You know environmental lawsuits have
spun out of control when barge activity on the Missouri River
must come to a halt to preserve habitat for the nesting piping
The ruling follows a lawsuit filed by the special interest group American Rivers and nine allies that sued the Army Corps under the Endangered Species Act (ESA) for failing to reduce water levels to protect the habitat of endangered species.3
Judge Gladys Kessler, who wrote last month's original court decision, concedes significant human sacrifice: "Navigation will be interrupted for the remainder of the summer and barge companies will lose revenues. Water quality may be affected and there may well be higher water purification costs. Hydroelectric resources will be affected, and consumers may suffer higher costs."4
But these hardships, in Judge Kessler's view, can't compete with the species at issue because, in her words, "there is no dollar value that can be placed on the extinction of an animal species - the loss is to our planet, our children and future generations."5 That is to say: the needs of a sturgeon are naturally placed so far above human needs that cost assessments should not even be considered.
Sadly, nonsensical litigation such as
this is not rare. Rather, it is an epidemic that not only compromises
human needs but, ironically, compromises the protection of endangered
species. ESA lawsuits are so routine that U.S. Fish and Wildlife
Service (FWS) staff spend more time and dollars handling litigation
than saving endangered species.6
The FWS reports that as much as two-thirds of its budget for
placing endangered species on the protection list is consumed
fulfilling court orders and settlement agreements. Its $6 million
budget for designating critical habitat was depleted by the end
of July.7 FWS officials are asking Congress to authorize
funds from other endangered species protection programs so they
can complete pending court orders.
Judges' decisions, constrained by the rigid language of the ESA, also muddle priorities and discourage scientific determinations. Nowhere is this more true than lawsuits over "critical habitat designations" - a contentious mandate under ESA that frequently requires the protection of an endangered species' habitat over protection of the endangered species. In fact, one court ruled that FWS must designate critical habitat for endangered species even if it is considered a lower priority than other protection activities.9
Small wonder that the National Research Council has concluded, "designation of critical habitat is often controversial and arduous, delaying or preventing the protection it was intended to afford."10 Yet the majority of environmental civil cases filed are over designations, and in most cases, over missed designation deadlines due to resource constraints.11
Environmental groups fuel the judicial absurdity and artfully use the courts to drive their political agenda. They also know it pays to take an agency to court. As required by law, attorney fees are funded by taxpayer dollars every time a plaintiff wins a case. That can mean big bucks. Data from the U.S. Department of Justice, as reported by The Sacramento Bee, shows that environmental lawyers typically charge $150 to $350 an hour. In the 1990s, the average award was $70,000, though tax-financed awards of $100,000-plus are not uncommon.12
Congress must put an end to this litigation
rage. Without needed reforms, frivolous litigation will continue
to jumble priorities, sacrificing methods that truly protect
species and wildlife.
Dana Joel Gattuso is a senior
fellow of The National Center for Public Policy Research, a Washington,
D.C. think tank. Comments may be sent to firstname.lastname@example.org.
1 Damon Franz, "Minnesota
Court Upholds Low-Flow Ruling," Greenwire, August 5, 2003.