I thank the Committee for this opportunity to testify regarding the implementation of the listing provisions of the Endangered Species Act. In particular, as lead counsel for plaintiffs in Fund for Animals et al. v. Lujan, Civ. No. 92-800 (D.D.C.) -- which resulted in a settlement agreement with the Bush Administration to expedite listing decisions for more than 400 animal and plant species -- I have been asked to address (1) why this lawsuit was filed in the first instance and what the settlement required of the government; and (2) how the recent moratorium on ESA listings, and the recent resumption of such listings, will affect the settlement. I will discuss each of those points in turn, and then offer some general recommendations, based on our experience with the settlement, regarding the process for listing endangered and threatened species.
One of the principal problems plaguing implementation of the ESA since its enactment has been the large backlog of "candidate" species awaiting a final determination by the Fish and Wildlife Service ("FWS") as to whether such species must be listed as endangered or threatened.[1] Prompt decisions on the legal status of "candidates" -- i.e., species which FWS biologists have recognized as potentially warranting protection under the ESA -- is essential to furthering the purposes of the Act, and is also of benefit to all persons whose interests may be affected by such decisions.
On the one hand, if a candidate species does indeed warrant listing because it is biologically endangered or threatened, then prompt protection under the Act before it has reached a critical, "emergency room" condition affords federal and state decision-makers much more regulatory flexibility in accomplishing the conservation and recovery of the species. Conversely if (as has often been the case) a "candidate" species is allowed to deteriorate to the point where it is on the brink of extinction before it is listed, then the options for conserving that species will be severely limited (if they exist at all). At that point, the potential for land use and resource conflicts is much higher than if concerted efforts had been made to conserve the species at an earlier stage.[2]
On the other hand, if the FWS ultimately concludes that a candidate animal or plant does not warrant listing under the Act -- e.g., because it is more plentiful than previously suspected, or because it does not actually qualify as a "species" -- then it is equally obvious why prompt decisionmaking is of benefit to all concerned. Simply put, the rapid resolution of the status of candidates means a shorter time frame in which all interested parties must be left in a state of regulatory limbo, uncertain as to whether the federal government will indeed list the species. Unfortunately, for much of the history of the ESA, candidate species -- and hence those state governments, private organizations, and individuals with an interest in them -- have been left in this regulatory netherworld for unconscionable periods of time.
During the Bush Administration, the Interior Department's Inspector General, in a September 1990 audit report, concluded that "[t]imely progress has not been made toward officially listing and protecting endangered and threatened plant and animal species." According to that report, there were approximately 600 domestic species which FWS biologists had classified as "Category 1" species -- those species for which Service biologists believed that they already had adequate information to proceed with listing, but which had not yet been the subject of formal listing proposals. Of such species awaiting listing decisions, over 200 were considered by the FWS to be facing both an "imminent" and "high" threat of extinction.
The DOI Inspector General also predicted that, at the rate of listing then in effect, it would have taken the FWS between 38 and 48 years for the agency to make listing decisions on just those species which FWS biologists, at that time, suspected as being biologically endangered or threatened with extinction -- i.e., without even taking into account any additional species that the FWS might thereafter determine required listing.
The Inspector General further found that dozens of species had already become extinct before they could even be listed, and that the FWS's ongoing delay in making listing decisions was "likely [to] result in additional extinction of certain plants and animals" in the future.
Compounding the problems identified by the Inspector General's report, in January 1992, President Bush issued a moratorium on the promulgation of proposed or final regulations. As a result of that moratorium, the listing of endangered and threatened species essentially ground to a halt for four months. Eventually, the Administration concluded that its regulatory moratorium did not, and could not legally, apply to the listing of endangered and threatened species, but the rate of listing decisions continued to proceed at a snail's pace, thus exacerbating the very problems decried by the Interior Department's own Inspector General.
It was against this backdrop that The Fund for Animals, Defenders of Wildlife, the Biodiversity Legal Foundation, and grassroots conservationists from around the country, filed their Complaint in federal district court in Washington in May 1992. Shortly after the lawsuit was filed, the parties began intensive settlement negotiations, and an agreement was reached in December 1992.
The heart of the agreement was a commitment by the FWS to, by September 1996, propose for listing -- or make final, judicially-reviewable decisions not to list -- all of the "Category 1" species existing at the time the parties entered into the agreement. The parties prepared as one of the Exhibits to the settlement (known in the settlement parlance as "Exhibit A") a list of all of the species which FWS biologists agreed were Category 1 species -- approximately 443 animal and plant species in all.
The Service's obligation to make decisions on all of the Category 1 species in four years was not pulled out of thin air. In testimony delivered to the Senate Subcommittee on Environmental Protection, the Bush Administration's FWS Director, John Turner, had committed that the Category 1 list of species would be "completely worked" by no later than 1996. The parties essentially took the Bush Administration's own commitment to Congress and embodied it in a formal, legally binding agreement.
