Tag Archives: endangered species act

The Golden-cheeked Warbler and Piecemeal Environmental Policy

A tiny, migratory songbird is causing a big ruckus in Texas. At issue is the Golden-cheeked warbler’s status according to the U.S. Fish and Wildlife Service (FWS). The bird caused a related stir in 1990 when it was the subject of a petition by members of the anarchist environmental group, Earth First! The petition moved the FWS to exercise its emergency authority to declare a species endangered under the 1973 Endangered Species Act (ESA). In December 1990, the agency issued its final rule designating the bird to be an endangered species.

However, a recent comprehensive study has motivated several groups to call for the removal of the golden-cheeked warbler from the list. The findings, as presented by Texas A&M, has been peer reviewed, published in respected journals, and judged as scientifically sound. It appears the golden-cheeked warbler is not endangered. Even more concerning, the species may not have been in peril in 1990, the year FWS declared an emergency protected status.

What does this mean to the hundreds of private property owners who have suffered land restrictions, substantial fines, and criminal prosecution as a result of the warbler’s status? For example, one such case saw a Texas rancher penalized for clearing Ashe Juniper (Cedar) from his property. An activity FWS deemed damaging to the protected bird’s breeding habitat. In a negotiated settlement, the landowner transferred 48 acres to a public preserve and paid $220,260 in land management fees.

Even if one were to believe the earlier, mostly anecdotal based evidence that the golden-cheeked warbler was threatened, the latest research supports its removal from the list of endangered species. Still, some ask since recovery efforts have been so successful, why should the warbler be delisted to face uncertainty?

Simple answer first, the endangered species listing is for species that are, in fact, endangered. To maintain a status that is not evidenced based, delegitimizes the significance of the entire list. Second, although there is no geographical designation of warbler habitat, Ashe Juniper (Cedar) trees are recognized as essential to warbler nesting. So, while the bird is a protected species, landowners are subject to restrictions, in what amounts to a regulatory taking of property rights in regards to Ashe junipers.

Finally, the listing of the warbler has caused a clash of agencies, pitting federal against state in a battle of species management. As well, the limited focus on warbler breeding habitat protection has contributed to serious health issues, particularly for children.

To explain, while the FWS strictly enforces habitat (a tree) protection, the Texas Parks and Wildlife Department (TPW) calls the golden-cheeked warbler issue, “A single-species approach to wildlife management“. As a result of federal restrictions, the invasive characteristics of Ashe juniper has negatively impacted the natural ecosystem. According to TPW, in areas where the tree has been left to survive, it has depleted groundwater, increased soil erosion, and impacted the diversity of other plant species. The rise of Ashe juniper, being of little food value, has disrupted the natural habitat of other animal species. In fact, TPW has worked to limit, even eradicate the Ashe juniper while the FWS punishes citizens for clearing the tree from their land.

The increase in Ashe Juniper has also resulted in an upsurge of illness during its pollination cycle. Termed “cedar fever” the effects of Ashe juniper allergies can range from itchy eyes to pneumonia and even trigger asthma attacks. The Ashe juniper tree has one of the most allergenic pollens. In fact, The Asthma and Allergy Foundation of America (AAFA) has named seven Texas cities in its 2015 list of the most challenging places to live in regards to annual pollen scores.

So here we have the question, should the golden-cheeked warbler be removed from the list of endangered species? Yes. If not merely for the logic the bird is not threatened, then for the impact the designation has to other sensitive areas. More consideration should be made to the causal sequence of government agency decisions prior to making rules. Consideration should be given to economic impact to private citizens, potential health issues, and an analysis of the possible harm to other plant and wildlife species. When pondering the importance of diverse species to a healthy environment, too often the human element is not represented in the equation. A more holistic approach would better assure a healthy, balanced ecosystem.

Federal Land Regulation Continues to Strangle Energy Production…

Federal land ownership in the United States continues to grow despite the federal government already owning more than half of most of the western states. While some have been advocating for the return of this land to the states or protect it from being closed off from oil and gas operations, the Obama Administration has worked just as hard to increase the federal government’s land grab. Contrast:  As President Bush’s second term as president was coming to an end, 4 million acres of land in Alaska was released by the Bureau of Land Management (BLM) for drilling and exploration. Seven years later, President Obama has proposed to set aside 12 million acres in Alaska, designating it as “wilderness” and off-limits to up to 42 billion barrels of oil.

