencies will have the expertise—despite the promise of training—to make the proper determinations alone. Even assuming the agencies have sufficient expertise, critics fear that the conflicting missions of the agencies will lead to decisions less protective of species and their critical habitats. A coalition of environmental groups is challenging the new regulations in court. For a copy of the new regulation and the agencies' justification of it, see Joint Counterpart Endangered Species Act Section 7 Consultation Regulations in the Federal Register. For a copy of the ACA, see the USFWS web page on consultation. For other USFWS recommendations for streamlining Section 7 consultation, see the agency's memorandum on Alternative Approaches to Section 7."

 

Property Rights and the ESA

 

The history of the ESA as it relates to property rights has been summarized by the Congressional Research Service in the following fashion:

"Though Congress first adopted endangered-species legislation in 1966, the property-rights issue did not emerge until 1973 when it enacted the ESA. The ESA considerably broadened federal management authority over endangered and threatened species, including those on private land.

 

Under the modern act, the possibility of property-rights conflicts begins when the Secretary of the Interior, through the Fish and Wildlife Service (FWS), formally lists a species as endangered or threatened. (The Secretary of Commerce, through the National Marine Fisheries Service (NMFS), administers the act for marine species.) Any species or subspecies of fish, wildlife, or plants may be listed, and separate populations of vertebrate species as well. Significant here, listing is to be done "solely on the basis of the best scientific and commercial data" -- i.e., without reference to property rights impacts.

 

Along with the listing determination, the appropriate Secretary is required when possible to designate the "critical habitat" of the species -- areas essential to the conservation of the species that may require special management or protection. In sharp contrast with listings, a critical habitat designation is to be based both on scientific data and "economic impact and any other relevant impact"  -- presumably allowing impacts on property rights to be weighed. Indeed, the Secretary may even exclude an area from critical habitat if the benefits of exclusion outweigh those of inclusion (unless exclusion for this reason will cause species extinction). This ESA distinction between listing and habitat designation, allowing property-impacts analysis only with the latter, was made by Congress quite deliberately.

 

Of course, species listing and habitat designation by themselves occasion no direct interference with private property. Rather, it is the ESA provisions triggered by these events that may do so.

 

One such provision, section 9, lays out prohibited acts in connection with endangered animals and plants. Section 9's prohibitions apply to private as well as public property, and apply regardless of whether critical habitat is involved. For endangered animals, prohibited acts include (a) the "taking" of any such species, (b) possessing, selling, or transporting any such animal obtained by unlawful "take," (c) transporting an animal interstate in the course of commercial activity, and (d) selling an animal interstate, or importing/exporting same. For endangered plants, the list is narrower, deleting the general "taking" prohibition. The term "take," a key ESA concept not to be confused with fifth-amendment takings, is generously defined to include almost any act adversely affecting a species -- including "to harass, harm, pursue, hunt, ... capture, or collect" a listed animal. Exceptions from section-9 prohibitions, aimed at accommodation of economic pressures, may be authorized chiefly for "takings" incidental to otherwise lawful activities, and undue economic hardship due to contracts made prior to federal consideration of a species as possibly endangered.

 

By general rule, the FWS has extended almost all the above prohibitions to threatened animals and plants as well. "Special rules" have been promulgated for those threatened species having atypical management needs, and for "experimental populations."

 

The other ESA provision with property-rights implications, section 7, sets out federal agency obligations.  Its sweeping mandate is that each federal agency "insure" that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species," or harm designated critical habitat. The only exemption to accommodate development is by action of the Endangered Species Committee (popularly dubbed the "God Squad"), a time-consuming and easily politicized process used to completion only three times since it was established in 1977.

 

Stepping back, one can readily see that the ESA is neither absolutist in the protections afforded covered species, nor at the other extreme sensitive to every property impact of those protections. For example, the "incidental take" exception was added to the ESA in 1982 precisely to soften the private-property impacts of the act -- yet, on the other hand, its availability is far from universal. By definition, the "taking" can be excused only if it is incidental to, and not the purpose of, the landowner's proposed activity, and an incidental-"take" permit may be issued only when the landowner has submitted a "habitat conservation plan," an expensive proposition for some small landowners. This and other private-property escape valves in the ESA are discussed in more detail below.

According to an analysis in 1993 by the Congressional Research Service, there are three principal property-related impacts that may ensue from the ESA:

"The first type of possible impact occurs when the ESA directly bars an activity on private land because it might adversely affect an endangered or threatened species. ESA section 9 bans the "taking" of a listed species, a term that includes significant habitat modification -- even on private land. On the other hand, the act seeks to accommodate economic pressure by allowing "takes" of listed species that are merely incidental to a proposed activity. ESA section 7 orders federal agencies to insure that their actions, including permitting, are unlikely to jeopardize the continued existence of a listed species. Like section 9, section 7 allows incidental "takes," and can be bypassed entirely by action of an Endangered Species Committee. While the possibility of direct land-use prohibitions under the ESA sparks most of the congressional debate, there appears to be not a single constitutional taking decision from the courts based on such restrictions.

 

The second type of theoretical impact occurs when the ESA limits one's ability to protect property from the depredations of listed species. ESA section 9 contains no defense for protection of private property, though importantly, "special rules" allow government agents to deal with nuisance animals. One ESA case has been decided in this category, finding no constitutional taking, and most non-ESA depredation cases have yielded the same result. Instances where the protected species exists on private land through government relocation, however, may offer better prospects for the taking plaintiff.

 

The third type of possible impact occurs when the ESA limits commercial dealings in members of species that were acquired before the species was listed. ESA section 9 contains the pertinent language. Supreme Court taking decisions suggest that constitutional relief in these circumstances is particularly unlikely. A key reason why courts are not finding constitutional takings is because until now they have deemed the restrictions in wildlife statutes to be land-use controls, rather than to effect permanent physical occupations by the protected animals. The former type of government interference with property is more rarely held to be a taking than the latter. For this and other reasons (but stressing the difficulty of prediction in this area), it seems that few ESA impacts on private property are likely to be constitutionally compensable."

In recent years, some of the most significant critiques of the ESA have come from a group that is very intimately associated with its inner-workings: The National Governors Association. In 2004, this group provided the following critique of the limitations of the act and proffered a set of recommendations.

"Reviewing the record of the last thirty years, the Governors make the following observations.

