NESARC Condemns Continued use of Litigation to Drive Listing of Species

Calls upon Lawmakers to Amend the ESA to Promote Improved Species Conservation

The National Endangered Species Act Reform Coalition (NESARC) expressed frustration with the most recent announcement that the environmental community intends to sue the U.S. Fish and Wildlife Service (FWS) in an effort to drive the listing of hundreds of additional species under the Endangered Species Act (ESA). This week’s “notice of intent” to sue the Federal government calls for listing decisions on 417 species for which petitions have been filed with FWS, which, if pursued, would be one of the largest ESA lawsuits in the statute’s 43 year existence.

“Environmental groups continue to use the courts to drive listings under the ESA to serve a narrow and radical agenda,” said NESARC Chairman Ryan Yates. “By continuing to employ ‘sue and settle’ practices, these organizations are forcing the Federal government to expend limited resources that otherwise could be directed toward the recovery of listed species and the pre-listing conservation of candidate species and species-at-risk,” said Yates.

This week’s announcement is reminiscent of the “mega-listing” litigation that was filed in 2010 to force listing decisions on 251 candidate species, as well as hundreds of other species determinations and designations of critical habitat. The outcome was an unprecedented settlement agreement in 2011 between FWS and several environmental groups, which set the stage for a 20% increase in listed species in the five years following agreement on the settlement.

“The Coalition fundamentally disagrees with the use of litigation to drive FWS species listing decisions. Litigation should be a last line of defense and not the first course of action,” said Yates.

NESARC contends that the uptick in litigation signals more significant flaws with the law itself that must be addressed by Congress. Specifically, the ESA requires that FWS — or the National Marine Fisheries Service (NMFS) for most marine species — make a finding within 90 days of receiving a petition as to whether or not there is “substantial information” indicating that the petitioned listing may be warranted. If this preliminary finding is positive, a 12-month status review is conducted. FWS must make a further finding that the listing either is or is not warranted within one year of receipt of the petition.

NESARC has long argued that these statutory deadlines are far too short, especially given the significant increase in petitions received by FWS and NMFS over the last decade. Missed deadlines account for the much of the litigation that ultimately drains limited resources that should be used for promoting species conservation and recovery.

“This latest action once again highlights the long overdue need for Congressional action to improve the ESA. Statutory and regulatory flaws need to be addressed through legislative reform to prevent unnecessary litigation and ensure that species recovery is primary objective of the ESA,” Yates said.

NESARC is the country’s oldest broad-based, national coalition dedicated solely to achieving improvements to the ESA and its implementation. The Coalition includes agricultural interests, cities and counties, commercial real estate developers, conservationists, electric utilities, energy producers, farmers, forest product companies, home builders, landowners, oil and gas companies, ranchers, water and irrigation districts, and other businesses and individuals throughout the United States.