ENVIRONMENTAL LEGAL BLOGS

TO AL GORE: SORRY TO BURST YOU'RE BUBBLE, BUT MAYBE WE'RE NOT DOOMED AFTER ALL

  AP on Yahoo! News reports:

A tiny green butterfly not seen in the United States in more than 70 years likes the new butterfly garden at Falcon State Park, experts said.

Berry Nall of Falcon Heights took a photograph of his find on Monday, posted it on his Web site and asked members of an online mailing list to help him identify it.

"I tried to get as many pictures as I could, but it took off," Nall said.

The Texas Parks and Wildlife Department informed him that he had taken a picture of a telea hairstreak butterfly.

     Just another illustration that Nature knows a lot more than we do-- I'm sure that the mainstream media will be headlining this as evidence that maybe humans are not destroying the planet.  Do me a favor--when you see CBSNBCABCMSNBCCNN reporting on this story, let me know.  Such an event would be even rarer than finding the telea hairstreak butterfly.

FEDERAL JUDGE EFFECTIVELY SLASHES CALIFORNIA'S WATER SUPPLY

     On Friday, August 31, a federal court Judge in Fresno accepted the argument of environmentalists that the endangered species (the Delta smelt) was being killed off by the huge pumps used by the State Water Project and the federal Central Valley Project.  The Judge therefore used the federal Endangered Species Act to issue a ruling that, in effect, may at least on a temporary basis require up to a1/3^rd reduction in the amount of water cycled by the pumps.  As quoted in the Contra Costa Times, Association of California Water Agencies’ Executive Director Tim Quinnsaid of the ruling: "These reductions represent the single largest court-ordered redirection of water in state history."             

    

     This ruling is not likely to have an impact for the remainder of this year.  However, next year cities relying on Delta water (including Los Angeles and other cities in Southern California) may have to institute water rationing and/or substantially increase pricing.  If such rationing/higher pricing occurs, both residences and business will be affected.

     The ruling is also likely to affect the amount of irrigation water available to farmers in the State, which in turn will affect the food supply.

     So, we know where our priorities lie-

      

No

                  

Yes

US SUPREME COURT IN KEY ENDANGERED SPECIES RULING-NATIONAL ASSOCIATION OF HOME BUILDERS ET AL V DEFENDERS OF WILDLIFE ET AL

     In a major 5-4 ruling announced today, the Court ruled that federal delegation of water pollution authority to States under the Clean Water Act is governed solely by the criteria in Section 402 of the statute and not by the added, extra-statutory consideration of the delegation's potential effect on endangered species.  While this case has garnered lots of attention, the best summary of the issues I have seen today is on the website of Sen. James Inhofe (R.-Oklahoma).  While Sen. Inhofe has strong views which side with the Court majority, his website's description of the issues in the case is factual and is set forth here (also see the link above to his site, which provides his favorable opinion of the ruling):

Under section 402(b) of the Clean Water Act, EPA is required to transfer permitting authority to a state if that state meets nine statutory requirements.  In the case, Defenders of Wildlife argued that compliance with section 7(a)(2) of the Endangered Species Act, effectively adds a 10^th statutory requirement, thus preventing the state of Arizona from having the authority to manage of its own water pollution control program.  Section 7(a)(2) requires federal agencies to consult the Department of Commerce or the Department of Interior to assure that a proposed agency action is unlikely to jeopardize an endangered or threatened species. 

The Court held that this requirement applies only to discretionary actions by the agencies and because “the transfer of National Pollutant Discharge Elimination System (NPDES) permitting authority is not discretionary, but rather is mandated once a State has met the criteria set forth in section 402(b) of the Clean Water Act, it follows that a transfer of NPDES permitting authority does not trigger section 7(a)(2)’s consultation and no-jeopardy requirements.” 

The Justices went on to note that, “[r]ead broadly, the Ninth Circuit’s construction would also partially override every federal statute mandating agency action by subjecting such action to the further condition that it not jeopardize listed species.”

ENDANGERED SPECIES ACT RULING TESTS COMMON SENSE

     The federal Judge's ruling in Michigan yesterday invalidating the National Security Agency's eavesdropping program will likely be overturned rapidly, before another federal Judge's ruling from Arkansas is tested.   That ruling, as commented on in the August 3, 2006 edition of The Waterbury (Connecticut) Republican-American is equally noteworthy and should be itself controversial, however:

The ivory-billed woodpecker went the way of the dodo in the 1940s. But in 2004, a kayaker claimed he saw one not far from where the U.S. Army Corps of Engineers was about to begin the irrigation project. The sighting has never been confirmed or repeated, but that didn't stop environmental groups from suing to stop the corps from cutting down trees in which the woodpecker might have lived were it not extinct.

U.S. District Judge William Wilson, a Clinton appointee, has sided with the greens, essentially saying the extinct woodpecker enjoys the protections of the Endangered Species Act. His ruling came despite a costly, taxpayer-funded study that determined the project would not cause significant damage to the extinct bird's habitat.

GOOD NEWS ON THE BALD EAGLE

     In the 1960's, there were less than 500 nesting pair of our National symbol; now, there are over 7,000.  According to Reuters in a story published on the Environmental News Network website on February 15, 2006, the federal Fish and Wildlife Service is responding to these numbers by considering the delisting of the bald eagle as an endangered species:

Citing a dramatic increase in the number of bald eagles, the head of the U.S. Fish and Wildlife Service announced a plan Monday that could remove the national symbol from protections under the federal Endangered Species Act.

