Statement of John D. Echeverria, Director, Environmental Policy Project, Georgetown University Law School
My name is John D. Echeverria. I am the Director of the Environmental
Policy Project and an Adjunct Professor at Georgetown University Law
Center. The mission of the Environmental
Policy Project is to conduct research and education on legal and policy issues
relating to protection of the environment and conservation of natural
resources. I appreciate the opportunity
to testify today.
In my testimony I will address three issues:
(1) the proposal in the administration=s recent budget submission to Congress to effectively bar citizens from
going to court to enforce certain provisions of the Endangered Species Act
(ESA); (2) some of the likely difficulties and counter-productive consequences
of seeking to advance species conservation goals through taxpayer-funded Aincentive@ programs; and (3) the value of critical habitat designations in
furthering the objectives of the ESA.
Congress Should Reject the Proposed ESA AExtinction Rider@.
The recent administration budget submission
to Congress includes a proposal to effectively bar citizens from continuing to
go to federal court to enforce deadlines in the ESA for the listing of
threatened and endangered species and for the designation of critical habitat.[1] In my view this proposal is unwise for two
reasons: first, it would undermine one of Congress= most valuable tools for ensuring that
federal agencies comply with the ESA and other environmental laws; and, second,
it fails to address the most obvious solution to the growing volume of lawsuits
being filed against the agencies: additional funding for the agencies so that
they can perform their statutory responsibilities in timely fashion.
Environmental groups and others do not file
lawsuits under the ESA simply because they believe it is in their self-interest
to do so. Rather, they sue because
Congress itself has specifically authorized and encouraged the filing these
suits. Section 11(g) of the ESA
provides in part Aany
person may commence a civil suit... to
enjoin any person , including the United States and any other governmental
instrumentality or agency ... who is alleged to be in violation of any
provision of this chapter or regulation issued under the authority thereof.@
This so-called citizen-suit provision is similar to the citizen-suit
provisions included in other major federal environmental laws. See, e.g., 33 U.S.C.
1365 (Clean Water Act citizen suit
provision); 42 U.S.C. 7604 (Clean Air
Act citizen suit provision).
It is important to emphasize that Congress
has not authorized the filing of these suits on any of a variety of different,
or potentially novel, legal theories.
Rather, section 11 simply authorizes suit for Aviolations@ of the ESA and ESA implementing regulations. Most citizen suits brought under the ESA involve entirely
straightforward application of clear law to undisputed facts. In many cases, the legal issue presented is
no more complicated than the question of whether a motorist has committed a
parking meter violation.
The reason Congress has authorized these
kinds of straight-forward lawsuits B in the Endangered Species Act and in many other laws B is because this type of litigation B or, equally important, the threat of such
litigation -- is an effective tool for ensuring that the agencies actually
carry out the law as written. Congress
has the opportunity to enact or throughly amend major statutes, such as the
environmental laws, on a relatively infrequent basis. Over a decade has passed, for example, since Congress adopted
major amendments to the ESA. On the
infrequent occasions when Congress enacts major legislation, it is typically
only after sustained public debate and focused congressional attention to the
issues.
The difficulty frequently starts, as Congress
has discovered through repeated, painful experiences, when the agencies begin to implement the legislation Congress has
enacted. After legislation passes,
public attention to an issue typically wanes.
Coalitions of regulated businesses affected by new legislation typically
lobby the agencies to delay its implementation or to adopt strained
interpretations of the law that will lessen their regulatory burdens. These efforts are countered, to a limited
degree at least, by environmental advocates, who attempt to speak on behalf of
the broad public interest protected by the new law. Unfortunately, concentrated wealth and power frequently prevails
over the broad public interest in this process. As a result, agency implementation of environmental laws all too
frequently threatens to subvert the will of Congress, almost always in the
direction of less environmental protection than Congress intended.
Citizens suits provide a solution to this
problem. By empowering individual
groups and citizens to directly enforce the law Congress has written, Congress
creates an important check on the agencies= ability to subvert Congress= will. The goal is not to set
up the courts as the arbiters of environmental disputes or to assign citizens
groups around the country some special policy-making responsibility. Instead, the goal is simply to enlist our
established judicial procedures and willing lawyers (motivated by a promise of
attorneys fees if they bring a successful suit) in the effort to see that
Congress= will is carried out. Ideally, the mere threat of successful
litigation will prevent an agency from flouting the will of Congress and avoid
the need for actual litigation.
The late Judge J. Skelley Wright, of the U.S.
