Statement of John D. Echeverria, Director, Environmental Policy Project, Georgetown University Law School
My name is John D. Echeverria. I am the Director of the Environmental Policy Project and an Adjunct Professor at Georgetown University Law Center. The mission of the Environmental Policy Project is to conduct research and education on legal and policy issues relating to protection of the environment and conservation of natural resources. I appreciate the opportunity to testify today.
In my testimony I will address three issues: (1) the proposal in the administration=s recent budget submission to Congress to effectively bar citizens from going to court to enforce certain provisions of the Endangered Species Act (ESA); (2) some of the likely difficulties and counter-productive consequences of seeking to advance species conservation goals through taxpayer-funded Aincentive@ programs; and (3) the value of critical habitat designations in furthering the objectives of the ESA.
Congress Should Reject the Proposed ESA AExtinction Rider@.
The recent administration budget submission to Congress includes a proposal to effectively bar citizens from continuing to go to federal court to enforce deadlines in the ESA for the listing of threatened and endangered species and for the designation of critical habitat. In my view this proposal is unwise for two reasons: first, it would undermine one of Congress= most valuable tools for ensuring that federal agencies comply with the ESA and other environmental laws; and, second, it fails to address the most obvious solution to the growing volume of lawsuits being filed against the agencies: additional funding for the agencies so that they can perform their statutory responsibilities in timely fashion.
Environmental groups and others do not file lawsuits under the ESA simply because they believe it is in their self-interest to do so. Rather, they sue because Congress itself has specifically authorized and encouraged the filing these suits. Section 11(g) of the ESA provides in part Aany person may commence a civil suit... to enjoin any person , including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.@ This so-called citizen-suit provision is similar to the citizen-suit provisions included in other major federal environmental laws. See, e.g., 33 U.S.C. 1365 (Clean Water Act citizen suit provision); 42 U.S.C. 7604 (Clean Air Act citizen suit provision).
It is important to emphasize that Congress has not authorized the filing of these suits on any of a variety of different, or potentially novel, legal theories. Rather, section 11 simply authorizes suit for Aviolations@ of the ESA and ESA implementing regulations. Most citizen suits brought under the ESA involve entirely straightforward application of clear law to undisputed facts. In many cases, the legal issue presented is no more complicated than the question of whether a motorist has committed a parking meter violation.
The reason Congress has authorized these kinds of straight-forward lawsuits B in the Endangered Species Act and in many other laws B is because this type of litigation B or, equally important, the threat of such litigation -- is an effective tool for ensuring that the agencies actually carry out the law as written. Congress has the opportunity to enact or throughly amend major statutes, such as the environmental laws, on a relatively infrequent basis. Over a decade has passed, for example, since Congress adopted major amendments to the ESA. On the infrequent occasions when Congress enacts major legislation, it is typically only after sustained public debate and focused congressional attention to the issues.
The difficulty frequently starts, as Congress has discovered through repeated, painful experiences, when the agencies begin to implement the legislation Congress has enacted. After legislation passes, public attention to an issue typically wanes. Coalitions of regulated businesses affected by new legislation typically lobby the agencies to delay its implementation or to adopt strained interpretations of the law that will lessen their regulatory burdens. These efforts are countered, to a limited degree at least, by environmental advocates, who attempt to speak on behalf of the broad public interest protected by the new law. Unfortunately, concentrated wealth and power frequently prevails over the broad public interest in this process. As a result, agency implementation of environmental laws all too frequently threatens to subvert the will of Congress, almost always in the direction of less environmental protection than Congress intended.
Citizens suits provide a solution to this problem. By empowering individual groups and citizens to directly enforce the law Congress has written, Congress creates an important check on the agencies= ability to subvert Congress= will. The goal is not to set up the courts as the arbiters of environmental disputes or to assign citizens groups around the country some special policy-making responsibility. Instead, the goal is simply to enlist our established judicial procedures and willing lawyers (motivated by a promise of attorneys fees if they bring a successful suit) in the effort to see that Congress= will is carried out. Ideally, the mere threat of successful litigation will prevent an agency from flouting the will of Congress and avoid the need for actual litigation.
