Re: NANFA-- Bush and the ESA

Christopher Scharpf (
Mon, 16 Apr 2001 19:56:42 -0400

>However, I think it is important to note that no law is being broken.

Okay, I see your point. Still, others would argue that a law *is* being broken
when a law states that a federal agency is obligated to perform certain
functions as stipulated by that law, yet chooses not to perform those functions
for whatever reason. In the case of the ESA, environmental lawyers would argue
that failure to act *is* breaking the law.

>There are already means in place to ensure the proper
>enforcement of existing laws.

Well....yes. One way is for citizens to sue the gov't to get them to enforce the
law. Congress set those statutory guidelines on purpose because they knew that
agencies would have a hard time enforcing certain laws in an atmosphere
of political pressure and controversy.

>Just because I don't like the way the government is enforcing it's laws, do
>I have the right to sue? I would suggest other channels should be pursued.
>If a citizen can sue, then let's make it fair and be able to sue all
>branches of the government when it is perceived the law isn't being
>adequately enforced.

Now, before we get any deeper into this, it's perhaps important to clarify what
me mean by "sue." This means simply to file suit. The person(s) filing suit are
not doing so to receive a cash settlement (the way a person might sue, say, a
company for negligence). Instead, they're filing suit in the hope that a federal
court judge will render a judgment forcing the federal agency to adhere to the
law. The organization filing suit does not receive a cash settlement (although
they may be reimbursed for attorney's fees should the judge rule in their
favor). All they want is for the law to be enforced. Or, in the case of
endangered species lawsuits, for USFWS or NMFS to propose a listing, make a
final ruling on a listing, or propose or rule on critical habitat designations.

>How about if I sue my local police department because laws are being broken
>by motorists who are speeding and I feel endangered as a result?

That's a funny concept...but a poor analogy. You can't sue the police dept.
because motorists speed. However, you could conceivably sue the police dept. if
they were willfully ignoring their duty to enforce the speed limit, or any other
law that comes under their jurisdiction.

>I don't think suing the federal government is the most appropriate or
>most effective channel for this fight.

Then what's the point of having a federal law if you can't trust the gov't to
enforce it? Shouldn't the gov't be enforcing the law in the first place?

I agree: if the law sucks, or if it's flawed, then it should be repealed or
changed by an act of Congress.

Aye, but there's the rub. Although present-day Republicans hate the ESA as it's
currently written, they are loathe to get rid of it, or to gut it, for fear of a
public-relations backlash. Their most politically expedient alternative is to
make it difficult for Fish & Wildlife to adequately enforce the law by slashing
its endangered species budget. Actually, this was going on in the Clinton
Administration, too, so it's not fair to blame Bush for all of it. What's
particuarly irksome about the Bush proposal, though, is that it removes the
private citizen from the equation and puts the onus wholly on the gov't (an
odd turnabout for a Republican!). And since the Bush administration wants to
do little or nothing about endangered species, it's seeking to remove the
annoyance of them damn tree-huggers and whale-kissers from forcing them to do so
in court.

For conservationists, this is not good news. Nearly every important move to
protect endangered species, from Pacific salmon to Alabama sturgeon to Devils
Hole pupfish, has originated *not* with the gov't, but with citizen petitions
lawsuits. Remove these private efforts from the picture, and some of the
greatest environmental triumphs of the 20th centurey would not have occurred. As
one person noted, the Bush "administration has pulled up the drawbridge on
Noah's Ark."

In all fairness, the Bush administration (as was the Clinton administration) is
beseiged with such lawsuits, for a number of reasons, not the least of which is
the lack of funding and political courage to enforce the ESA. A moratorirum on
them is one way to catch up on the backlog. But is it fair to devalue the role
of citizens and courts in a democracy just to get one's house in order? Wouldn't
a better solution be to increase the endangered species budget? The USFWS said
it needs $80-$120 over the next 5 years to handle both old and new listings. Yet
the Bush admin. is giving them around $6.3 million for FY 2001.

It's a political mess, to be sure, with everyone -- including the
environmentalists -- putting their own spin on it. But removing the ability for
you, or me, or anyone, to sue the gov't over non-enforcement of the ESA lets a
few power brokers in Washington decide which species, if any, get protected.

Now THAT'S a scary thought for anyone who loves nature and values biodiversity.

Chris Scharpf

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