While the FWS agreed to an overall deadline by when it would resolve its backlog of candidate species, the parties did not, within that general time frame, set forth any schedule for the agency to make decisions on specific species. Instead, the parties contemplated that the FWS would be free to continue to apply its longstanding listing priority guidance, under which it is supposed to prioritize listing decisions based on the degree and magnitude of the threats facing the particular species. See 48 Fed. Reg. 43098 (1983). The parties also agreed on a detailed "substitution" scheme, under which the FWS could replace Exhibit A species with new candidates of higher priority, so long as the agency was making adequate progress in proposing a total number of species for endangered or threatened status.
The settlement accomplished other reforms in the listing system as well.[3] For example, the FWS made an explicit commitment to pursue a "multi-species, ecosystem approach" to its listing responsibilities. Thus, the agreement embodied the Interior Department's recognition that an ecosystem-based approach to listing "will assist [federal officials] in better analyzing the common nature and magnitude of threats facing ecosystems, help them in understanding the relationships among imperilled species in ecosystems, and be more cost-effective than a species-by-species approach to listing responsibilities."
When the settlement was signed and filed, it was applauded both by the conservation community and the Bush Administration. In particular, the Interior Department issued a news release (Attachment 2), in which it explained that the settlement's emphasis on an ecosystem-based approach to listing would be "more cost-effective," and would allow the Service to "focus on the needs of plant and animal communities as a whole, not individually." The Service also stressed that the "agreement supports the Service's existing priority system which ranks at-risk, candidate species based on the degree of threat faced by each candidate," and FWS Director Turner praised the agreement as "essentially giv[ing] a seal of approval to the Service's existing method for setting priorities for these species in need of protection."
For the first several years following filing of the settlement, plaintiffs received annual reports (as required by the agreement) stating that the FWS was complying, and fully intended to continue to comply, with the obligations imposed by the agreement. For example, in February 1995 -- just several months before the Congressional moratorium on listing was imposed in April of that year -- plaintiffs received a report from FWS Deputy Director Richard Smith which stated that "we currently expect to meet all of the obligations of this settlement agreement in the allotted time frames." The Service further reported that the Settlement had assisted it in taking a more efficient, ecosystem-based approach to its listing responsibilities, while still allowing it to prioritize listing decisions according to biological needs.
A little more than one year later, the situation has completely deteriorated. Although less than 100 candidate species now remain for resolution under the agreement, the Service has made it clear that it will not meet the September 1996 deadline. Moreover, it has offered plaintiffs no proposal for even modifying the schedule so that the status of the remaining candidates subject to the agreement -- which have been in regulatory limbo now for many years -- can finally be determined according to a date certain.
There are several reasons why the Agreement -- once touted as a major breakthrough in implementation of the ESA -- has now completely broken down. Some of these reasons are obvious, others are less so.
As everyone knows, the Congressional moratorium on final listing decisions, and the subsequent battles over the Interior Department's Fiscal Year 1996 budget, decimated the Service's entire listing program. As described by the Service itself in March 1996 -- shortly before the budget situation was finally resolved and funding was restored -- "the net effect of these legislative and administrative actions is that the Service's listing program has been essentially shut down." 48 Fed. Reg. 9651.
The Congressional demolition of the listing program was one of the most shortsighted, mean-spirited, and counterproductive legislative actions in recent years. It accomplished absolutely nothing -- even from the standpoint of those who believe (wrongly) that endangered species conservation has stymied economic development. As suggested above, by simply delaying decisions on species protection, the moratorium merely ensured that species eventually in need of listing would be in even worse shape -- and hence require even greater regulatory attention -- than if protection had been afforded at an earlier juncture.
At the same time, the entire breakdown in the listing process cannot be laid at the door step of Congress. For several reasons, the Administration's wounds are, to a considerable degree, self-inflicted. To begin with, while it deserves credit for ultimately insisting on the termination of the moratorium (after sufficient public pressure had been generated by conservation groups), the Administration failed to take a high-profile stand against the moratorium at earlier legislative stages when it could have been removed or avoided altogether.
Moreover, the Administration itself has greatly politicized the listing process -- by allowing political considerations to dominate individual listing decisions, by ignoring the scientific conclusions of its own field biologists, and by adopting general policies which are plainly reflective of political rather than biological imperatives. Sadly, rather than deflect Congressional criticism of the ESA -- as some Administration officials evidently anticipated -- these actions have merely served to reinforce the perception that federal protection of an imperilled species is a horrible evil to be avoided at all costs.