Court of Appeals for the D.C. Circuit, spoke eloquently about the issue of
enforcement of environmental laws thirty years ago in a landmark case, Calvert
Cliffs Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449
F.2d 1109 (D.C. Cir 1971). Referring
to the National Environmental Policy Act and other environmental legislation,
he observed that Arecently
enacted statutes attest to the commitment of the Government to control, at long
last, the destructive engine of material >progress.=@ The next step, he said, was to see that Aimportant legislative purposes, heralded in
the halls of Congress, are not lost or misdirected in the vast halls of the
federal bureaucracy.@ The citizen suit is Congress= most effective tool for ensuring that its
objectives are not Alost
or misdirected.@ The
administration=s budget proposal, on the other hand, would
encourage legal mandates to become lost or misdirected, weakening both the ESA
and the authority of Congress.
In
addition, the proposal in the administration=s budget submission fails to address one the most obvious and immediate
causes of the growing volume of
lawsuits being filed under the ESA.
Environmental groups are in a position to sue over the failure of the
government to list species and designate critical habitat because the agencies
have a backlog of work that leads them to repeatedly violate their mandatory
duties to carry out these steps under ESA.
A major reason for these failures on the part of the agencies is a longstanding shortfall in funding to support
the necessary scientific and other technical work. Congress could achieve significant progress in limiting the volume
of lawsuits under the ESA by increasing appropriations to the agencies. As
compared to the approach of eviscerating the citizen-suit provision, increased
funding levels will allow Congress to reduce the volume of litigation against
the agencies while simultaneously preserving an important tool to prevent
agencies from ignoring congressional mandates.
The Potential Unintended Consequences of AIncentives.@
A great deal of attention has recently
focused on the proposed use of financial payments to property owners B so-called Aincentives@ B as a complement, or possibly even as an
alternative, to enforcement of the
ESA. Financial incentives may have a
potentially valuable, limited role to play in species conservation In my view, however, the extensive use of
incentive payments would create many difficulties and would likely be
counterproductive to the goal of protecting and restoring threatened and
endangered species.
First, according to some, expansive
taxpayer-funded incentive programs can be justified on the ground that endangered species regulations routinely
result in constitutional Atakings@ mandating the payment of compensation under
the Takings Clause of the Fifth Amendment.
Congress should agree up front to arrange payments to landowners subject
to the ESA, according to this argument, to avoid the filing of takings claims
by aggrieved property owners after the fact.
In
reality, however, ESA restrictions rarely if ever result in constitutional
takings. Indeed, while a number of
takings claims have been brought under the ESA, I am not aware of a single case
in which it has been definitively determined that a federal ESA regulation has
resulted in a taking. There are several
explanations. First, the ESA is a
relatively flexible law which rarely if ever produces the kind of severe
economic impact that rises to the level of a constitutional taking. Second, wildlife has long been understood
to be a public property resource which the public has broad authority to protect
from harm or destruction. Because restrictions
on an owner=s actions that threaten wildlife prevent a
trespass on public property rights such restrictions cannot logically be said
to result in a taking of private property rights.
Second, the proposal to pay financial
incentives to those subject to the ESA also raises significant questions of
fairness, especially if the incentives would be funded out of general tax
revenues. The value of land for
development and for other forms of profitable exploitation reflects in large
part the value-enhancing effect of public investments, from the public highway
system to agricultural subsidies.
Because a good deal of private property value is publicly created, an
owner has no legitimate claim on the public fisc simply because he cannot exploit
a property=s full economic potential. A fairness problem also arises from the fact
that a relatively small number of firms and individuals with large land
holdings are likely to benefit the most from incentive programs. Approximately 125,000 timber or farm
owners, less than two-tenths of one percent of all private landowners, own 38%
of all the private land in the United States.[2] Timber and farm interests that amount to
less than 3% of all landowners own more than 80% of all private land.[3] Thus, land owner incentive programs have
a significant potential to create a
significant new subsidy program for the relatively well-to-do at the expense of
the ordinary taxpayer.
Finally, paying financial Aincentives@ to land owners has the potential to lead to over-investment in land
the development of which could lead to endangered species problems. The ultimate goal of public policy should
be to encourage investors to direct their attention to projects that avoid ESA
(and other problems) rather in the direction of projects that can give rise to
such problems. The ready availability
of financial assistance to investors facing ESA problems would provide little
incentive to investors to avoid investment opportunities that carry this type
of risk. Ironically, therefore,
financial assistance to landowners, while potentially useful in avoiding
political conflicts in the short-term, could lead to more numerous and more
serious clashes between development interests and ESA concerns over the
long-term.
The nature of the problem can be illustrated
in a number of ways. It is widely
recognized that the availability of low-cost federal flood insurance in flood
plain areas, rather than protecting property in areas subject to flooding, has
actually increased development in flood plains and exposed more property to the
risk of flooding. In the view of some,
International Monetary Fund bailouts of debtor nations, while useful in the
short-term, have encouraged some nations to engage in too much borrowing and
fiscal irresponsibility in the long-run.
