Landmark Settlement Under the Endangered Species Act



Summary: A federal court approved a major settlement that likely means many more imperiled species and their habitats will be protected.

From the wolverine’s guttural growl to the delicate chirping of a tiny frog, the call of the wild got a little louder on September 9, 2011.

That’s when the U.S. District Court for the District of Columbia approved historic settlement agreements between the U.S. Fish and Wildlife Service (FWS) and two conservation groups—Wild Earth Guardians and the Center for Biological Diversity. The settlement ended years of litigation over the slow pace of listing decisions under the Endangered Species Act (ESA).

Under these agreements, the FWS must establish annual work plans that gradually reduce the backlog of nearly 800 species over a six-year period, starting with the 251 species that were candidates for listing in 2010. Though the agreements do not mandate the listing of any species, the accelerated process is virtually certain to greatly increase the number of species entitled to ESA protection. That will have potentially significant consequences for development, recreation, and other activities that may affect those species.

Prior to this settlement, the candidate species were stuck in limbo with no federal protection until a listing decision was made. Official ESA listings have been declining steadily, from 522 species during the Clinton administration to only 62 under the George W. Bush administration. At the beginning of 2011, the Obama administration had listed only 59 new species. Many factors have contributed to this backlog. The FWS cites citizen petitions and lawsuits; conservationists cite inadequate resources and political interference. But the overarching problem is that more species are being pushed to the brink of extinction by habitat loss, pollution, invasive species, and increasingly by climate change. Many species have languished as candidates for years before this settlement. Other species, such as the Alaskan song sparrow and Texas salamander, have gone extinct while awaiting protection.

This settlement marks a turning point in the protracted battles over the listing program and gives the FWS some breathing room to catch up with its legal obligations. Perhaps most importantly, and central to this recent litigation, the ESA sets strict deadlines for evaluating threats to species and determining whether a species should be listed. The ESA also requires designation of critical habitat at the same time as listing “to the maximum extent prudent and determinable.” Although economic concerns are not considered in the context of listing, they must be incorporated for critical habitat designations.


Coqui llanero

Listing provides several explicit protections. Section seven of the ESA mandates that all federal agencies carry out programs for the conservation of listed species and consult with the FWS to ensure that activities do not jeopardize the species or adversely modify its critical habitat. In addition, section nine prohibits “any person” from “taking” any individual member of a listed species of wildlife without a permit. Taking is broadly defined to include significant habitat modification that actually kills or injures an animal by, for example, interfering substantially with breeding, feeding, or sheltering.

The FWS has started implementing the settlement, and already its actions are beginning to spark controversy. A case in point: the proposal to list the dunes sagebrush lizard, a three-inch-long species that roams parts of southeast New Mexico and western Texas. This habitat includes the Permian Basin, an area that accounts for nearly 20 percent of U.S. oil production. The species relies on the shinnery oak, a low-growing shrub found along small dunes in the area, for protection. Oil and gas operations have degraded and fragmented this habitat.

Opposition to this listing comes mainly from oil and gas companies, livestock operators and Western Republican legislators who have also introduced a bill to block the listing. They cite the potential loss of jobs and delays in energy production and question the science used to justify the move. The FWS was due to make a final decision on the lizard by December 15 but on December 1 announced it will postpone its decision by six months. FWS officials said the agency will use the extra time to evaluate information about the lizard’s population and loss of habitat. The FWS counters dire predictions about job losses by pointing to a recent study showing that protecting the dunes sagebrush lizard would only affect about one percent of the public lands within the Permian Basin. The FWS also notes that the ESA has mechanisms to address potential conflicts between development and conservation. One option is negotiating habitat conservation plans, which allow potentially harmful activity to continue as long as steps are taken to improve conditions for the species elsewhere.

More controversial decisions can be expected as the FWS works its way through the huge backlog of candidates. The species and their habitats span the United States, including 403 aquatic species in the Southeast that are slated for an initial determination in 2012. If only a fraction is listed, it will have significant impacts on water allocation, industrial uses, and other activities. Other candidates range from the New England cottontail and Bicknell’s thrush in the Northeast to the coqui llanero (a tiny tree frog) in Puerto Rico. Also, the wolverine and Pacific walrus are to be considered in 2013-14.

dunes sagebrush lizard

Dunes sagebrush lizard

At least during this initial stage, the ESA is a science-based law that requires the listing of species to be based solely on the best available biological evidence. This does not mean, however, that economics are never considered or that the law stifles development. A 1995 study by the Massachusetts Institute of Technology concluded that species listings had no bearing on state economic performance. Additionally, several studies by the Government Accountability Office have shown that less than one percent of the hundreds of thousands of projects reviewed under the ESA had the potential to jeopardize listed species—and most of those were allowed to continue with reasonable mitigation conditions.

At the same time, the ESA is credited with saving hundreds of species from extinction, from the charismatic bald eagle and whooping crane to the more humble Salt Creek tiger beetle and Karner blue butterfly. The U.S. Supreme Court has ruled that Congress passed the ESA “to halt and reverse the trend toward species extinction whatever the cost.” Moving forward, this goal will be put to the test for the hundreds of species covered by these settlement agreements. But the fight over the ESA isn’t likely to end any time soon. The House Natural Resources chairman recently kicked off the first of several ESA oversight hearings planned for Congress in an effort to rewrite parts of the law.