As anyone who closely monitors the ESA listing process can attest, examples of listing decisions which are flagrantly motivated by political factors abound. Some of the most egregious cases include:
When the listing proposal for the species was withdrawn, FWS Director Beattie stated in a press release that "if Alabama sturgeon are found, the Endangered Species Act provides the Service the flexibility to list them on an emergency basis." However, although still another member of the species was caught in April 1995 on the Alabama River, the Service has still refused to protect this desperately endangered species under the Act.
To make matters worse, the rationale proffered for overriding the conclusions of the biologists -- that Lynx are plentiful in Canada, although they are facing grave threats in the U.S. portion of their range -- could be used to strip grizzly bears, gray wolves, and other high-profile species of the protections of the Act.
For example, attached to this testimony is an extraordinary "briefing" document which lists the "pros" and "cons" of not listing the wolf (Attachment 3). One of the "cons" is that failing to protect the species is "[n]ot consistent with our analysis of the 5 factors in the listing regulations" -- i.e., that listing would be required by the law. On the "pro" side of the balance is that refusing to protect the species would be "least controversial with agencies, industry, and the Alaskan delegation to Congress."
Predictably, as has now become commonplace, the "least controversial," politically correct decision is the one that took precedence over the legally and biologically correct one.
In addition to these and many more examples of politically-based listing decisions, the Service has issued broad "policy" pronouncements that also set back the cause of endangered species conservation and appear to be motivated purely by political considerations. For instance, in July 1995, the Service literally removed nearly 4,000 species from status as "candidates" by simply wiping out what was known as "Category 2" of its candidate list.
For more than fifteen years, this category had been employed by Service biologists to monitor the status of species that might eventually warrant listing, but for which more information-gathering was necessary. In other words, as the FWS recognized in its own published "notices of review," these were precisely the kinds of species as to which early warning signs of trouble might help avert the need for listing -- and hence invocation of full federal jurisdiction -- down the road.
The Service has never offered any biological justification for its abrupt elimination of Category 2. Rather, the agency conceded that it was merely responding to the misconception held by some members of the public that the thousands of category 2 species would invariably make their way onto the endangered species list within the next several years. Yet, instead of figuring out how to correct that misimpression while still carrying out the vital functions performed by the maintenance of "category 2," the FWS instead opted simply to sweep literally thousands of candidate species under the bureaucratic rug.
Similarly, in February 1996, the Service issued a new policy adopting a far more restrictive definition of "distinct population segment[s]" that may be listed under the Act. 61 Fed. Reg. 4722. The policy provides that "international boundaries" -- e.g., between Canada and the United States -- ordinarily will not be employed to determine what is a "distinct population segment" for purposes of invoking the Act's safeguards. As long-time FWS biologists have pointed out, however, if this policy (which has already been invoked to deny protection to the U.S. populations of the Lynx, Wolverine, and other species which are disappearing in the U.S.) had been adopted following ESA enactment, the FWS might never have listed the contiguous U.S. populations of the grizzly bear, gray wolf, woodland caribou, bald eagle, and brown pelican. In short, in the form of this little-noticed policy, the Service has set the stage for a drastic curtailment in the coverage of the Act.
Most recently, on May 16, 1996, the FWS announced its "guidance" on how it intends to spend the $4 million finally made available to it by Congress for listing actions during the remainder of Fiscal Year 1996. See 61 Fed. Reg. 24725. This "guidance" declares that the Service's 1983 priority guidelines -- which, as noted above, compel the agency to prioritize decisions according to the level of threats confronting species -- are no longer "sufficient" because of the "present backlog of proposed species" caused by the moratorium.
Accordingly, the guidance, in effect, indefinitely substitutes a new set of priorities for the purely biologically based one which has existed for thirteen years and is widely regarded as one of the crucial cornerstones of the Act. In essence, the guidance provides that, other than any emergency listings,[4] the agency will spend all of its appropriated funds making final decisions on the 243 species for which the agency issued proposed rules but could not take final action while the moratorium was in effect.
Hence, under this guidance, the Service will spend no time and resources -- zero -- through the remainder of Fiscal Year 1996 on any listing activity other than finalization of proposed rules: it will not move forward on publishing a proposed rule for a single additional candidate subject to the multi-species settlement, or for that matter, any other candidate; it will not even respond substantively to citizen petitions for the listing of any new species (except, perhaps, for those seeking emergency listing); and it will not devote any time and resources to the designation of critical habitat.
The Service makes no bones about the fact that this new "guidance" -- which essentially constitutes a self-imposed "moratorium" on most actions required by section 4 of the ESA -- represents a blatant departure from the agency's past emphasis on biological priorities in the expenditure of listing resources. Indeed, the Service flatly admits that, "even for [candidate] species facing imminent, high-magnitude threats," such species will be relegated to the back burner until the Service can plow through the 243 species awaiting final listing decisions -- even if those species face much lower threats and would not be measurably harmed by a brief delay in final listing.