• ESA is "crisis-driven." The act needs a system of incentives to encourage state and local governments to develop comprehensive land-use and development plans that balance habitat preservation and environmental concerns with necessary development and economic growth. The act also needs to focus more clearly on the protection of multiple species and the habitats upon which they depend. ESA should encourage private landowners to engage in habitat conservation activities. It must identify and prevent problems before they become critical and more difficult to manage.

• Funding for ESA should be enhanced to address the growing list of threatened and endangered species. Significant funding needs to escalate rapidly, as state and federal agencies increasingly assume ESA management activities and embrace ecosystem management strategies as means to protect species and their habitats.

• ESA needs a clear methodology for delisting recovered species. Even when actual recovery has occurred, species frequently are not delisted. This failure to acknowledge success aggravates public frustrations generated by the cost and inflexible processes of ESA.

• ESA would benefit from providing more meaningful opportunities for states to comment, participate, or take the lead before the federal government makes any number of decisions--ranging from listing through delisting--under ESA. Such consultation is largely optional under the current scheme and has been provided erratically. The role of states also has been limited by rigid internal federal processes, interagency jurisdictional disputes, and interpretations of the provisions of the Federal Advisory Committee Act (FACA). This scenario has prevented the sharing of scientific information and the consideration of state-based information.

Together, all of these factors would help rebuild public support and enthusiasm for the maintenance of biological diversity and the protection of species and habitats. Public support is essential to successful accomplishment of the goals of the act as established by Congress.

 

Recommendations

The National Governors Association calls for the reauthorization and amendment of the Endangered Species Act of 1973 based on three goals: to increase the role of states, to streamline the act, and to increase certainty and technical assistance for landowners and water users. These goals should be achieved while maintaining the act's integrity and original intent to conserve listed species. Implementation of the following recommendations will improve the effectiveness of the act by making it more workable and understandable.

 

Multispecies Planning. Increasingly, state and federal agencies and private conservation organizations have recognized the limitations of the "single-species approach" to conservation and have taken commendable steps to utilize Section 4(d) rules and habitat conservation plans to move toward multispecies planning. The act should authorize the recovery and protection of species in clusters or related groups, where appropriate. It should continue to give priority to the conservation of the species and habitats that, if protected, are most likely to reduce the need to list other species dependent on the same ecosystem.

There is wide agreement that the value of habitat-based planning lies not only in its benefit to species and ecosystems, but also in its promise of long-term certainty with respect to land use both within and outside of designated critical habitats. A planning process for multiple species should include incentives such as authorization for short-form, cost-effective habitat conservation plans under Section 10; "no surprise" policies; safe-harbor policies; small landowner and small impact exemptions; and other initiatives that provide certainty and encourage voluntary efforts by landowners.

 

State Delegation and Increased State Role. The act should affirm and be carried out in a manner that recognizes the broad trustee and police powers that states possess over fish and wildlife within their borders, including those found on federal lands, and the concurrent jurisdiction for listed species that the states and the U.S. Secretary of Interior share. The act can be effectively implemented only through a full partnership between the states and the federal government.

 

One way to accomplish this partnership is through the delegation of authority for the development of conservation and recovery plans by states that accept that delegation and agree with the secretary to perform in accordance with specified standards. A federal-state collaborative rulemaking process should be established to determine the standards and guidelines for state participation in or assumption of authority for decisions under the act, while recognizing that the secretary retains final decisionmaking authority. Such delegation should be accompanied by grants to cover additional administrative costs. If a state chooses not to lead an activity, it should remain a full partner in administering the federal program to ensure that its authorities, on-the-ground expertise, and working relationships with local governments and holders of real property rights are utilized and that duplication is minimized.

 

Public Participation. To increase cooperation, the law must enable stakeholders to participate directly in the important decisions of ESA management. Currently, public comments are only required to be solicited for the development of recovery plans. During both the listing process and the drafting of recovery plans, public hearings and the solicitation of comments should be required and significant comments should be addressed.

 

In addition, current law allows judicial review only for the denial of a listing petition, not for the acceptance. To ensure fair and equal access to the legal system, judicial review must be granted for both the denial or the acceptance of petitions.

 

As an alternative to judicial review, ESA should incorporate alternative dispute resolution mechanisms or mediation activities as means to resolve disputes and ensure the best application of scientific information in listing decisions.

 

Enhanced Science. Given the broad implications that may arise when ESA actions are taken, decisions must be based on good science. Peer review of listing decisions by acknowledged independent experts and/or state wildlife experts is important to ensure the public that decisions are well-reasoned and scientifically based.

 

Peer review committees should be agreed upon by both the U.S. Fish and Wildlife Service and the state. State agencies also have expertise and other institutional resources, such as mapping capabilities, biological inventories, and other important data, that should be employed in developing endangered species listing and recovery decisions. FACA is an obstacle that prevents the free flow of information between states and federal agencies with wildlife management responsibilities. As concurrent regulators, state government agencies must be exempt from FACA restrictions.

 

Recovery Goals. The act should have as its central focus the recovery of species. Every effort should be made to complete a recovery plan within one year of a species being listed, and federal agencies should publish recovery goals in conjunction with the listing decision based on the best available science at the time of listing. Designation of critical habitat should be discretionary if the secretary determines it is either undeterminable or is not necessary for the protection of the listed species. If critical habitat is designated, the act should provide for such designation during the development of recovery plans. An administrative process to downlist and delist species should be automatically triggered when the quantitative goals and targets of a recovery plan are met. The secretary should be given the flexibility to allow, to the maximum extent practicable, species to be delisted or downlisted, along state geographic boundaries, when they have reached their recovery goals within a state, regional, national, or multistate recovery program that has been developed consistent with the purposes of the act.

 

Recovery plans should provide expedited Section 7 consultation procedures and inexpensive short-form, model habitat conservation plans as incentives for participation, as well as special relief for small landowner and small impact activities. Direct stakeholder responsibility and participation in developing the implementation plans that carry out recovery plans and conservation agreements will reduce litigation and delay. These improvements not only benefit the species, but also benefit the affected locality. The public has a right to know whether it will be impacted with the implementation of ESA. For this reason, positive and negative economic impacts must be assessed and considered in order to minimize adverse impacts during the preparation of recovery plans.

