Key Environmental Law Ever-Tangled in Litigation

By Bob Berwyn, 3-15-06

The American Bar Association's environmental law conference at Keystone, Colorado, drew several hundred attorneys, and it may take all of them – and then some – to deal with the ever-growing mountain of legal battles surrounding the Endangered Species Act (ESA).

"It's death by a 1,000 cuts," said Eileen Sobeck, a U.S. Department of Justice attorney who handles many endangered species cases for the Department of the Interior. "The Department of Justice and the Department of Interior can't handle the volume. There are 30 challenges to critical habitat pending (in court) in California alone," Sobeck said last weekend during a panel discussion on the big daddy of environmental laws.

While the discussions didn't focus on the Rocky Mountain region, the implications are obvious. Critical habitat designations and other management issues associated with far-ranging species like Canada lynx have the potential to affect huge amounts of territory, both on public and private lands. Given the rapid pace of exurban development in the region, coupled with the accelerating global wave of species extinctions, it's likely that the wrestling matches over the act and its application will continue for a long time to come.

The U.S. Fish and Wildlife Service, charged with managing rare and threatened plants and critters, can't seem to win for losing. Some critical habitat cases are in their third or fourth round of litigation, said panelist Michael Senatore, with the Washington, D.C.-based Defenders of Wildlife.

Sometimes, as was recently the case with Canada lynx, the agency is challenged when it doesn't designate habitat quickly enough. When it does come out with a critical habitat delineation, challenges frequently come from both sides.

For example, when the Fish and Wildlife Service finally did propose a critical habitat designation for lynx, it didn't include any territory in Colorado, where a state-led re-introduction effort has established a tentative population of the secretive cats. That didn't sit well with Senatore's group, which wants the agency to protect the state's lynx with a critical habitat designation.

In other cases, the challenges come from industry and development interests, who also frequently ask the courts to decide whether the agency made the right designation. All in all, it's a big, tangled legal mess, and there's no end in sight, according to the panelists, who said ESA reform was unlikely during the current session of Congress, based on the existing political climate.

Part of the discussion focused on how and whether proposed changes to the ESA might affect issues that have been under litigation. One bill, introduced in the House by California Republican Richard Pombo, would gut several essential provisions of the law, according to most conservation groups.

"It's an exceedingly extreme bill," said Senatore. "It's probably dead on arrival in the Senate. They've seen it for what it is," said Senatore, referring to moderate members of the Senate's Environment and Public Works Committee.

Needed most is legislative language to address critical habitat designations, he said, explaining that multiple rounds of litigation waste time and money without doing anything to protect endangered species. Also needed are more conservation incentives for private landowners, he added.

But even if Congress does manage to get its act together and come up with a bipartisan, compromise approach to amending the law, it won't end the legal battles. Any changes to the ESA would create new areas for litigation, Sobeck concluded.