Sen. David Vitter (R-La.), top Republican on the Environment & Public Works Committee, has been investigating the Administration's "sue and settle" strategy, which abuses the Endangered Species Act and is used to coordinate with environmental allies on new rules and regulations while usually excluding the public and other interested parties. Click here to read more.
Abuse of Endangered Species Act threatens American's private property rights

By Sen. David Vitter | December 28, 2013

December 28, 2013, is the fortieth anniversary of the signing of the Endangered Species Act (or ESA). That should be a non-controversial cause for celebration.

Unfortunately, however, because the Obama administration has launched an assault on private property rights through abusive tactics under the ESA, it's not.

Like all conservatives I know, I strongly support protecting endangered species. Of course it is in our nation's interest to protect fragile ecosystems and endangered wildlife. In fact, I don't know anyone who would disagree with that statement.

The Obama administration is trampling on American citizens' private property rights, pure and simple.
Tragically, however, far-left environmentalists in the Obama administration have cynically taken advantage of this broad support and gone way beyond the original intent of the law. They're abusing the ESA to snatch up private property unnecessarily, stomping on the basic rights of American citizens.

Obama's policymakers often act nefariously through a tactic called "sue and settle." They settle litigation with their allies in environmental groups behind closed doors in a way that advances their far-left agenda, blocking out of the process those citizens, states, and local governments affected by their decisions and their subsequent rules and regulations.

Through these secret settlements, they are taking advantage of their position within the administration to institute a much more radical, aggressive agenda than anything actually mandated by law.

This is how it works: One or more far-left environmental groups sue the federal government -- in this case, under the Endangered Species Act -- claiming that the government is not satisfying its regulatory obligations.

Then the groups and their friends in the administration -- opposing sides in the lawsuit but one and the same side regarding their policy goals -- draft a settlement agreement completely behind closed doors.

No other stakeholder or representative of the public is provided the opportunity to find out how they might be impacted or to have a voice in the negotiations.

The parties then get the judge to bless their agreement. That's usually easy, since he or she doesn't hear opposing arguments that may offer any different perspective and is often eager to dispose of what would otherwise be a complicated and time-consuming case.

This very tactic has led to extreme and abusive actions very near where I live in St. Tammany Parish, Louisiana. There, Washington bureaucrats are telling a private landowner that his land cannot be used in any commercial way, thus driving its value down to near zero.

This is all to protect the dusky gopher frog, a species that's alive and well in Mississippi but has literally not been spotted in that part of Louisiana for nearly 50 years.

All of this is a direct result of the abusive "sue and settle" tactic described above.

In my position as Ranking Member of the Senate Environment and Public Works Committee, I have called out the administration for its manipulation of the judicial system and abuse of the ESA.

I've also focused on a second clear method of abuse -- using skewed economic impact analyses (a cost-benefit type analysis required by law) to get to the pre-determined results the environmental left wants.

In the past five years, the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration, which are primarily responsible for carrying out the ESA, have proposed numerous revisions to the method of conducting critical habitat economic impact analyses.

In a letter to the heads of the Agencies, I suggested that the Agencies' rule-making changes are a blatant attempt to avoid public scrutiny of the consequences of their actions. The changes lead to an incomplete and incorrect representation of what the economic impacts are on private and state lands.

For instance, in some cases the administration is trying to fudge the numbers by claiming that the only "cost" to a regulation is the pure administrative cost of promulgating it. This ignores the much more significant economic cost of the regulation's negative impact on job creation and economic activity, the very cost that the analysis is clearly supposed to focus on.

Through the above two tactics and others, the Obama administration is trampling on American citizens' private property rights, pure and simple. As we observe the fortieth anniversary of the Endangered Species Act, we must truly honor the law by ending these abuses.

David Vitter represents Louisiana in the United States Senate. He serves as Ranking Member of the Senate Environment and Public Works Committee.