 

Governors urge the federal government to ensure states and their state agency experts are included in the recovery teams that are charged with the development, implementation, and management of species recovery programs. State personnel bring management expertise, local proficiency, and working relationships with private landowners and local regulatory agencies that need be involved in the recovery program.

 

Congressional intent in the 1973 act to distinguish between endangered species and threatened species has been almost entirely eroded. Congress must reassert the distinction as originally intended. When a species is classified as threatened, regulatory restrictions appropriate to endangered species must give way to greater deference to states, greater program flexibility, and a broader range of permissible actions in developing a creative conservation program.

 

Funding. Inadequate funding remains an impediment to the success and the public's support of ESA. Without adequate funding, burdens are unfairly placed on local communities and owners of private property. The Governors call for the formation of a national task force composed of federal, state, and local representatives to identify creative and equitable funding strategies. Such a task force must have the stature to generate meaningful recommendations that will overcome the institutional inertia on ESA funding. Possible funding sources to enhance the effectiveness of the act include the Land and Water Conservation Fund, the original intent of which was to provide at least 50 percent of proceeds to state programs but which is now directed almost entirely to federal agencies, and the Transportation Enhancement Activities Program.

 

Incentives. Although a majority of endangered and threatened species are found on nonfederal land, there are few incentives for private landowners and state and local governments to undertake conservation measures before a crisis exists. The reauthorized act must provide incentives for state and local governments, private landowners, and private organizations to assist in species habitat and species conservation and with recovery efforts and habitat preservation. However, these incentives should not replace or supercede the need to fully fund existing ESA programs within the U.S. Department of Interior and the U.S. Department of Commerce.

 

The Governors recommend to Congress those incentives described in the Keystone Center's Keystone Dialogue on Incentives to Protect Endangered Species on Private Land (July 1995). The Governors also endorse efforts to expand nonregulatory, incentive-based, and commercial conservation efforts.

 

In addition, states should be authorized to initiate conservation agreements with federal, tribal, and local agencies and private landowners to conserve declining species before the need to list those species. In cooperation with the states, the secretary should determine the standards and guidelines for these conservation agreements. These agreements should include landowner certainty provisions and incentives to encourage the involvement of federal agencies as well as private landowners and other nonfederal parties in this preventive effort."

Utilitarian Calculations of Value of Endangered Species

While the utilitarian perspective and calculation of value usually revolve around what is good for human beings, there is arguably a broader perspective relating to utilitarianism that could be taken. According to Harry Wilson in "Finding and Ethical Basis for Section 7 of the Endangered Species Act,"

"To use a utilitarian system one must be reasonably sure of the consequences of any action. That means that nearly comprehensive scientific and economic data must be available. As one may well imagine, that is rarely the case. Consequently, utilitarianism is often used today in a reckless fashion. Decisions are made today with only a very short examination of the potential results. This bodes ill for environmental and bio-diversity concerns, since quantifiable anthropocentric impacts are difficult to assess and usually pose little short-term damage to human life." "..it is often hard to demonstrate the utility of seemingly insignificant species" .. "... especially when faced with the immediate concerns of humans living nearby. Utilitarianism is especially bad at justifying absolute prohibitions .. since to a utilitarian a case-by-case evaluation of the potential impacts of placing a species on the list would seem better suited to promoting the overall "good."

Wilson goes on to describe a broader approach to utilitarianism in which the intrinsic value of animals and species might be possible. Wilson goes back to the early utilitarianism of Bentham and Mill and suggests that their philosophy defined the "greatest happiness" as necessarily encompassing more than mere human happiness. This recognition was based upon their belief that animals, as well as humans, could experience evil and pain, and by logic, could also experience pleasure and happiness. When this understanding, however, is applied to "endangered species" then there is not difference in the "value" of endangered versus non-endangered species. In fact, utilitarianism does not assign any value to a "species" - period. Consequently, Wilson concludes, utilitarianism holds little promise for protecting endangered species.

Pressures and Responsibilities of the U.S. Fish and Wildlife Service

USFWS & USGS Perceptions of Challenges

According to the U.S. Fish and Wildlife Service and it's sister agency the U.S. Geological Survey significant challenges facing the agencies include:

Significant future impacts to biodiversity and ecosystem function emanating from:

• Invasive Species: The spread of invasive species is in part made possible via global trade and includes a "growing threat of invasive species to ecosystem function and native species conservation." These invasive species also effect the global economy by imposing both environmental and economic costs.

• Biotechnology: In terms of biotechnology, this constitutes a potential conservation tool, but in the case of genetic engineering, this tool can  "pose potential threats to ecological functioning that need to be assessed."

• Climate Change: Climate change concerns are primarily derived from the problem of "global warming" - a 2-4 degree increase in global temperature by the end of the 21st century.

• Water for Ecological Needs: Water resources are expected to be under significant stress due to population increases, industrial growth worldwide, as well as from overall changes in the use and allocation of water resources. As  illustrated below,  ecosystem water use will increasingly be "carved" out of urban, agricultural and thermal uses. Moreover, the USFWS and the USGS find themselves considering a transition from an old ecosystem water use planning paradigm to a new one (see second illustration below).

Consequently, these two agencies committed themselves to a set of actions to deal with each of the challenges identified above. These include:

"Results: Invasive Species:

• Be strategic: focus on species and habitats where USGS & FWS can make a difference. Increase use of FWS lands. 

• Emphasize research and management for detection, prevention and control efforts early in the invasion process. 

• Focus on understanding linkages between global change, biotechnology, and invasive species

Results: Biotechnology: 

• Planning for the use of biotechnology in conservation should proceed due to great potential benefits, but with deliberation and great care. 

• Information exchange and broader partnerships with academia and industry are essential for success. 

• Risk assessment procedures and the need for policy changes must be addressed very soon

Results: Climate Change: 

• Develop and implement specific monitoring strategies tailored to effects on wildlife and habitats. 

• Focus planning and management efforts at the ecosystem level. 

• Rethink the design of reserves and protected areas. 

• Climate Change complicates planning for the other three challenges.

Results: Water for Ecological Needs 

• Place greater emphasis on whole systems approaches. 

• Improved systems understanding will allow resource managers to prioritize areas and develop strategies for vulnerable systems. 

• Need for predictive models of potential systems effects under different land/water management regimes."