Most recently, the Obama administration has proposed the largest critical habitat designation ever, setting aside 226 million acres of ocean off Alaska’s coastline (an area twice the size of California) to protect the Arctic ringed seals who were listed as “threatened” under the Endangered Species Act in 2012 after environmental activists petitioned the Obama administration.

Even though NOAA says that oil and gas activities have occurred in areas with protected species in the past, designating these Alaskan waters as a critical habitat would mean that all oil and gas activity would have to be evaluated based on how much it would impact ringed seals. Alaska’s outer continental shelf is considered to be one of the world’s largest untapped oil and gas reserves boasting as much as 27 billion barrels of oil and 132 trillion cubic feet of natural gas.

Other federal lands expansion that slipped into the National Defense Authorization Act (NDAA) would add 250,000 acres of new wilderness in western states and put thousands more acres off limits to drilling and mining in states.

In 2011, the U.S. Forest Service originally tried to ban fracking in the 1 million acre George Washington National Forest, but failed. It would have been the first outright ban on the practice in a national forest.

Much of the land targeted for government takeover holds great oil and natural gas resources which could provide jobs in the energy industry and a flow of resources from our own American supply. Once those lands become “monuments,” access to those natural resources is limited and in the hands of the federal government. The government currently owns 650 million acres, or 29 percent of the nation’s total land.

The Omnibus Public Land Management Act of 2009 and the Northern Rockies Ecosystem Protection Act (NREPA). The Omnibus bill was passed with over 100 land grab measures. The NREPA included federal takeover of nearly 24 million acres of land in the American west and northwest; however, NREPA never made it out of the House subcommittee.

The ability of the White House to simply snatch land from under the feet of the American people comes from the Antiquities Act of 1906. The Act was initially intended to set aside small portions of land for monuments and national parks, but has since been abused by lawmakers to control large quantities of property. Federal government land control and land acquisition takes away opportunities for development, particularly when it comes to much needed energy resources. The land designated as “monument” space could have created jobs, boosted the economy and enhanced our energy security.

Sand Dune Lizard and Lesser Prairie Chicken Could Halt Industry

The plight of two species is putting thousands of acres and the future of the oil and gas industries at risk. If put on the endangered species list, the sand dune lizard and the lesser prairie chicken could block off land from oil and gas companies across multiple states.

The lesser prairie chicken was added to the threatened species list after a court ruling in March 2014. The chicken has known habitats in Colorado, Kansas, Oklahoma, Texas and New Mexico, and land management decisions could impact over 100 million acres across the five states.

The sand dune lizard is posing particular problems for the oil industry in West Texas. The lizard’s 800,000 acre habitat spans Southeastern New Mexico and West Texas and just happens to sit right in the middle of Texas oil country.

Given the Obama administration’s recent demonstrations of its willingness to put potentially beneficial land under federal protection, many in the oil and gas industries are concerned that even the potential presence of these species could shut down oil and gas rich areas from exploration or further development.

Shutting down oil-rich areas to protect these species isn’t just bad for the oil and gas industry ― it’s bad for its employees as well. Texas state officials and energy executives have warned that classifying the sand dune lizard as an endangered species could cost thousands of Texans their jobs.

Endangered Listing for Monarch Butterfly = Wrong Direction

While the federal government has already been involved and helping the monarch butterfly populations in the United States, recently, the U.S. Fish and Wildlife Service announced that it is going to protect the butterfly under the Endangered Species Act (ESA). The act has been used to save a number of species in the past. However, more and more evidence is showing that the ESA is also being used for other purposes. By placing species on the list, land use by the species can be turned over to the federal government. Recently, the prairie chicken was put on the list along with the infamous spotted owl standoff.

The butterflies mate, lay eggs and feed on milkweed plants while they are temporarily in the United States. Potentially, the federal government could gain control over all of the milkweed plant land.

Even a well-respected monarch butterfly expert (Chip Taylor) said that he does not welcome this form of protection of the butterfly. Taylor, an insect ecologist at Kansas University said:

Nobody wants the government to tell them what to do with their property. The real challenge is to get the message out and get the public involved. This really is the way to go.

The federal government can continue to grow its size and power through many actions including using the Endangered Species Act. As Taylor pointed out, there are other ways to protect a species. Public response and efforts to endangered species around the globe is really having great success. Federal government intervention is the wrong direction.

