The Endangered Species Act (ESA) is known as the heavyweight champion of species protection. The ESA’s reputation is well deserved — 99% of the plants and animals under the Act’s protection have been saved from extinction. If a species is listed as “threatened” or “endangered,” Section 9 of the ESA prohibits any person (including state and federal actors) from “taking” a member of that species. The United Supreme Court famously upheld an extremely broad interpretation of “take”: It includes not only more traditional forms of take (like capturing or pursuing a species) but also habitat destruction.
For all its potential punch, however, the ESA is only effective if a species is listed. Without that action, this prize fighter stays in its corner.
Listing can happen in two ways: The federal agencies in charge of administering the ESA — U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) — can propose a listing, or citizens can file a petition. With limited resources, political pressures, and the ever-present specter of regulatory capture, FWS and NMFS have not always done their jobs. Indeed, “[m]ost controversial listings have been initiated through the citizen petition process rather than by agency action.” Holly Doremus, Preserving Citizen Participation in the Era of Reinvention: The Endangered Species Act Example, 25 Ecology L. Q. 707, 709 (1999). It is citizens—without a strong economic stake in the status quo—who have demanded implementation of the statutory agenda.
Unfortunately, FWS and NMFS have proposed changes to the petition process that would undermine citizens’ ability to achieve listings. SSL has challenged these proposed changes. Among other modifications, FWS and NMFS have proposed several amendments that would increase the burden on petitioners — perhaps to the point of deterring some meritorious petitions altogether — and tweak the rules in favor of interests opposed to conservation.
The following four changes stand out as particularly misguided:
- Requirement that petitioners solicit the participation of every state agency in every state that the subject species is present (for some shark species that would include every state on the Atlantic seaboard)
- Requirement that petitioners collect and submit prejudicial information (thereby undermining arguments in favor of listing the species)
- Requirement that petitioners only seek listing of one species at a time (no more efficient, multi-species petitions – even when multiple species face the same threats, at the same time, in the same area)
- Requirement that petitioners provide “substantial information” at the outset to show that a species should be listed (with the exorbitant cost associated with gathering scientific data and purchasing supporting scientific articles, this would deprive many citizens the opportunity to file for species protection; citizen petitions are a vital component of species protection under the ESA)
While NMFS and FWS claim that the proposed changes will promote efficiency in the listing process, SSL firmly believes that these changes will not only ultimately result in greater inefficiency but also significantly chill citizen-initiated petitions to the detriment of wildlife. If changes are necessary to enhance the efficiency of the listing process, such changes ought to be outcome-neutral and based on a fair organizing principal. Here, the changes cater almost exclusively to interests opposed to additional listings and habitat designations. In short, far fewer species will be listed, and far more will be lost.
SSL is pushing back. In our comments to FWS and NMFS, we described the statutory and prudential flaws that run throughout the proposed amendments to the petition process.
If congressional intent to protect species from extinction at any cost is to be respected, changes that deter petitions should be off the table altogether. Any other result is contrary to the ESA’s purpose and legacy.
Help fund our work to improve the ESA and to protect vulnerable species.
Nota: Una traducción al español estará disponible muy pronto.