The late Judge J. Skelley Wright, of the U.S. Court of Appeals for the D.C. Circuit, spoke eloquently about the issue of enforcement of environmental laws thirty years ago in a landmark case, Calvert Cliffs Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir 1971). Referring to the National Environmental Policy Act and other environmental legislation, he observed that Arecently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material >progress.=@ The next step, he said, was to see that Aimportant legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast halls of the federal bureaucracy.@ The citizen suit is Congress= most effective tool for ensuring that its objectives are not Alost or misdirected.@ The administration=s budget proposal, on the other hand, would encourage legal mandates to become lost or misdirected, weakening both the ESA and the authority of Congress.
In addition, the proposal in the administration=s budget submission fails to address one the most obvious and immediate causes of the growing volume of lawsuits being filed under the ESA. Environmental groups are in a position to sue over the failure of the government to list species and designate critical habitat because the agencies have a backlog of work that leads them to repeatedly violate their mandatory duties to carry out these steps under ESA. A major reason for these failures on the part of the agencies is a longstanding shortfall in funding to support the necessary scientific and other technical work. Congress could achieve significant progress in limiting the volume of lawsuits under the ESA by increasing appropriations to the agencies. As compared to the approach of eviscerating the citizen-suit provision, increased funding levels will allow Congress to reduce the volume of litigation against the agencies while simultaneously preserving an important tool to prevent agencies from ignoring congressional mandates.
The Potential Unintended Consequences of AIncentives.@
A great deal of attention has recently focused on the proposed use of financial payments to property owners B so-called Aincentives@ B as a complement, or possibly even as an alternative, to enforcement of the ESA. Financial incentives may have a potentially valuable, limited role to play in species conservation In my view, however, the extensive use of incentive payments would create many difficulties and would likely be counterproductive to the goal of protecting and restoring threatened and endangered species.
First, according to some, expansive taxpayer-funded incentive programs can be justified on the ground that endangered species regulations routinely result in constitutional Atakings@ mandating the payment of compensation under the Takings Clause of the Fifth Amendment. Congress should agree up front to arrange payments to landowners subject to the ESA, according to this argument, to avoid the filing of takings claims by aggrieved property owners after the fact.
In reality, however, ESA restrictions rarely if ever result in constitutional takings. Indeed, while a number of takings claims have been brought under the ESA, I am not aware of a single case in which it has been definitively determined that a federal ESA regulation has resulted in a taking. There are several explanations. First, the ESA is a relatively flexible law which rarely if ever produces the kind of severe economic impact that rises to the level of a constitutional taking. Second, wildlife has long been understood to be a public property resource which the public has broad authority to protect from harm or destruction. Because restrictions on an owner=s actions that threaten wildlife prevent a trespass on public property rights such restrictions cannot logically be said to result in a taking of private property rights.
Second, the proposal to pay financial incentives to those subject to the ESA also raises significant questions of fairness, especially if the incentives would be funded out of general tax revenues. The value of land for development and for other forms of profitable exploitation reflects in large part the value-enhancing effect of public investments, from the public highway system to agricultural subsidies. Because a good deal of private property value is publicly created, an owner has no legitimate claim on the public fisc simply because he cannot exploit a property=s full economic potential. A fairness problem also arises from the fact that a relatively small number of firms and individuals with large land holdings are likely to benefit the most from incentive programs. Approximately 125,000 timber or farm owners, less than two-tenths of one percent of all private landowners, own 38% of all the private land in the United States. Timber and farm interests that amount to less than 3% of all landowners own more than 80% of all private land. Thus, land owner incentive programs have a significant potential to create a significant new subsidy program for the relatively well-to-do at the expense of the ordinary taxpayer.
Finally, paying financial Aincentives@ to land owners has the potential to lead to over-investment in land the development of which could lead to endangered species problems. The ultimate goal of public policy should be to encourage investors to direct their attention to projects that avoid ESA (and other problems) rather in the direction of projects that can give rise to such problems. The ready availability of financial assistance to investors facing ESA problems would provide little incentive to investors to avoid investment opportunities that carry this type of risk. Ironically, therefore, financial assistance to landowners, while potentially useful in avoiding political conflicts in the short-term, could lead to more numerous and more serious clashes between development interests and ESA concerns over the long-term.
The nature of the problem can be illustrated in a number of ways. It is widely recognized that the availability of low-cost federal flood insurance in flood plain areas, rather than protecting property in areas subject to flooding, has actually increased development in flood plains and exposed more property to the risk of flooding. In the view of some, International Monetary Fund bailouts of debtor nations, while useful in the short-term, have encouraged some nations to engage in too much borrowing and fiscal irresponsibility in the long-run. So too in the case of ESA incentives, by lowering the likely cost of investing in areas that present serious ESA problems, the availability of incentive payments could actually encourage investors to invest more in these areas, tending to exacerbate rather than reduce development conflicts.