Move Over Spotted Owl, Make Room for the Sage Grouse

The federal government is aggressively protecting the sage grouse. A few weeks ago, the Feds listed the Gunnison sage grouse as “threatened” under the Endangered Species Act. The Feds want to add the greater sage grouse to the list. The greater sage grouse:

  • lives in 11 western U.S. states
  • covers 165 million acres, almost as big as Texas
  • population dropped from around 16 million over 200 years ago, to under half-million today

Conservationists believe that the sage grouse numbers are getting dangerously low. Human activity, specifically energy exploration and development, is the main cause of this issue, they claim.

However, local efforts in conservation and local economies are overlooked when considering listing under the Endangered Species Act in these cases. Overzealous efforts could have irreversible consequences to local economies and hinder growth. Much of the land in western United States is owned by the federal government. Imagine if that same amount of land in the eastern U.S. was also owned by the Feds. More than likely, the United States would not be the global leader that it is today.

Environmental Regulation through Litigation

Through sue and settle litigation, interest groups have forced the Environmental Protection Agency (EPA) to issue new regulations, often bypassing proper procedures.

How does this happen? Twenty U.S. statutes contain what are known as “citizen suit” provisions, allowing citizens to file suit against a federal agency when that agency has failed to carry out a nondiscretionary duty by its prescribed deadline. The Clean Air Act, the Clean Water Act and the Endangered Species Act, for example, allow for citizen suits. And because federal agency rulemaking is notoriously behind schedule, every missed deadline provides an opportunity for litigation. The EPA has been a party to a number of these lawsuits.

  • After environmental groups file a complaint against the EPA based on these missed deadlines, the parties work out a settlement or consent decree between themselves. This process allows regulation-friendly plaintiffs to work out a rulemaking plan with a federal agency without involving third parties.
  • Intervening in these cases is difficult, and affected parties are frequently unaware that a lawsuit has even been filed until an agreement has already been worked out.
  • From 2009 to 2012, the U.S. Chamber of Commerce puts the number of sue and settle lawsuits at 71, with the Sierra Club and WildEarth Guardians leading the way as plaintiffs in 34 and 20 cases, respectively. The EPA was a defendant in 60 of these cases.

Plaintiffs have used sue and settle with great success. However, the agreements are often procedurally deficient, and the deadlines to which the litigants agree often leave interested parties with insufficient time to comment effectively on the proposed rules:

  • After a lawsuit by the Environmental Defense Fund and the Sierra Club, among others, the EPA issued its Utility MACT rule, which regulates mercury emissions for power plants. The strict deadlines in the consent decree gave the EPA a very short period of time to assess public comments and issue a final rule, despite the complexity of the rulemaking. The regulation carries an annual cost of $9.6 billion, and it has forced many coal plants to shut down. At the end of 2012, 9.5 percent of coal-fired generation capacity had decided to retire due to Utility MACT, and 20.4 percent were undecided about whether to retire.
  • Environmental groups used sue and settle in five separate lawsuits to force EPA action on states’ Regional Haze plans. The Regional Haze program is intended to be a state program. But in multiple instances, the EPA imposed its own federal plan on states, rather than allowing the states time to correct and develop their own plans, because of the deadlines to which the agency had agreed in the consent decrees. Ratepayers in these states are facing extraordinarily high electricity costs as a result of these lawsuits.

Sue and settle is an attractive vehicle for regulation, because it is very difficult for states and industries to intervene in these lawsuits. Moreover, plaintiffs are often compensated for their attorneys’ fees, incentivizing litigation.

House Passes ESA Reform as Veto Looms

Last week, the United States House of Representatives vote on the Endangered Species Act (ESA) passed 219 to 190.  HR 4315 will now go to the Senate and the White House has said that it will veto the bill.

In addition to requiring federal agencies to make ESA decisions publicly available while respecting while respecting state data privacy laws and private property, HR 4315 would:

  • Require the federal government to disclose to affected states data used prior to an ESA listing decision, and require the federal government’s “best available scientific and commercial data” to incorporate data provided by states, tribes, and local county governments.
  • Require the U.S. Fish and Wildlife Service to track, report to Congress, and make available online the federal taxpayer funds used to respond to ESA lawsuits, the number of employees dedicated to ESA litigation, and attorneys’ fees awarded in the course of ESA litigation and settlement agreements.
  • Prioritize species protection and protect taxpayer dollars by placing reasonable caps on attorneys’ fees to make the ESA consistent with existing federal law. For example, the federal government limits the prevailing attorneys’ fees to $125/hr in most circumstances, including federal suits involving veterans, Social Security, and disability, supporters said. But under the ESA, attorneys are being awarded huge sums, in many cases, at a rate much as $600/hr, they indicated.