"The recovery of the bald eagle is a great national success story," Dale Hall told reporters, signaling the agency's plan to reopen public comment on the delisting.

     Just as amazing as the bald eagle's comeback is the Reuters report of the reaction of environmentalists to the proposed delisting:

Conservationists hailed the eagle's comeback and said they generally supported the delisting.

"The return of our national symbol is a victory for wildlife, a victory for conservation and a victory for the Endangered Species Act," said Doug Inkley, senior science officer for the National Wildlife Federation.

     Since so many of the environmental debates (e.g., climate change; wetlands preservation; toxic mold) taking place have no consensus for resolution of the problem (and sometimes no consensus as to whether or not a problem even exists), we should all pause to take satisfaction in a rare instance of apparently universal agreement on the success story concerning our Nation's symbol.

PACIFIC LEGAL FOUNDATION SETTLEMENT WITH FISH AND WILDLIFE SERVICE

     Earlier this year, Pacific Legal Foundation sued the U.S. Fish and Wildlife Service to force it to review plants and species listed as endangered or threatened under the Endangered Species Act.  PLF contended, apparently correctly, that the Service had not been following the mandate of the ESA to the effect that listed plants/species should be reviewed every 5 years to see if protection were still needed: "The service acknowledged it had neglected the reviews, and it agreed to a schedule for their completion." U.S. to review 194 species on endangered list , San Francisco Chronicle, September 23, 2005.

     PLF commented on the settlement, as follows (quotes below taken from the SF Chronicle article):

"Whenever a species is listed, it has the potential for restrictions that can be very limiting on the property owner, that can delay property use," said Rob Rivett, a principal attorney for the foundation. "It isn't just about homes. Schools are another example."

Rivett noted that the new UC Merced campus is subjected to significant construction restrictions and is required to fund habitat mitigation efforts because of tiny crustaceans called fairy shrimp that inhabit vernal pools in the area.

Rivett said he believed fairy shrimp might be taken off the endangered species list once reviews were completed.

"Contrary to what was once thought, we now know they are spread over a very broad area of land, from Southern California to southern Oregon," he said.

     The Chronicle article suggests that even environmentalists are not unhappy with the outcome.  Kieran Suckling, of the Center for Biological Diversity, commented:

"It was a bit of a crackpot suit, but the settlement isn't bad, and we agreed to it," said Suckling. "Some important data may come out of it, and the service is being given enough time so they won't be forced to rush their work. Unfortunately, it will cost the taxpayers about $1 million -- money that would have been better spent on habitat acquisition and recovery."

     Dear readers, please explain how the above quote makes sense.  "It was a bit of a crackpot lawsuit" to require the Service to comply with the law?  It is "unfortunate" that the Service has to use resources to achieve such compliance, instead of applying resources to "habitat acquisition and recovery"--at least some of which acquisition and recovery may not even be needed after appropriate 5-year reviews?

     Go figure.

HOUSE OF REPRESENTATIVES' REVISIONS TO ENDANGERED SPECIES ACT--TWO COMPETING VIEWS

     On a vote of 229-193 today, the House passed an overhaul of the Endangered Species Act.  Reading the AP report of the vote, one gets the impression that such passage is a major victory for the property-rights movement:

The House on Thursday passed legislation that could greatly expand private property rights under the environmental law that is credited with helping keep the bald eagle from extinction but also has provoked bitter fighting.

***

The bill would require the government to compensate property owners if steps to protect species thwarted development plans. It also would make political appointees responsible for some scientific determinations and would stop the government from designating "critical habitat," which limits development.

     However, blogger James Buchal disagrees:

Nothing is all good or all bad, and H.R. 3824, the latest attempt to reform the Endangered Species Act introduced this week by Representatives Pombo (R-CA), Greg Walden (R-OR) and others has positive features.  But it makes the one provision in the Endangered Species Act that looms above all others in the carnage it has caused throughout the West worse:  Section 7.

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Section 7 of the Act declares that federal agencies must avoid taking action that would "jeopardize the continued existence of listed species".  Lawsuits filed under section 7 are responsible for exterminating small timber operators (owls), Klamath Basin farmers (suckers), doubling electricity rates in the Pacific Northwest (salmon), and creating countless other poster children for Endangered Species Act reform....

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Pombo's bill changes section 7 by adding a definition of "jeopardize the continued existence of" to the Act:  "The action reasonably would be expected to significantly impede, directly or indirectly, the conservation in the long-term of the species in the wild".  This is a radical departure from the simple concept of not wiping species off the face of the earth.  Now any and all federal agency actions must cease if they would "significantly impede" "conservation", even "indirectly". 

***

If the Pombo bill passes, the question will no longer be whether federal agencies threaten to exterminate an entire species; the question will be whether or not what they do is would "directly or indirectly" impede the conservation programs of the fish and wildlife agencies.  In a context where those agencies are infested with biologists eager to spend hundreds of thousands of dollars to save a single fish or rodent, nearly any use of public resources (other than paying biologists) can and will be characterized as "significantly impeding" conservation. 

The inevitable result of Pombo's bill is that environmentalists will have a much more powerful tool for shutting down any federal agency action with which they disagree.

(emphasis in original)

    It's like 2 witnesses to the scene of an accident who tell two different stories of what they have seen.  In any event, these varying accounts of the effect of the overhaul may not in the end matter; while President Bush has indicated he would sign the legislation if it reaches his desk, the Senate appears more evenly divided over whether that body will join the House in enacting the legislation.