NFIB Calls on U.S. Fish & Wildlife Service to Rescind Draconian ESA Regulations

Date: April 28, 2016

In March the National Federation of Independent Business fired a shot over the bow—threatening legal action if the U.S. Fish & Wildlife Service (FWS) should fail to rescind illegal regulations affecting thousands of small business owners in rural communities across the country. In partnership with Pacific Legal Foundation, NFIB’s petition to FWS asserts that the agency has improperly imposed more burdensome land use restrictions than are authorized under the Endangered Species Act (ESA). Specifically, FWS regulations prohibit almost all economic activity on privately held lands affecting threatened species, unless the owner has first obtained a federal permit—which is usually cost prohibitive for small business owners.  

But as we argue, Congress intended such draconian restrictions only in the most exigent of circumstances. In other words, Congress crafted the ESA to impose those severe restrictions only for “endangered species” because they are on the verge of extinction. But Congress intentionally choose to regulate “threatened species” less stringently.

Under the ESA, a threatened species is merely one that might become endangered in the future. Because it is not imminently in danger of extinction, Congress choose to impose less severe restrictions—which makes sense, right? After all, Congress would not have intended to impose more burdens than necessary on small business owners. Indeed, the ESA sought to balance the goals of environmental stewardship and economic development. 

Accordingly, rather than requiring the very same draconian restrictions as are imposed for the protection of “endangered species,” Congress required FWS to promulgate regulations for threatened species as may be “necessary and appropriate” for the protection of  that species.  This clearly requires the agency to make case-by-case determinations as to what sort of regulatory restrictions are needed—and clearly precludes the agency from adopting a one size fits all approach. Accordingly, our petition asks the agency to rescind its regulations because they improperly departs from the policy that Congress choose. Our goal is to force the agency to restore the balance that Congress intended. 
As things stand now, radical environmentalists use the ESA as a tool to impede development by seeking to list new species as “threatened.” Why? Because they know that under existing FWS regulations they will trigger the very same draconian restrictions as would apply for an “endangered species.” So “threatened species” are low-hanging fruit—since of course it’s easier to list a species as “threatened” than “endangered.”  As a result, hundreds of thousands of acres of private land—especially in the west—are effectively converted into nature preserves, therein killing small businesses that rely on their land.
But if we are successful FWS will have to reexamine what restrictions are appropriate for each listed threatened species. We expect that in many cases the agency will determine that it is not necessary or appropriate to impose such draconian restrictions. And that is ultimately a good thing for small business landowners.
And this approach is actually better for the environment. The reality is that the ESA will actually be more effective in its goals of encouraging recovery of species under the approach Congress intended. There are two simple reasons: (1) under the current regime landowners have little incentive to do anything to help an “endangered species” recover because they will face the very same draconian restrictions if the species is reclassified as “threatened,” and (2) landowners have no incentive to help avoid the backslide of species from “threatened” to “endangered” because they are already subject to the same draconian restrictions that would apply if the species should be listed as “endangered.” But landowners would have every incentive to avoid backslide if they knew that they would face more burdensome restrictions if the species were relisted as “endangered.” And conversely, they would have every incentive to help facilitate recovery of “endangered species” if they could expect restrictions to be lifted.
For now, we’re waiting to see how FWS will respond. Ideally the agency will do as we ask and rescind the offending regulations. But if not, we’re prepared to take legal action. For more information, check out Jonathan Wood’s commentary at the PLF Liberty Blog


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