Imagining a Justice Kavanaugh: For One Endangered Frog, Might Justice Scalia Have Been a Kinder, Gentler Jurist?
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
If Judge Brett Kavanaugh's Supreme Court confirmation process goes as quickly and affirmingly as his supporters hope, one of the cases he'll hear on his first day on the bench will invite him to consider an imponderable question: Whether it's possible to put a dollar value on an endangered species.
Weyerhaeuser v. U.S. Fish and Wildlife Service will raise an important and long-controversial aspect of environmental law: the use of cost-benefit analysis in agency decision-making. The Court may well be able to decide this case without diving into the most contentious aspects of the long-running cost-benefit debate. Still, it could provide an opportunity for a glimpse into how a new justice would approach a set of issues that, while seemingly technical, are central to deciding the stringency of environmental safeguards.
The case involves timber giant Weyerhaeuser Corporation, an unassuming but endangered amphibian called the dusky gopher frog, and a parcel of forested land in Louisiana. Weyerhaeuser conducts logging operations on that parcel of land and is challenging the U.S. Fish and Wildlife Service's (FWS) decision to include it within the frog's designated "critical habitat," a decision that turned in part on a cost-benefit analysis that the company claims showed enormous costs with no benefits in return. The company (and a bunch of property rights advocates weighing in with amicus
Turning Power Over to States Won't Improve Protection for Endangered Species
Professor Michael Robinson-Dorn of the University of California, Irvine co-authored this article with Center for Progressive Reform Member Scholar and University of California, Irvine Professor Alejandro Camacho. It originally appeared in The Conversation on January 11, 2018. Since the Endangered Species Act became law in 1973, the U.S. government has played a critical role in protecting endangered and threatened species. But while the law is overwhelmingly popular with the American public, critics in Congress are proposing to significantly reduce federal
Senate Briefing Highlights Need for Strong Federal Role in Protecting Endangered Species
On September 28, I joined senators and Senate staff for a Capitol Hill briefing hosted by Sen. Tammy Duckworth. Our discussion focused on the report I co-authored with my colleagues at the Center for Land, Environment, and Natural Resources, entitled Conservation Limited: Assessing State Laws and Resources for Endangered Species Protection, which investigates states' capacity to protect and recover endangered species by looking at how these laws compare to the federal Endangered Species Act (ESA). It also looks at state and
New Report Shows State Endangered Species Laws Come Up Short in Protecting Imperiled Plants, Animals, Habitats
In spite of its documented success in conserving vulnerable species and ecosystems, as well as robust and enduring support among American voters, the federal Endangered Species Act has not been spared from calls to devolve funding and authority from the federal government. As this trend has gained increasing support within the 115th Congress and the Trump administration, Sen. John Barrasso (R-WY), Chairman of the Senate Environment and Public Works Committee, is widely expected to introduce legislation that seeks to erode
When Deciding Which Endangered Species to Prioritize, What Role Do Biodiversity and Ecosystem-Level Assessments Play?
This post is the second of a pair focused on the challenges facing the Endangered Species Act and the U.S. Fish and Wildlife Service in the 21st century. You can read the first post here. In drafting the 1973 Endangered Species Act (ESA), Congress gave explicit attention and priority, and therefore funding, to individual species. Rather than approaching species conservation through a more holistic consideration of a species' importance within its ecological community, giving broader attention to biodiversity, or looking
Does Species Triage Make Sense for the Fish and Wildlife Service?
This post is the first of a pair focused on the challenges facing the Endangered Species Act and the U.S. Fish and Wildlife Service in the 21st century. You can read the second post here. Imagine yourself in a sinking ship. The water is rising quickly. Around you are 20 unique, precious artifacts, among the last of their kind to exist on Earth. You only have the capacity to rescue 10 pounds of these objects – if you try to take on
Saving Endangered Species Requires a Systemic, Nationwide Approach
Yesterday, I joined four other witnesses in testifying about the Endangered Species Act (ESA) at a House Oversight and Government Reform subcommittee hearing. Most of the witnesses and House members who attended focused on a variety of complaints about the ESA's provisions governing listing and delisting of species and called for changes to the law and the ways in which it is administered. In doing so, they missed the larger point about efforts to save endangered and threatened species: we
CPR's Glicksman Testifies on Endangered Species Act
Center for Progressive Reform Member Scholar (and board member) Rob Glicksman is on Capitol Hill testifying before the House Oversight and Government Reform Committee’s subcommittee on the Interior this afternoon at 2 pm ET. The hearing will focus on “barriers to delisting” of species under the Endangered Species Act. He’ll cover four major points in his testimony, which he summarizes thusly: First, the Endangered Species Act (ESA) has achieved considerable success in achieving its conservation goals. Second, budgetary constraints have prevented the two agencies
Friday in DC: Creative Approaches to Critical Habitat Protection Under the ESA
by Dave Owen | March 20, 2013
Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear. This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska. That isn’t atypical; critical habitat designations often generate controversy. But one might wonder why. The ESA’s only provision directly targeted at critical habitat protection is
FWS' Critical Habitat Area Designation for Polar Bears is Good News, but How Much Difference Will it Make?
by Dan Rohlf | November 30, 2010
First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an area larger than the states of Oregon and Washington combined. FWS listed polar bears as “threatened” in 2008, after a petition from environmental organizations and
Brown Pelican Dis-Endangered
This posting is reprinted, by permission from Legal Planet. The Fish and Wildlife Service yesterday announced some very good news — the brown pelican will soon be removed from the list of endangered and threatened species. This enormous fish-eating bird has been protected since 1970, when it was included on the very first list of US endangered species under a predecessor to the current Endangered Species Act. Its population rebounded after DDT was banned in 1972. By 1985, the pelican
Wishful Thinking Doesn't Justify Grizzly Delisting
Cross-posted by permission from Legal Planet. Federal Judge Donald Molloy in Montana has ordered the Fish and Wildlife Service to restore grizzly bears in the Yellowstone area to the list of endangered and threatened species. Judge Molloy refused to allow FWS to delist the grizzly on the basis of unsupported wishful thinking about the bear’s future. Grizzly bears once roamed across most of the North American west, but the population in Yellowstone is one of the few remaining remnants in
CPR Scholars Submit Comments on Reforming ESA's Inter-Agency Consultation Regulations
Today, I joined CPR Member Scholars Mary Jane Angelo, Holly Doremus, and Dan Rohlf in submitting comments to the U.S. Fish and Wildlife Service (FWS)—one of the agencies charged with primary responsibility for executing the Endangered Species Act (ESA)—suggesting several ways to improve the regulations for implementing interagency consultations under the Act. Under Section 7 of the ESA, which governs interagency consultations, any time that a federal agency like the Department of Defense or the Department of Transportation wants to