So too in the case of ESA incentives, by lowering the likely cost of
investing in areas that present serious ESA problems, the availability of
incentive payments could actually encourage investors to invest more in these
areas, tending to exacerbate rather than reduce development conflicts.
As I suggested, this is not to indicate that
financial incentives have no place in species conservation. In some cases, short of outright public
acquisition of the property, the only way to achieve effective habitat
management may to enlist the land owner as an active manager of land on behalf
of the environment. The rather special
case of managing woodpecker habitat in North Carolina, for example, provides an
example of where public payments to enlist land owner cooperation may be useful
and necessary. But in the general run
of cases, where the basic issues are whether natural habitat can be destroyed
for development, additional water withdrawn for irrigation or other purposes,
or additional trees cut for commercial purposes, taxpayer-funded payments to
landowners who face ESA problems are more problematic.
At a
minimum, these concerns about the potentially perverse effects of incentive
payments warrant caution in the design of incentive program. For example, a stronger case can be made
for incentive payments to the subset of owners who can demonstrate that the
enactment and implementation of the ESA seriously disrupted settled development
plans than to investors who now or in the future make investments in the face
of foreseeable ESA problems. Limiting
incentive payments to owners whose plans have been significantly disrupted by
new legal enactments would have the twin advantages of focusing financial
assistance on those owners likely to have the strongest equitable claims to
public financial assistance while simultaneously sending a clear message that
such assistance will not be made available to owners who voluntarily make an
investment in the face of known environmental problems.
The Value of Critical Habitat Designations.
Finally, I wish to offer a brief word in
favor of critical habitat designations and of the current legal requirement
that critical habitat be designated concurrently with the identification of a
species as threatened or endangered.
In the view of some, critical habitat
designation is superfluous because it adds little to the legal mandates to
avoid Ajeopardy@ to species under section 7 of the Act or to avoid a Atake@ of a species under section 9.
In a sense this is a fair and accurate statement because a federal
agency likely can halt or control any activity based on section 7 or 9 which
would adversely affect critical habitat.
The critical role of habitat designation B and the reason Congress included separate proscriptions in section 7
against jeopardizing species and destroying critical habitat B is that it serves to constrain agency
discretion. In practice, both the terms
Ajeopardy@ and Atake@ are rather elastic. The
agencies therefore have a fair amount of discretion in applying these terms in
particular cases. Certainly the courts
are compelled to accord substantial deference to an agency=s determination that a particular action will
not jeopardize a species or produce an illegal take. By contrast, once critical habitat is defined and drawn on a map,
the ESA=s relatively clear prohibitions against
actions that would result in the Adestruction or adverse modification@ of critical habitat presents a fairly straightforward obligation for
the agencies to follow and for the courts to apply. For the reasons discussed above, there are compelling reasons to
believe that the agencies, subject to constant pressure from the regulated
community, will fail over time to carry out their ESA obligations as Congress
intended. An enforceable command to the
agencies to promptly designate and protect critical habitat helps ensure that
Congress= ESA goals will actually be achieved.
The concern has been expressed that the
requirement to designate critical habitat imposes an unreasonably heavy burden
on the agency at a point in time when it has only begun to identify the threats
to the species and to devise a recovery strategy. However, the Act makes clear that the initial designation need
not be definitive. The Act directs the
agency to rely on the Abest
scientific and commercial data available@ and explicitly indicates that an agency may Afrom time-to-time... revise... [the]
designation.@
Furthermore, an agency is directed to take into consideration Athe economic impact, and any other relevant
impact, of specifying any particular area as critical habitat.@
Thus, an agency has wide latitude in selecting the factors to apply in
designating critical habitat. Given
the significant flexibility built into the Act, it cannot reasonably be said
that the habitat designation requirement imposes an unreasonable strait jacket.
*
* *
Thank you for the opportunity to
testify. I would be happy to respond
to any questions.
[1] The
pertinent language, which some environmental advocates have called an Aextinction rider,@ reads as follows: AThat notwithstanding the specific time frames
and deadlines of section 4(a) and (b) of the Endangered Species Act of 1973, as
amended, not to exceed $8,476,000 shall be used for implementing subsections
(a), (b), (c)(1), (c)(2)(B)(iii) and (e) of section 4 for species that are
indigenous to the United States, to be expended solely for (1) complying with
court orders or settlements in effect as of the date of the passage of this
law, and (2) undertaking such other actions as determined by the Secretary to
be consistent with the priorities established by a listing priority system to
implement these subsections and subject to the requirements of this
appropriation.@
[2] See
Environmental Defense Fund, AWhy Takings Bills Threaten the Property Rights and Values of Most
Landowners (1995).
[3] Id.