The USFWS is also challenged in its efforts to protect forest habitat for endangered and threatened species. They do so by working in conjunction with the U.S. Forest Service in planning for the "thinning" of forests to prevent forest fires. Indeed fire prevention is a major challenge for the work of the agency.

Other challenges include identifying and designating critical habitats, habitat protection through "cooperative conservation," and determining "critical habitat exclusions."

Report from The Union of Concerned Scientists

Unfortunately, USFWS and USGS also face political and funding pressures - especially in light of the costs of the Iraq War, homeland security, immigration reform and emergency aid for natural disasters such as in the case of hurricane Katrina. The Union of Concerned Scientists has been particularly vocal in their concern. They accuse the Bush administration of letting "politics trump science." Accordingly, they claim:

"Political intervention to alter scientific results has become pervasive within the U.S. Fish & Wildlife Service (USFWS), according to a survey of its scientists released today by the Union of Concerned Scientists (UCS) and Public Employees for Environmental Responsibility (PEER). As a result, endangered and threatened wildlife are not being protected as intended by the Endangered Species Act, scientists say.

The two organizations distributed a 42-question survey to more than 1,400 USFWS biologists, ecologists, botanists and other science professionals working in Ecological Services field offices across the country to obtain their perceptions of scientific integrity within the USFWS, as well as political interference, resources and morale.

• Nearly half of all respondents whose work is related to endangered species scientific findings (44 percent) reported that they "have been directed, for non-scientific reasons, to refrain from making jeopardy or other findings that are protective of species." One in five agency scientists revealed they have been instructed to compromise their scientific integrity-reporting that they have been "directed to inappropriately exclude or alter technical information from a USFWS scientific document;"

• More than half of all respondents (56 percent) reported cases where "commercial interests have inappropriately induced the reversal or withdrawal of scientific conclusions or decisions through political intervention;" and

• More than a third (42 percent) said they could not openly express "concerns about the biological needs of species and habitats without fear of retaliation" in public while nearly a third (30 percent) felt they could not do so even inside the confines of the agency. Almost a third (32 percent) felt they are not allowed to do their jobs as scientists.

In essays submitted on the topic of how to improve the integrity of scientific work at USFWS, one biologist wrote, "We are not allowed to be honest and forthright, we are expected to rubber stamp everything. I have 20 years of federal service in this and this is the worst it has ever been." By far, the most frequent concern raised by the scientists in the written responses was political interference.

"The survey results illustrate an alarming disregard for scientific facts among political appointees entrusted to protect threatened and endangered species," said UCS Washington Representative Lexi Shultz. "Employing scientists only to undermine their findings is at best a mismanagement of public resources and at worst a serious betrayal of the public trust."

A number of the essays spoke to the climate of fear within the agency. One biologist in Alaska wrote, "Recently, [Department of Interior] officials have forced changes in Service documents, and worse, they have forced upper-level managers to say things that are incorrect…It's one thing for the Department to dismiss our recommendations, it's quite another to be forced (under veiled threat of removal) to say something that is counter our best professional judgment." A manager wrote, "There is a culture of fear of retaliation in mid-level management. If the manager were to speak out for resources, they fear loss of jobs or funding for their programs." And a biologist from the Pacific region added that the only "hope [is] we get sued by an environmental or conservation organization."

"Political science, not biology, has become the dominant discipline in today's Fish & Wildlife Service," concluded PEER Program Director Rebecca Roose, who worked with current and former USFWS employees on survey design. "Like the trainer who hobbles a horse and then laments that it does not run fast, the politicians who complain about the lack of 'sound science' in the administration of the Endangered Species Act are often the very ones who intervene behind closed doors to manipulate scientific findings when they impede development projects."

Despite agency directives not to reply-even on their own time-nearly 30 percent of all the scientists returned surveys."

Bush Administration 2004 Budget Request for Department of Interior Programs

While the accuracy of the allegations of the Union of Concerned Scientists is difficult to assess, the priorities of the Bush Administration in regard to the USFWS are a matter of public record, such as in the case of this 2004 administration budget request to the U.S. Congress.

"Land and Water Conservation Fund

 

The cornerstone of our request is the Administration’s commitment to full funding of the Land and Water Conservation Fund. Our request includes $415.6 million for Service programs funded through the Land and Water Conservation Fund, a $79.6 million increase over 2004. This includes most of the Service portfolio of grant programs as well as the Secretary’s emphasis on conservation partnerships through a Cooperative Conservation Initiative in the Resource Management account.

 

In recognizing the importance of opportunities for conservation of threatened and endangered species through partnerships with private landowners, we are requesting $60.0 million for the Landowner Incentive and Private Stewardship programs, an increase of $23.0 million above the 2004 enacted level. In 2004 these programs will support innovative partnerships in 42 states and assist many individuals and groups engaged in local, private and voluntary conservation efforts that benefit federally listed, proposed, candidate or other at-risk species. The 2005 request will significantly build upon this success.

 

We request $90.0 million for the Cooperative Endangered Species Conservation Fund, $8.4 million above the 2004 enacted level. Additional resources for this program will increase our ability to provide funds to states and territories to implement recovery actions for listed species, implement conservation measures for candidate species, and perform research and monitoring critical to conservation of imperiled species. The proposed funding level would provide $50.0 million to support Habitat Conservation Plan Land Acquisition grants; $17.8 million for Recovery Land Acquisition grants to help implement approved species recovery plans; $10.9 million for traditional grants to states; and $8.8 million for HCP planning assistance to states.

 

Funding totals $80.0 million, including a $6.0 million tribal set-aside, for State and Tribal Wildlife Grants, an increase of $10.9 million over the FY 2004 enacted level. The bulk of this increase will support the completion of the required State Comprehensive Wildlife Plans.

 

The budget proposes $54.0 million for the North American Wetlands Conservation Fund, an increase of $16.5 million or 44 percent over the 2004 enacted level. These matching grants support wetlands and migratory bird conservation with private landowners, states, NGO’s, and other partners.

 

We request $45.0 million for high-priority acquisition of land and conservation easements from willing sellers. This is increase of $6.9 million above the 2004 enacted level. Priorities include $10.0 million for the Quinnault settlement, $2.6 million for the Baca Ranch, and $4.6 million in the Klamath Basin to enhance water quality and restore habitat.

