ESA ruling: More sound than fury
by Heather AbelLawyers, get ready: People can use the Endangered Species Act to sue the federal government for protecting species too much, not just too little, ruled the U.S. Supreme Court March 19. Now, ranchers, farmers and developers may be encouraged to do what environmentalists have been doing for two decades - demand their day in court.
The case that went to the nation's highest court began during a 1992 drought. The federal government reduced water flows from two Oregon reservoirs to boost stream levels for two endangered fish species; Oregon ranchers sued the federal government for not considering their losses. Two years ago, an appeals court ruled that the ranchers had no legal right to sue as citizens under the Endangered Species Act because they were not defending a species. The Supreme Court unanimously reversed this decision.
At first glance, this hardly seems revolutionary. "In the history of the act, industry groups have been given access," says John Kostyak of the National Wildlife Federation. "The decision that denied this group access is a quirky one."
But receiving legal standing from the Supreme Court is key, says Perry Pendley of the Denver-based Mountain States Legal Foundation. "Look how tough it is for private litigants - non-environmentalists - to get into court and raise a fundamental question: Did the agency do the right thing?"
Not surprisingly, private-property advocates like Pendley are elated, yet many environmentalists have responded almost as positively. "It means something very simple and true that all environmentalists will agree with - all Americans have access to the courts," says Bill Snape of Defenders of Wildlife.
This populist sentiment has pragmatic roots. Environmentalists hope that the decision will simplify their struggle to get more lawsuits. "The wording of the Supreme Court decision is so strong, so wide, it really opens up environmental doors to sue on other statutes," says Snape. "This is almost a revolution."
Legal standing isn't always such a muddle. If a pedestrian is flattened by a speeding car, the victim clearly has the right to sue the speedster. But since the early "70s, when citizens began suing the federal government to enforce environmental statutes, the courts have had to decide who is an injured party and eligible to sue. Over the past 20 years, the courts have ruled that people who can prove they were injured by underprotection of the Endangered Species Act - those whose aesthetic views or recreating opportunities were harmed - may file citizen suits.
Proving injury, however, remains difficult. In two recent cases, the Supreme Court told environmentalists that they lacked standing. Now, by granting standing to people injured by overprotection of the act, the court is widening its definition of injury, perhaps aiding environmentalists.
Some environmentalists find it ironic that their access to court may have been expanded by corporate interests. "The same groups that are really celebrating the decision have spent millions of dollars in Congress to limit the environmentalists' day in court," says Heather Weiner of the Sierra Club Legal Defense Fund. She cites the salvage logging rider, which barred environmentalists from suing, as an example.
Pendley says that the decision will not boost the number of lawsuits. Weiner predicts it will have a "catalytic effect," spurring a slew of lawsuits from private property groups. If it does, Keiran Suckling of the Southwest Center for Biological Diversity is not worried. He says he would be happily surprised if anyone could prove that the government protected species too much.
"If they can prove economic harm, that only gets them in the door. Then they have to prove bad science," he says. "Environmentalists have been extremely successful proving in court that the Fish and Wildlife Service does everything possible to minimize protection."
Heather Abel is a researcher and reporter for HCN. © High Country News