The Service's asserted rationale for this draconian policy is that, since "final listings provide substantive protection, the Service is of the strong belief that this activity should take precedence over new proposed listings," petition findings, and other listing-related activities required by section 4 of the ESA which will provide only "limited conservation benefits." 61 Fed. Reg. 24727. That assertion has a superficial ring of plausibility but, on closer inspection, it makes no sense.
As a practical matter, it is our understanding that there are regions -- including the New England region -- in which there are few, if any, proposals awaiting final rulemaking. Yet, under the FWS's policy, biologists in those regions are nevertheless prohibited from working on other listing activities so long as other regional offices are still clearing off the backlog of 243 species subject to proposals. This means that the guidance will have a disproportionate effect on states like California, where many of the species subject to present proposals exist.[5]
Thus, whatever the theoretical merits of the Service's emphasis on finalizing proposed listings, there is no sound basis for applying it to regions which do not have large backlogs of proposals. Accordingly, we respectfully suggest that the Administration be asked whether this is indeed the case and, if so, why FWS biologists in New England should do nothing to implement section 4 of the ESA, while their counterparts in California work feverishly on pending proposals.
Moreover, there is no legal or rational basis to the Service's policy pronouncement that issuing final listing rules should invariably -- i.e., regardless of biological needs -- be placed on a higher priority tier than the development of proposed rules for candidates species or responses to new petitions. Obviously, if a particular candidate or petitioned species faces a far graver threat of extinction than a species already subject to a proposal, it is far more important that the candidate at least begin the process leading to ESA protection. In addition, a proposed rule at least brings the species some consideration in the section 7 consultation process.
Yet, under the Service's policy, even where all FWS biologists agree that a particular candidate, or a species subject to a new petition, should take precedence under the agency's longstanding priority scheme, the biologists are foreclosed from spending any time or effort on that species until every single one of the 243 proposals is subject to a final rule. Especially with regard to species that have been languishing in candidate status for many years -- such as the nearly 100 species still subject to the 1992 settlement agreement -- this policy makes no sense whatsoever and subverts the Service's purported commitment to a listing process based on biological priorities.
Indeed, as demonstrated by Attachment 4, many of the remaining settlement species are considered by FWS biologists to be extremely high priorities for listing -- because of imminent and serious threats to their continued existence -- yet under the May 16 policy guidance, no effort will be made to protect any of them for the foreseeable future. Such species include the Mariana Fruit Bat, of which only a maximum of 200 individuals remain; the Northern Idaho Ground Squirrel, whose population is estimated at 600-800 individuals and declining; and the Riparian Brush Rabbit, which has a single population of as few as 170 individuals in Caswell Memorial Park in California yet is presently being hunted. The Service has no legitimate justification for not spending at least some of its FY l996 appropriation on these and other desperately imperilled candidate species, whose numbers may already be lower than the minimum considered necessary by biologists to sustain a species in the wild.[6]
In addition, this self-imposed moratorium undermines the settlement agreement's emphasis on a multi-species, ecosystem approach to listing activities. Indeed, even if a FWS biologist working on a final rule encounters several candidates which are in the same ecosystem, and face exactly the same threats to their survival, he or she must ignore the plight of the similarly situated candidates and instead revert to the single species approach to listing that the Service previously denounced.
In short, the net effect of the moratorium, and the Service's unfortunate reaction to it, is a retreat to the intolerable state of affairs which existed prior to the settlement agreement -- a situation in which the number of candidates awaiting listing decisions multiplies exponentially; imperilled species remain candidates for years or decades and are close to extinction by the time they receive federal protection; the Service backs away from its commitment to an ecosystem-based approach to listing; and interested parties are left in regulatory limbo while they await word from the federal government as to whether it will move forward with a listing proposal.
If Congress wants a listing process that is efficient, apolitical, and biologically sound, it must do the following:
As suggested above, instead of making the listing process more complex and costly, all efforts should be devoted to making it more streamlined and efficient. As the National Academy of Scientists' expert panel concluded in its recent, Congressionally-authorized report, Science and the Endangered Species Act, we are presently in the midst of a "major episode of biological extinction," and the "present cause of extinction is a single biological species that has become so successful and so exploitative that it threatens to destroy the very capital that is necessary for its own long-term survival."
In the face of this extinction crisis, the last thing that Congress should contemplate doing is making the federal protection of endangered and threatened species an even more arduous, difficult, and costly process than it has already become.
Eric R. Glitzenstein
Meyer & Glitzenstein
Suite 450
1601 Connecticut Ave., N.W.
Washington, D.C. 20016
(202) 588-5206