 

The Cooperative Conservation Initiative includes our highly successful Partners for Fish and Wildlife Program, our Coastal Program, National Wildlife Refuge system challenge cost-share grants, and the Joint Ventures program. The budget provides $13.9 million in increased funding for these programs. We will discuss the components of the CCI in the testimony that follows.

 

Operations – Resource Management Account

 

Our main operations account is funded at $951.0 million in the request, a net decrease of $5.5 million below the 2004 enacted level. This reduction largely reflects decreases from one-time Congressional projects that were included in the 2004 enacted funding level. The budget includes $15.9 million in program increases which are discussed in my testimony and $8.1 million in fixed cost increases. The budget also includes savings from lower-priority program line items, and an overall reduction of $1.8 million tied to expected savings from improved vehicle fleet management. These savings have been redirected towards high priority initiatives in the request.

Science Excellence Initiative

 

An increase of $2.0 million will be used for the Science Excellence Initiative, to provide managers better access to the best available science and better ability to apply that science toward adaptive management. This initiative is the beginning of a renewed commitment to scientific excellence that will support the mission and employees of the U.S. Fish and Wildlife Service and the Secretary’s 4 C’s vision. This will be accomplished by expanding partnerships with organizations like the U.S. Geological Survey, universities, and professional societies; by applying scientific information to begin developing explicit population and habitat goals to better guide conservation efforts; and applying state-of-the-art tools and techniques, including models linking populations and habitats, spatial analysis, and more strategic survey and monitoring that supports adaptive management and research.

 

Endangered Species

 

The budget request includes a total of $279.4 million for endangered species programs, a $23.8 million increase. This includes $129.4 million for the operations program and $150 million for partnership grant programs. The budget includes an increase of $31.4 million for the grant programs that can help to achieve Endangered Species Act recovery goals in a partnership with states, Tribes, local jurisdictions and private citizens. In 2005, with the increase to the Cooperative Endangered Species Conservation Fund for example, the Fish and Wildlife Service will increase by 20 percent the number of partnerships and cooperative efforts to stabilize, improve and recover endangered species. The $129.4 million request for the endangered species operations program is a net reduction of $7.6 million below the 2004 enacted level. The program funding will support operations that enhance implementation of the Endangered Species Act. Within this total, the Service requests $17.2 million, a $5.1 million increase above the 2004 enacted level for Listing. Increased funding is required to meet resource protection goals and address the growing litigation-driven workload in the listing program.

 

Partners for Fish and Wildlife

 

To date, the Partners program has worked with 33,100 private landowners through voluntary partnerships to implement on-the-ground habitat restoration projects. We request $50.0 million, a net increase of $7.6 million, to accelerate this highly effective program for voluntary habitat restoration on private lands as part of the Secretary’s Cooperative Conservation Initiative. A requested general program increase of $5.0 million will allow the Partners Program to improve the health of watersheds and landscapes that are DOI managed and increase our capability to enter into meaningful partnerships resulting in on-the-ground habitat restoration. An increment of $1.0 million will be used to extend partnerships in combating tamarisk and associated noxious weeds, on federal and other lands in the Southwest.

 

In addition, we request increases of $5.0 million for the High Plains Partnership to conserve declining species and their habitats on private lands throughout 11 states; and $6.2 million for the Upper Klamath Basin Restoration Initiative to help forge a long-term solution to conflicts over water and land management to restore habitat, remove fish migration barriers, and improve the health of the Klamath basin to benefit farmers, tribes, and wildlife.

 

Coastal Program

 

As part of the Secretary’s Cooperative Conservation Initiative, we request $13.1 million for our Coastal Program, including a general program increase of $3.5 million to help protect and restore high priority coastal habitats. In addition to on-the-ground restoration, maps, habitat surveys, and grant application assistance will continue to help communities plan and implement projects that balance economic development and the coastal resources that make these communities desirable places to live and work.

 

Migratory Bird Management

 

Our 2005 request places a major emphasis on a core Service responsibility: conservation and management of Migratory Birds. To benefit migratory bird species, we request a net increase of $4.6 million for our Migratory Bird Conservation and Monitoring Program including an increase of $1.2 million for our Migratory Bird Joint Ventures Program.

 

Requested increases include $1.0 for Environmental Impact Studies, $250,000 for Webless Migratory Bird Conservation efforts, $655,000 for the Harvest Information Program, and $2.1 million for migratory bird surveys, monitoring and assessment activities.

Of note, a $700,000 increase will fund improvements to migratory bird permit processing along with a similar increase of $500,000 to modernize the International Affairs Service Permits Issuance and Tracking System, or SPITS.

 

The Service also requests a $1.2 million increase for the Migratory Bird Joint Venture program that will provide a total of $11.4 million for the program as part of the Secretary’s Cooperative Conservation Initiative. This increase is also tied to a $16.5 million increase in the North American Wetlands Conservation Fund. This successful program protects and restores critical habitats for diverse migratory bird species across all of North America, both on, and to a greater extent off, Service lands. The requested increase combined with the other dedicated funds is expected to be matched by at least $341 million of partner’s funds.

 

National Wildlife Refuge System

 

We request $387.7 million for National Wildlife Refuge System operations and maintenance. Although this is a net decrease of $3.8 million below the 2004 enacted level. It reflects the reduction of $5.0 million for a one time transfer from the National Park Service for monitoring in Loxahatchee National Wildlife Refuge.

 

An increase of $2.2 million – for a total of $12.0 million -- for the Challenge Cost Share program will meet expanded opportunities for natural resource restoration partnerships. This is a component of the Cooperative Conservation Initiative. With additional funding, refuges and partners will build on the current program and pursue results-oriented conservation projects consistent with the Cooperative Conservation Initiative criteria to promote citizen stewardship through cost-shared projects that restore or conserve natural resources. The National Wildlife Refuge System has developed additional initiatives that provide expanded opportunities for natural resource restoration partnerships. Recent projects leveraged more than $1.5 for every $1 in federal funding.

 

The National Wildlife Refuge System law enforcement program will continue compliance with the Secretary’s directive to implement law enforcement reforms and address issues identified by the International Association of Chiefs of Police and the Inspector General with an increase of $3.6 million. An additional 20 law enforcement officers will be hired, including $900,000 to hire seven additional law enforcement officers to be placed along our Southern border at San Diego NWR (CA), Buenos Aires NWR (AZ), and Cabeza Prieta NWR (AZ).

