Should people affected by federal agency actions that impose over ten billion dollars of costs and impact tens of millions of acres for no benefit (and likely cause harm to the intended beneficiaries of the actions), be able to challenge such decisions in court? It’s a matter of simple fairness: the doors of justice should be open to citizens so they can challenge government regulations, especially those that have significant costs and impacts.
In a just-filed amicus brief, in support of Pacific Legal Foundation’s petition to the Supreme Court to hear a case, Reason Foundation, Cato Institute and the National Federation of Independent Business Small Business Legal Center examined this issue as it pertains to the designation of “critical habitat” under the Endangered Species Act. Yet the federal agencies that administer the Act maintain otherwise by claiming the agency actions under which critical habitat for species are designated, included which habitat is excluded from designation, are immune from legal challenge.
For a sense of the massive costs, illusory conservation benefits, and even environmental harm, designation of critical habitat entails consider the following from the Reason-Cato-NFIB amicus brief:
Examining the data associated with the designation of critical habitat for 159 species—out of the 793 so treated as of May 1, 2016—reveals the enormous costs and amount of land and water involved in habitat designation. Brian Seasholes, The Critical Nature of Critical Habitat Decisions, Reason Found. (June 1, 2016), http://bit.ly/28e6NsW. The effects are:
- Total economic impact of up to $10.7 billion (usually over 20 years, following designation);
- Annual economic impacts of up to $1.3 billion;
- Hundreds of lost jobs per species;
- Regulatory burdens affecting 60,169,546 acres of land (11,261,054 privately owned), 83,372 miles of streams/creeks/rivers, and 68,846,720 acres of lakes/oceans/estuaries;
- Regulatory burdens associated with designating privately owned land adjacent to 27,851 miles of critical habitat streams and rivers.
- Designations in 37 states and two territories.
Despite these extraordinary costs and impacts for just 20% of the species with critical habitat, “a number of studies have found that critical habitat designation has no discernible influence on whether a species’ status is declining, stable, or improving,” according to the brief.
And here is what the U.S. Fish and Wildlife Service has to say about the conservation value of critical habitat:
In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service’s present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. 70 Fed. Reg. 46924 (Aug. 11, 2005).
Yet the U.S. Fish and Wildlife Service routinely ignores the costs of designating critical habitat, to the extent of even omitting them from the Federal Register (which is where the official agency decisions for such designations is recorded), as the Reason-Cato-NFIB brief documents:
For example, in 2015, when the USFWS designated 1,429,551 acres of critical habitat—of which 614,707 was private land—for the Gunnison sage grouse (a chicken-sized bird in Colorado and Utah), it estimated that doing so would have an impact of $6.9 million over 20 years. 79 Fed. Reg. 69347 (Nov. 20, 2014). The agency’s commissioned analysis provides separate estimates of annual impacts of the designation to the oil and gas industry: $160 million and 44 jobs in Colorado and $210,000, 5 jobs, and $62,000 in lost tax revenue in Utah.
In addition to the enormous costs imposed by critical habitat designations, “[m]ounting evidence suggests that some regulatory actions by the Federal government, while well-intentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on private lands.” 75 Fed. Reg. 78460 (Dec. 15, 2010).
Or, as the federal government succinctly describes the issue:
“Many private landowners are wary of possible consequences of encouraging endangered species to their property . . . . Many landowners fear a decline in their property value due to real or perceived restrictions on land-use options where endangered or threatened species are found. Consequently, harboring endangered species is viewed by many landowners as a liability. . . . This perception results in anti-conservation incentives because maintaining habitats that harbor endangered species rep- resents a risk to future economic opportunities. . . . We attempt to ease these concerns through communication and outreach withlandowners; however, we recognize that these efforts are not always successful.” 75 Fed. Reg. 78460 (Dec. 15, 2010)
This is the outcome of conservation-by-hammer, instead of carrot, as the amicus brief notes:
The unfortunate but predictable result of the ESA’s punitive approach to conservation is that species protection is connected to economic liabilities, and landowners seek to lessen these liabilities by denying species habitat.
The harm caused species by the ESA is especially damaging on private lands because they are the linchpin of species conservation; 78 percent of endangered and threatened species depended on private land for all or some of their habitat. U.S. General Accounting Office, GAO/RCED-95-16, Endangered Species Act: Information on Species Protection on Nonfederal Lands 4, 5 (1994). Ninety-one percent of all endangered and threatened species have at least some habitat on nonfederal land. Id. And while 50 percent of endangered and threatened species do not exist on federal land, only 12 percent of them exist solely on federal land. Bruce A. Stein et al., “Significance of Federal Lands for Endangered Species,” in Dep’t of the Interior, Our Living Resources 398-401 (Edward T. LaRoe et al., eds. 1995). “Most federally listed species in the United States will not recover without cooperation of non-Federal landowners,” according to the USFWS. 75 Fed. Reg. 78460 (Dec. 15, 2010).
If all this wasn’t bad enough:
Critical habitat designation also harms the environment because “by reducing the density of development in areas deemed to be critical habitat, [it] can change the shape of urban areas and squeeze growth into more remote locations.” Sunding et al., The Economic Costs of Critical Habitat Designation, supra, at iii. “This effect of designation is costly for potential homebuyers and business owners as they are forced to locate to less desirable areas. . . . By encouraging sprawl, critical habitat designation can also lead toregional problems of road congestion and air pollution, in addition to the problem of housing affordability already mentioned.” Id. Yet sprawl is identified as a major threat to wildlife, including endangered species. See generally, e.g., Reid Ewing & John Kostyack. Endangered by Sprawl: How Runaway Development Threatens America’s Wildlife (2005).
So to sum up: critical habitat imposes billions of dollars of costs, across tens of millions of acres, for no discernible conservation benefit, and causes widespread environmental harm, including to the very species that are supposed to be helped. While this may be business-as-usual for the federal government, it cries out for review by the Supreme Court.