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Species Act Has Created Legal Morass, Industry Group Alleges

In its 41 years of existence, the federal Endangered Species Act (ESA) has spurred an unending cycle of lawsuits and closed-door settlements while hamstringing the U.S. Fish and Wildlife Services (FWS) from carrying out its primary mission, according to an analysis released Monday by the oil/gas industry-backed Western Energy Alliance (WEA).

The legal onslaught has kept the FWS from having sufficient resources to achieve actual recovery of various species, WEA officials said. Instead, FWS efforts are mired in litigation and endless bureaucratic processes, resulting in slowed oil/gas permitting and development, they said.

Following a landmark 2011 mega-settlement involving the species law's major litigants, WildEarth Guardians (WEG) and the Center for Biological Diversity (CBD), the environmental groups agreed to limit future listing petitions and other mostly nuisance-related litigation, but that hasn't happened, WEA said.

Using its own resources, along with legal and FWS databases, WEA found that 46 petitions have been filed with FWS, requesting updated listings (from "threatened" to "endangered") on 122 different species. WEG and CBD were responsible for 34 of the petitions.

When the federal government responds to these legal filings, "it enters into closed-door negotiations that exclude the public, elected officials, state/local government, job-creating businesses and other stakeholders," the WEA report noted.

Despite agreements by the environmental groups to curb the litigation, WEA's analysis found that:

  • FWS received more than three species petitions each month and more than 38 a year, compared to an average of 20/year prior to 2007;
  • CBD since 2011 has developed a large 53-species submittal to FWS less than a year after the major settlements were signed;
  • In recent years, 35 different plaintiffs have filed 29 lawsuits involving 97 different species, all challenging FWS decisions, and it turned out that 26 of the species had already been addressed in past settlement agreements; and
  • WEG and CBD have been the plaintiffs on 14 different lawsuits challenging the listing decisions on 35 different species, and, again, 19 of those species already had been subject to past settlements.

"Lawsuits are a lucrative business for environmental groups since the federal government often reimburses attorney fees at taxpayer expense," said Jack Ekstrom, WEA chairman. "Attorneys for the environmental lobby line their pockets and organizations flood the agency with listing petitions for species that are not truly endangered to boost their fundraising. This takes resources away from the actual species conservation and ultimately the American economy takes a hit."

Ekstrom alleged that what is taking place is a "sue-and-settle racket" that forces the government into untenable situations and sues the government again for failing to meet statutory obligations, and as a result, they gain the exclusive right to negotiate what amounts to a sweetheart deal for the environmental organizations.

WEA contends this is the reason that the federal government has only managed a 2% success rate in protecting endangered species.

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