 

Last, the refuge program will use $1.0 million to develop strike teams to quickly respond to infestations of brown tree snake, tamarisk, leafy spurge, and yellow star thistle in Hawaii and the Pacific Islands and the Dakotas.

 

Fisheries

 

For the National Fish Hatchery System, we request $57.0 million. This includes an operations programmatic increase of $840,000 and a maintenance increase of $1.0 million. We will focus the additional operations funds in priority areas identified in the DOI Strategic Plan, the Fisheries Program’s “Vision for the Future,” the Administration’s PART Review, and more specific Regional step-down plans linked to DOI goals. The bulk of this increase will support resource protection goals by sustaining biological communities on DOI managed and influenced lands and waters.

 

We request $46.8 million, a net decrease of $9.5 million under the 2004 enacted level, for the Fish and Wildlife management assistance program. Of note, sea lamprey overhead costs are funded at $889,000, the 2004 enacted level, and the highest priority aspects of the Yukon River Salmon Treaty will be implemented with $3.0 million, slightly lower than the 2004 enacted level.

International Conservation

 

Along with the permits request discussed above, we request $9.5 million for the Multinational Species Conservation Fund. Within this fund, we propose to include $4.0 million funding for the Neotropical Migratory Bird Conservation Fund. The service request provides $1.5 million for the Rhinoceros and Tiger Conservation Fund, and $1.4 million each for the African Elephant Conservation Fund, the Asian Elephant Conservation Fund, and the Great Ape Conservation Fund.

General Operations

For general operations, we request $134.5 million, a net increase of $4.6 million above the 2004 enacted level for Central Office Operations, Regional Office Operations, Servicewide Administrative Support, National Fish and Wildlife Foundation, National Conservation Training Center, International Affairs, and the Science Excellence Initiative. Increases include funding for audit costs and the Enterprise Services Network and E-Gov projects."

Critique of Adequacy of Department of Interior Funding

However, there remains concerns regarding the extent to which the U.S. Department of the Interior (to which the USFWS reports) has sought adequate funding from Congress to carry forward the litigation required to enforce the ESA. For instance, here is a critique of the adequacy of funding that was made in 2000:

"The U.S. Fish & Wildlife Service and the National Marine Fisheries Service have lost over 100 lawsuits in the last decade challenging their failure to place imperiled species on the Endangered Species list. The Center for Biological Diversity, for example, has completed 54 listing cases since 1993 and has lost only one. With no legal justification for its delays, the Fish & Wildlife Service has increasingly turned away from legal to budgetary arguments. In virtually all court cases, and in the media, it pleads that Congress has not appropriated enough funds to carry out the legally mandated duties of the Endangered Species Act

 

IS CONGRESS REALLY TO BLAME? To the extent that Congress appropriates the budget and has been hostile toward endangered species protection, the argument appears convincing....to the media and public at least. The courts have repeatedly rejected budgetary argument. In a recent California case (Center for Biological Diversity v. Babbitt, CIV 99-03202 SC, 9/00), Judge Samuel Conti opined: "the solution of being over-obligated and under-funded rests with Congress, and not with the court." So the courts have ordered the USFWS to find the money elsewhere if the listing program line item is lacking.

 

Congressional appropriations begin with a formal budget request from the Department of Interior to Congress. The U.S.D.I. Inspector General concluded in 1990 that the Department of Interior needed $144 million to address the listing backlog. Yet the Department has never once asked Congress for anything near that level. The Clinton administration, for example, never asked for more than $8.2 million (see figure 1). Indeed it never asked for as much funding as the Bush administration did in 1992 ($10 million). Even worse, requests for funding of the listing program experienced a decline during the Clinton years. This was not a function of an overall decline in the Endangered Species Act budget. Overall budget requests grew on Clinton's watch from $77.9 to $123.3 million. Every Endangered Species Act budget item increased substantially except the listing program which decreased (see figure 1).

A SPENDING CAPS TO SUBVERT THE COURTS. That the Department of Interior would purposefully reduce its listing budget (by reducing its request to Congress) even as it faces a growing backlog of imperiled species, listing petitions, and court orders, is not the strangest of its budgetary actions. In every budget request from FY1998 through FY2001, the Secretary of the Interior has asked Congress to introduce a rider to the Interior Appropriations Bill, banning the use of any money from outside the listing budget to implement court orders or otherwise list species or designate critical habitat. It has done this because the courts have consistently refused to accept budgetary restraints as a valid reason for not protecting endangered species. With the legislative cap, the administration had hoped to tie the hands of the judiciary, such that obeying the Endangered Species Act would require violating the appropriations act.

 

Far from being hampered by Congress, the Department of Interior invented and lobbied Congress to include the spending cap rider. The House Report on the FY1998 Interior Appropriations Bill explains: "As requested by the Department of Interior, the [House] managers reluctantly have agreed to limit statutorily the funds for the endangered species listing program." This strategy, like other administrative assaults on the Endangered Species Act listing program, has been a hindrance, but has not stopped the federal courts or brought the listing rate down to the pre-1992 era. Its primary impact has been to cause enormous stress among its chronically understaffed, underfunded field offices.
 

FIGHTING COURT ORDERS FOR A BALANCED BUDGET. The Department of Interior's desire not to have a fully funded, or even close to adequately funded, listing program was revealed in a recent case involving four Hawaiian invertebrates (Center for Biological Diversity v. Babbitt). Judge Mollway rejected the agency's reliance on an inadequate Congressional appropriation:
 

"USFWS has not presented competent evidence demonstrating that it even applied for the funds to designate the Four Invertebrates' critical habitat or that it would have been unsuccessful had it done so...The court finds that...USFWS must at least request the funds necessary to designate the Four Invertebrates' critical habitats before USFWS can say that it is unreasonable for it to designated those critical habitats earlier than the fall of 2004."
 

Mollway, therefore, ordered the agency to do the obvious: request adequate funds from Congress to do its job in FY2001. If, despite decreasing it listing budget request between FY2000 and FY2001, the Department of Interior had any interest in obtaining more funds, this court order would have been the perfect vehicle to go back to Congress with. The federal court was essentially acting as an ally to help the Department justify increased funding. Instead, the Department opposed Mollway's order on technical legal grounds and eventually convinced her to rescind that portion of her order. Instead, she simply ordered the USFWS to designate critical habitat and let it worry about how to do it.