As I suggested, this is not to indicate that financial incentives have no place in species conservation. In some cases, short of outright public acquisition of the property, the only way to achieve effective habitat management may to enlist the land owner as an active manager of land on behalf of the environment. The rather special case of managing woodpecker habitat in North Carolina, for example, provides an example of where public payments to enlist land owner cooperation may be useful and necessary. But in the general run of cases, where the basic issues are whether natural habitat can be destroyed for development, additional water withdrawn for irrigation or other purposes, or additional trees cut for commercial purposes, taxpayer-funded payments to landowners who face ESA problems are more problematic.
At a minimum, these concerns about the potentially perverse effects of incentive payments warrant caution in the design of incentive program. For example, a stronger case can be made for incentive payments to the subset of owners who can demonstrate that the enactment and implementation of the ESA seriously disrupted settled development plans than to investors who now or in the future make investments in the face of foreseeable ESA problems. Limiting incentive payments to owners whose plans have been significantly disrupted by new legal enactments would have the twin advantages of focusing financial assistance on those owners likely to have the strongest equitable claims to public financial assistance while simultaneously sending a clear message that such assistance will not be made available to owners who voluntarily make an investment in the face of known environmental problems.
The Value of Critical Habitat Designations.
Finally, I wish to offer a brief word in favor of critical habitat designations and of the current legal requirement that critical habitat be designated concurrently with the identification of a species as threatened or endangered.
In the view of some, critical habitat designation is superfluous because it adds little to the legal mandates to avoid Ajeopardy@ to species under section 7 of the Act or to avoid a Atake@ of a species under section 9. In a sense this is a fair and accurate statement because a federal agency likely can halt or control any activity based on section 7 or 9 which would adversely affect critical habitat. The critical role of habitat designation B and the reason Congress included separate proscriptions in section 7 against jeopardizing species and destroying critical habitat B is that it serves to constrain agency discretion. In practice, both the terms Ajeopardy@ and Atake@ are rather elastic. The agencies therefore have a fair amount of discretion in applying these terms in particular cases. Certainly the courts are compelled to accord substantial deference to an agency=s determination that a particular action will not jeopardize a species or produce an illegal take. By contrast, once critical habitat is defined and drawn on a map, the ESA=s relatively clear prohibitions against actions that would result in the Adestruction or adverse modification@ of critical habitat presents a fairly straightforward obligation for the agencies to follow and for the courts to apply. For the reasons discussed above, there are compelling reasons to believe that the agencies, subject to constant pressure from the regulated community, will fail over time to carry out their ESA obligations as Congress intended. An enforceable command to the agencies to promptly designate and protect critical habitat helps ensure that Congress= ESA goals will actually be achieved.
The concern has been expressed that the requirement to designate critical habitat imposes an unreasonably heavy burden on the agency at a point in time when it has only begun to identify the threats to the species and to devise a recovery strategy. However, the Act makes clear that the initial designation need not be definitive. The Act directs the agency to rely on the Abest scientific and commercial data available@ and explicitly indicates that an agency may Afrom time-to-time... revise... [the] designation.@ Furthermore, an agency is directed to take into consideration Athe economic impact, and any other relevant impact, of specifying any particular area as critical habitat.@ Thus, an agency has wide latitude in selecting the factors to apply in designating critical habitat. Given the significant flexibility built into the Act, it cannot reasonably be said that the habitat designation requirement imposes an unreasonable strait jacket.
* * *
Thank you for the opportunity to testify. I would be happy to respond to any questions.
 The pertinent language, which some environmental advocates have called an Aextinction rider,@ reads as follows: AThat notwithstanding the specific time frames and deadlines of section 4(a) and (b) of the Endangered Species Act of 1973, as amended, not to exceed $8,476,000 shall be used for implementing subsections (a), (b), (c)(1), (c)(2)(B)(iii) and (e) of section 4 for species that are indigenous to the United States, to be expended solely for (1) complying with court orders or settlements in effect as of the date of the passage of this law, and (2) undertaking such other actions as determined by the Secretary to be consistent with the priorities established by a listing priority system to implement these subsections and subject to the requirements of this appropriation.@
 See Environmental Defense Fund, AWhy Takings Bills Threaten the Property Rights and Values of Most Landowners (1995).