Bush Leads Push for Endangered Species Reform

As far as Texas Land Commissioner George P. Bush is concerned, the game is rigged when it comes to protecting the chickens of lesser prairies and the warblers with golden cheeks.

The son of GOP presidential hopeful and former Florida Gov. Jeb Bush is leading an alliance of 23 state land commissioners in a charge against the Endangered Species Act, calling for more transparency on how animals are added to the federal endangered list.

In question is a practice known  “sue and settle” under which environmental advocates sue the federal government if it misses deadlines to respond to their petitions seeking to name a new endangered species. To avoid long court trials, agencies such as the U.S. Fish and Wildlife Service and National Marine Fisheries Service sometimes enter into settlements with the environmental groups filing the petitions. The end result, Bush claims, is species ending up on the list without sufficient scientific basis, and taxpayers end up footing the legal bills of both parties.

“The Endangered Species Act was designed to preserve biodiversity, not enrich trial lawyers and political activists,” Bush said in a statement. “It's time to prioritize scientific assessments in conservation when dealing with property rights and our national security."

But environmental groups that file such suits call those accusations unfair. Federal wildlife agencies can enter into settlements because its cheaper than trial and agencies often have to pay legal fees of the winning party if they lose a lawsuit under the Equal Access to Justice Act. This applies to more than just environmental plaintiffs.

Winning a settlement doesn't guarantee an animal a spot on the endangered list. It only forces the agency to make a decision, which typically doesn't come for months, or even years, after a settlement is reached, said Noah Greenwald, endangered species director at the Center for Biological Diversity. 

"Fish and Wildlife Service sometimes just doesn't act unless they're sued," Greenwald said. "They have to get sued in order to list those species."

In a resolution brought by Bush and adopted by the Western States Land Commissioners Association, the officials ask Congress to enact legislation requiring federal agencies to report legal expenses on “sue and settle” cases and relax the deadlines leading to such suits.

The settlements lead to "a flood of litigation," Bush said, and the tactic "lines environmental groups' pockets by looting the national treasury."

Under the Endangered Species Act of 1973, federal wildlife agencies have 90 days to respond to petitions to classify a new endangered species. After 90 days, the agencies will decide whether to conduct an investigation on whether to add the species to the endangered list. This investigation must conclude in 12 months.

One of the most prevalent "sue and settle" cases took place in 2011, when WildEarth Guardians settled a lawsuit against the Department of the Interior. The government agreed to rule on a backlog of 251 candidates for endangered species listing by Sept. 30, 2016. In return, WildEarth agreed not to file any lawsuits to enforce statutory deadlines until March 31, 2017. 

The Center for Biological Diversity entered in its own settlement with the government at the same time, promising not to file lawsuits to enforce deadlines for more than 10 species per year until September 2016. 

The land commissioners are also making a plea for states' rights. The more species on the endangered list, the more habitats that must be protected, which limits development and reduces property value. Bush cited Fort Hood as an example, noting Lt. Gen. Sean MacFarland complained in July that following guidelines to protect the golden-cheeked warbler was complicating base operations and administration. 

In the resolution, the commissioners ask Congress to give states more input in species classification and ensure that "federal critical habitat designations defer to state determinations of such habitat." 

More than 1,500 species are listed as endangered or threatened in the United States, and Texas Republicans have a long history of attacking their federal protections. Bush's predecessor, Jerry Patterson, once said the Endangered Species Act protects animals that should die anyway. 

State agencies have spent years fighting over who has the right to dictate endangered species policy. In 2011, a little-known law placed the species under the purview of the state comptroller with the reasoning that industrial activity is at risk every time a Texas animal makes the endangered list. Former state Comptroller Susan Combs has publicly criticized federal regulation, calling it "heavy-handed" and personally campaigning for the declassification of the golden-cheeked warbler.