 

A PERFECT BUDGET TO JUSTIFY A MORATORIUM.

The USFWS has presented its 2001 listing moratorium as if it first had a budget, then got slapped with expensive court orders, and now has to grudgingly issue a moratorium because it has unexpectedly run out of money. The blame in this story is spread out between Congress, the courts and the environmentalists who brought the lawsuits. But the Department of Interior knew exactly how much money it would need to address the court orders and listing backlog before it went to Congress. The Department of Interior makes its budget request for the following year in March. Of the 300 species for which the USFWS is under court order to designate critical habitat, at least 265 were ordered or settled before March, 2000 (see table 1). The Department of Interior had these rulings in hand and knew what the vast majority of its work load would be before it presented its budget request to Congress. Nonetheless, it not only failed to ask for enough money. Indeed, it asked for $335,000 less than it asked for in FY2000.

 

The moratorium, therefore, is not a product of unexpected and unmanageable court orders. It is the product of a cynical decision by the Department of Interior to not request enough money to do the job at hand. Interior knew exactly what the consequences would be March 2000 when it submitted the grossly inadequate budget request. The issuance of the listing moratorium in November was caused by the March budget request, not court orders issued after March. In fact, very few critical habitat court orders were issued after March, 2000.
 

GAO Report on the Department of Interior

In 2003, GAO issued a report regarding the performance of the Department of Interior and made the  following observations:

"Overall, the Department of the Interior has made some or good progress in addressing three of the six key management challenges GAO identified in 2003. Despite this progress, the department continues to face challenges related to its ecosystem restoration efforts, deferred maintenance backlog, and financial management. Generally, for the other three key management challenges—Indian and island programs, management of the national parks, and land exchanges and appraisals, GAO has not conducted sufficient new audit work since its 2003 report to fully assess the department's progress in addressing those challenges."

Limits on Federal Agency Actions

The following cases are illustrative of limitations that may be imposed upon federal regulatory actions in regard to the Endangered Species Act.

TVA v. Hill 

 

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (The Snail Darter case)

 

The Facts

 

The Tennessee Valley Authority (TVA), established by President Franklin Roosevelt during the Great Depression to bring electricity to parts of the rural south, began construction of the Tellico Dam and River Project on the Little Tennessee River in 1967. The goal of the project was to create not only hydroelectric power, but shoreline development, recreational opportunities, and flood control. When fully operational, the planners intended the Tellico Dam to impound water covering approximately 16,500 acres, converting the Little Tennessee's shallow, fast-flowing waters into a deep reservoir some 30 miles in length.

 

In 1973, an ichthyologist [ichthyology is the study of fish] exploring the area that would be flooded by the Tellico Dam, discovered a previously unknown species of fish: a three-inch, tannish-colored perch called the Snail Darter. Studies of this small fish showed that the whole species lived in that small part of the Little Tennessee River which would be turned into the Tellico Dam Reservoir. To protect the Snail Darter and its habitat, the Secretary of the Interior listed it as an Endangered Species.

 

The Lawsuit

 

District Court (trial court): In 1976, a citizens group, including farmers, sportsmen, archaeologists, and representatives of the Cherokee Nation sued the TVA in Federal District Court to "enjoin" [stop] construction of the dam and creation of the reservoir arguing that these actions would violate the Endangered Species Act by causing the extinction of the Snail Darter. The plaintiffs argued that once a federal project is shown to jeopardize an endangered species, a court must issue an "injunction" that will halt the activity.

 

The District Court agreed with the plaintiffs that completion of the Tellico Dam project would indeed destroy the Snail Darter's critical habitat and probably lead to its becoming extinct. In spite of this, the Court said:

1. the project was 80% complete (and stopping the project would waste the millions in taxpayer money already spent), and

2. the Congress continuously allocated funds for the project even though it knew about the Snail Darter's plight.

Therefore, the project could be completed.

 

In its decision, the Court posed an interesting question: If it ruled for the Snail Darter, wouldn't it be possible that projects 99% completed could be derailed if an endangered species was discovered before the final 1% was accomplished?

 

Following the District Court's decision, the TVA informed Congress that it was continuing its efforts to save the Snail Darter (by transplanting it to another section of the Little Tennessee River) and Congress provided funding to complete the project.

 

The Court of Appeals: The federal Appeals Court, reviewing the ruling of the District Court, disagreed with the District Court's decision and demanded that all activity at the Tellico Project which "may destroy or modify the critical habitat of the Snail Darter" be stopped. The Court said that the project could not continue until one of two things occurred:

1. Congress legislatively exempted the Tellico Project from compliance with the Endangered Species Act, or

2. the Snail Darter was no longer in danger of extinction.

As to the question asked by the District Court whether a project could be stopped dead in its tracks on the eve of completion, the Appeals Court said that "the detrimental impact of a project upon an endangered species may not always be perceived before construction is well underway." The Appeals Court said that "whether a dam is 50% or 90% completed is irrelevant in calculating the social and scientific costs attributable to the disappearance of a unique form of life."

 

Following the Court of Appeals decision, Congress again decided to fund the Tellico Dam Project, but now included additional moneys for TVA's efforts to relocate the Snail Darter to a suitable habitat beyond the reach of the Tellico Dam reservoir.

 

The Supreme Court: The Supreme Court, reviewing the ruling of the Appeals Court, asked itself two questions:

1. Would the TVA violate the Endangered Species Act if it completed and operated the Tellico Dam as planned?

2. If the TVA's actions would violate the Act, is an "injunction" the appropriate way to address the problem?

The Supreme Court answered yes to both questions. Chief Justice Warren Burger explained the Court's thinking about the Snail Darter and the Endangered Species Act:

"It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species [that exist] would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after ... [it knew about the dam's ] ... impact upon the survival of the snail darter".

"One would be hard pressed to find a statutory provision whose terms were any plainer than those in Section 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species". This language admits of no exceptions."

 

"This view of the Act will produce results requiring the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds. But examination of the language, history, and structure of the legislation ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.

 

The Supreme Court agreed with the Appeals Court. The Tellico Dam project could not be completed.

 

The rulings of the Supreme Court and the "God Committee" should have ensured the survival of the Snail Darter. In mid-1979, however, Senator Howard Baker (the Republican Senate minority leader) and Congressman John Duncan, both from Tennessee, buried a small provision into a large piece of legislation pending before the Congress. This provision undid the Supreme Court's decision in TVA v. Hill and provided that the Tellico Dam project could be completed without further legal delay. The project was completed in late-1979.

