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E & E News, April 1, 2014

Court upholds massive listing settlements between FWS, greens
By Phil Taylor

A federal court in Washington, D.C., today upheld a pair of sweeping 2011 settlements between the Obama administration and environmental groups over the streamlining of endangered species decisions, concluding that a homebuilders coalition lacked standing to challenge them.

It marked the fourth time in a row federal courts have determined groups have no basis for challenging the legal agreement signed with WildEarth Guardians and the Center for Biological Diversity.

The settlements set deadlines for the Fish and Wildlife Service to issue final Endangered Species Act listing decisions for more than 250 candidate species by the end of September 2016. Candidate species are those the service has found deserving of an ESA listing, but for whom federal protections were deferred due to a lack of resources.

The National Association of Home Builders filed the lawsuit in December 2012, claiming the settlements force Fish and Wildlife to violate procedural requirements for listing under ESA. It also claimed the deadlines set by the settlements could force FWS to neglect conservation efforts that aim to reduce or eliminate the need to list the species.

The roughly 250 candidate species at hand included nine subspecies of Mazama pocket gopher and four species of Texas salamander that either live on or could live on land owned or used by plaintiffs, the court said. FWS proposed listing four of the gophers as threatened and all the salamanders as endangered.

But Judge Emmet Sullivan of the U.S. District Court for the District of Columbia said the settlement doesn't compel Fish and Wildlife to list any species, but rather sets a timeline for those decisions to be made. Plaintiffs cannot show they'll be harmed, he added.

"The agreements ... seek to clear the backlog of species on the [candidate list]," Sullivan wrote in his 26-pageopinion. "They do not dictate that the service reach any particular substantive outcome on any petition or listing determination."

Sullivan is the same judge who gave final approval to the settlements in September 2011 (E&ENews PM, Sept. 9, 2011).

A spokesman for NAHB did not immediately respond to a call this afternoon.

Noah Greenwald, who leads the Center for Biological Diversity's endangered species program, cheered the ruling.

"The Endangered Species Act provides ample opportunity for the Home Builders and any other citizen, state or group to participate, comment and even challenge the result of protection decisions," he said in a statement. "What they can't do is trample democracy by insisting that the government make no decision at all."

Today's ruling comes weeks after the state of Oklahoma and the Domestic Energy Producers Alliance filed a separate lawsuit in the U.S. District Court for the Northern District of Oklahoma claiming the settlements violated the Constitution and the Administrative Procedure Act (Greenwire, March 18).

That lawsuit is in part designed to halt Fish and Wildlife's decision last week -- under the settlement's deadline -- to list the lesser prairie chicken as threatened, a move that some fear will impede oil and gas development in the southern Great Plains.

Greenwald called the Oklahoma complaint a "hopeless, copycat lawsuit" that will fritter away taxpayer dollars.

Roughly a year ago, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Safari Club International, a sportsmen's group, also lacked the right to challenge the settlement (Greenwire, Jan. 4, 2013).

The settlements -- which have led to a spike in ESA listings under the Obama administration (Greenwire, Jan. 11, 2013) -- have sparked a backlash among Republicans and industry groups that claim listings will harm property values and stifle energy production.

Administration officials have steadfastly defended the settlements, arguing they've resulted in a more orderly implementation of the 1973 species law.

Environmentalists say the species at hand have been imperiled in some cases for well over a decade and that the settlements merely force FWS to follow the law.


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This article originally appeared here.

Photo © Paul S. Hamilton