ESA reform bill could prevent costly abuse

Mar 22, 2013

Environmentalist groups have been running the “suesettle-repeat” play so often the other teams are getting wise to it. But a new effort to stem this continued abuse could be a game-changer.

Senator John Cornyn (R- TX) submitted Senate Bill 19 (S. 19) which seeks to reform the Endangered Species Act (ESA) of 1973. The overall goal is to put an end to what has been called the “sue and settle” cycle used by environmental groups to extract huge sums of money from federal agencies—and thereby taxpayers—in the form of covered legal fees.

Overall, the bill adds a pair of definitions to ESA, adds requirements which would improve awareness and involvement of affected stakeholders, and would alter the way in which litigation costs are awarded.

According to Senator Cornyn’s announcement of his bill, he was prompted by events from 2011 when two environmental groups “settled multi-district litigation with the [Fish and Wildlife Services].” The results of that settlement were farreaching and required the plaintiffs’ fees to be paid under the Equal Access to Justice Act (EAJA) through a pool of taxpayer-funded monies.

“The suits were brought against the FWS because it failed to meet certain statutory deadlines after being flooded with requests to list hundreds of species,” said Cornyn.

“Closed-door ESA settlements like these not only threaten unwarranted regulation, but give plaintiffs undue leverage over local land owners, businesses and elected officials in the conservation process.”

Though it was unstated by Cornyn, the two environmental groups in question in the 2011 events which prompted the bill were the Center for Biologic Diversity and WildEarth Guardians.

Millions of dollars in court-paid legal fees have gone to groups seemingly more interested in litigation than the endangered species for which they claim to be fighting. According to a U.S. Government Accountability Office report, $44.4 million in legal fees were paid out under EAJA from 2001- 2010. That number, however, represented 525 legal fees and the report found that only about 13 percent of agencies within USDA and Department of Interior could provide any data on covering litigation costs.

S. 19 proposed two new terms be added to the definitions section of the 30-year-old ESA. One is “affected parties”—which would include “any person, including a business entity, or any State, tribal government, or local subdivision” which might be affected by any determination made under a citizen’s suit. Citizen’s suits are the most common form of litigative activity environmental groups bring against government agencies.

The other new term is “covered settlement” which would create a new category of settlement types for citizen’s suits. Among these would be a “consent decree” which would not provide for the coverage of litigation costs by the court. Further, the bill would remove “failure to meet deadline” as a basis for action. This is another detail environmental groups frequently exploit in their frequent cases against government agencies.

S. 19 includes numerous little tweaks in the settlement portion of ESA’s Section 11 (Penalties and Enforcement) aiming to curtail the amount and ease with which plaintiffs bringing citizen’s suits can claim coverage of litigation costs.

Among these are prohibiting the court to grant a motion if a covered settlement includes covering litigation costs and requiring all affected states and/or counties where a supposed endangered species exists to approve a covered settlement.

The bill was introduced to the Senate and referred to the Senate Committee on Environment and Public Works on Feb. 27. It has 16 cosponsors, all Republican and mostly from western states, the most recent is Dean Heller of Nevada. The Environment and Public Works committee is composed of nine Democrats, eight Republicans, and one Independent. The committee is chaired by Barbara Boxer (D-CA) and the Ranking Member is David Vitter (R-LA).

The full text of the bill, as well as summaries and associated information, can be found online at, search phrase “S. 19.” The full text of the ESA can be found online at, search phrase “Endangered Species Act text.” — Kerry Halladay, WLJ Editor