 

No Snail Darters survived in that part of the Little Tennessee River impacted by the Tellico Dam project. Small populations of the Snail Darter, however, were subsequently discovered. As a result, the Department of Interior now lists the species as "threatened" rather than "endangered".

 

The Fate of the Snail Darter

 

"Following the Supreme Court's decision, the "God Committee" [a.k.a. “God Squad”], created under Section 7 of the Act, assembled to consider exempting the Snail Darter and the Tellico Dam project from the restrictions of the Endangered Species Act. On the basis of economic rather than ecological grounds, the Committee denied the Tellico project an exemption."

 

By wan of information, here is a bit more information about the so-called "God Squad."

The God Squad

 

"A 1978 amendment to section 7 of the act allows agencies to implement an action that would be likely to jeopardize a listed species provided the action is declared exempt by a cabinet-level committee called the Endangered Species Committee or, informally, the "God squad" (Sec. 7(e). The committee must base its decision on a set of criteria outlined in Sec. 7(h), including that:

• The benefits of the action must outweigh the benefit of proposed alternative actions;
   

• The action must be in the public interest and of national or regional significance; and
   

• Reasonable mitigation measures must be established to minimize the impact on the listed species.

The Endangered Species Committee is convened only when an application is made for such an exemption and that application meets certain specific requirements. Historically, the committee has been convened only a few times and has granted exemptions even less frequently."

 

The "God Squad", consists of seven members (Secretaries of the Agriculture, Army, and Interior, Chairman of the Council of Economic Advisors, Administrator of the National Oceanic and Atmospheric Administration, and one individual from the affected state). According to statute, five of these members must concur that  an action will likely jeopardize the viability of a listed species, or must conclude that the issue before them is of regional or national importance, or determine that the benefits to be derived from a proposed  action demonstrably outweigh the alternative benefits of preserving the species. Regardless of their decision, they must assure themselves, to the maximum extent possible, that there are no reasonable and prudent alternatives to their decision for final action.

Lujan v. Defenders of Wildlife

 

The famous "Lujan" case is actually a set of two cases beginning with Lujan v. National Wildlife Federation [497 US 871 (1990)] (a.k.a. Lujan I) (argued before the Supreme Court by the current Chief Justice of the Supreme Court, John Roberts) followed by Lujan v. Defenders of Wildlife [504 U.S. 555 (1992)] (Lujan II). John Echeverria and Jon T. Zeidler of Georgetown University's Environmental Law and Policy Institute comment upon these two important cases in their paper "Barely Standing: The Erosion of Citizen "Standing" to Sue and Enforce Environmental Law." They describe what transpired with these cases in the following words:

"Lujan v. National Wildlife Federation (Lujan I) The Court, by a vote of 5 to 4, ruled that the National Wildlife Federation lacked standing to challenge a decision of the Bureau of Land Management (BLM) to review the classification of federal lands and open them to various kinds of resource development. The Federation contended that the BLM had acted in violation of the Federal Land Policy and Management Act and had failed to prepare an environmental analysis as required by the National Environmental Policy Act. To establish its standing, the Federation filed affidavits of several of its members who asserted that they used land "in the vicinity" of federal lands affected by the agency's decision, and that opening these lands to development would interfere with "recreational use and aesthetic enjoyment" of the lands.

 

The Court, reversing a federal appeals court, ruled that the government was entitled to summary judgment based on the standing issue. The Court concluded that the affidavits pointed to types of injuries that would ordinarily be sufficient to establish standing. But the Court ruled that the members' assertions that they used lands "in the vicinity" of the specific lands allegedly threatened by the agency decision were inadequate to demonstrate that they were "actually affected" by the BLM's decision.

 

Lujan v. Defenders of Wildlife (Lujan II). Two years later, the Court expanded upon Lujan I by ruling that Defenders of Wildlife lacked standing to challenge a determination by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that the consultation requirement of section 7 of the Endangered Species Act (ESA) did not apply to federal government actions in foreign nations.

 

Justice Scalia, speaking for the Court, concluded that Defenders had failed to establish the type of "imminent" injury necessary to satisfy the "injury in fact" requirement for Article III standing. Defenders relied on several affidavits of members who were interested in endangered species conservation and had visited the sites of two foreign development projects which threatened particular species, but who could not specify when they planned to return to these sites. Justice Scalia said that this type of "some day" intention was inadequate to confer standing. Moreover, Justice Scalia said that a demonstrated professional interest in a particular species was insufficient, by itself, to establish standing to challenge a foreign development project which threatened the species.

 

Speaking for himself and three other Justices, Justice Scalia also concluded that Defenders failed to satisfy the "redressability" requirement for standing. He stated it was unclear whether other federal agencies would believe they were bound by a revised regulation, or whether these foreign development projects (which were also receiving support from other nations) would actually be halted if the U.S. withdrew its support.

 

Justice Scalia laid out the theory of standing he outlined prior to his appointment to the Court and made it a formal part of U.S. Supreme Court standing doctrine. He said that standing "depends considerably upon whether the plaintiff is himself an object of the action (or foregone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed."

 

The most significant aspect of Lujan II is Justice Scalia's rejection of the idea that Congress can confer standing by adopting an expansive citizen suit provision. Defenders sought to establish its standing based on the provision of the Endangered Species Act which authorizes "any person" to bring a civil suit "to enjoin any person . . . who is alleged to be in violation of any provision of this chapter." To permit Congress to confer standing through such a provision, Justice Scalia said, would authorize individuals to sue to enforce the "undifferentiated public interest" in seeing that the laws are enforced. This would violate the principle of separation of powers, according to Justice Scalia, by "enabl[ing] the courts, with the permission of Congress, to assume a position of authority over the governmental acts of another and co-equal department."

 

Justice Kennedy (and Justice Souter) joined in most of Justice Scalia's majority opinion, but filed a separate concurrence. Significantly, they qualified Justice Scalia's discussion of the issue of Congress' authority to confer standing by enacting citizen suit provisions. Justice Kennedy wrote that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view." He emphasized that "as government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition." Thus, to an important, if uncertain degree, Justice Kennedy (and Justice Souter) left open the possibility that Congress can still enact legislation conferring standing to sue."