Politics undercut species act, suits say

In a twist, an Interior Department investigation provides much of the grist for the legal action.

from the November 20, 2007 edition

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The six lawsuits last week are the first of 55 the group expects to file – one for each species denied protection for which CBD says it can supply documentation of improper political intervention. In all, the group says, the 55 species were denied 8.7 million acres of critical habitat and other protections.

Legal experts say the latest suits could represent a widening of the scope of cases brought for judicial review – and are supported by precedents in environmental law.

"If the CBD can prove that political appointees interfered with the work of the biologists, ordered certain findings, or reversed scientists' decisions, well, they've got a pretty solid line of environmental cases that would support invalidating those decisions," says Patrick Parenteau, a law professor and ESA expert at Vermont Law School in South Royalton.

One CBD lawsuit describes the plight of the Santa Ana sucker, a southern California fish listed as threatened in 2000. Two Interior officials overruled federal scientists who had proposed 23,719 acres of critical habitat protection. The fish got 8,305 acres.

After that decision, however, an internal document dated Dec. 22, 2004, reveals agency staff grousing that the decision at headquarters made no sense and warned of "how difficult this one will be when it comes to straight-facing it with the public and the press."

Political interference is part of a pattern in the Bush administration, the CBD claims. The Bush presidency has seen 58 species listed as endangered, fewer than during any presidency since the law was enacted in 1973. By contrast, 522 were listed under President Bill Clinton and 231 under President George H.W. Bush.

Mr. Vickery at Interior counters that environmental groups won't talk about the tangle of lawsuits they've brought, and how those, combined with limited budgets and manpower at the department's US Fish and Wildlife Service, have slowed the agency's ability to get species listed and critical habitat designated.

"We have inherited years of this stuff," he says. "There's a practical problem of how to list species when you don't have the staff you need."

Legal experts aren't so sure. While agreeing that lawsuits are slowing the ESA process, they say the Bush administration should be making its complaint to Congress – not violating the law and provoking more suits.

"The courts have said you can't use the excuse that you don't have the resources," Professor Parenteau says. "The real fault isn't with the CBD, it's with the administration and Congress. They should change ESA requirements if they don't believe them to be truly justified."

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