A case filed recently in a Texas federal district court, General Land Office of the State of Texas v. U.S. Department of the Interior, takes the government to task for misusing the federal Endangered Species Act, known as the ESA. The case involves a protected species known as the golden-cheeked warbler, which is prevalent throughout Central Texas, where the plaintiff, the Texas General Land Office, is a major property owner. While focusing on protecting the warbler, the federal government has ignored the quality of the surrounding human environment and unduly interfered with the Texas General Land Office’s rights to use its property.
Under current practice, the Fish and Wildlife Service of the U.S. Interior Department designates species as either “endangered” or “threatened” based solely upon a head count of the number of individual critters of any given species observed in the environment, without considering the economic or other impacts of protecting the species. The United States Supreme Court famously set the legal standard in the 1970s by ruling that species must be protected “whatever the cost.” That’s not a typo. And it’s no joke.
Once a species is listed by the government, the ESA makes it unlawful to “take” the species, which is defined as any action to “harass, harm, pursue, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” While “kill” and “trap” are readily understandable terms, the terms “harass” and “harm” are not. What does it mean to “harass” a turtle? What actions can “harm” a squirrel? Those are ontological standards not legal ones. There are severe civil and criminal penalties prescribed for “taking” a listed species, including monetary fines and incarceration. The penalties apply not only when human activity causes actual injury but also when there is any “attempt to engage in such conduct.”
The implications are startling. The only way to truly protect listed species under the ESA is to separate humans from the protected species. Because species live in the environment, the logical conclusion is that the ESA requires the government to keep humans out of the environment.
Wait, what? That can’t be right. It is.
The only existing federal law that could moderate such a harsh result is NEPA, the National Environmental Policy Act, which seeks to protect the “human environment.” NEPA requires that before any major federal action significantly affecting the quality of the human environment is undertaken, the full environmental impacts of the action must be thoroughly considered. On the other hand, the ESA focuses solely on protecting individual species “whatever the cost” to the broader human environment. Accordingly, the moderating influence of NEPA should provide meaningful relief from the short-sighted focus of the ESA. One would think.
Unfortunately, there is a split of authority among the federal courts regarding the extent to which NEPA applies to the ESA. Some courts have ruled that NEPA and the ESA both protect the environment and, because the ESA does so in a more focused manner, the federal government need not comply with NEPA when protecting species under the ESA, thereby holding that the ESA trumps NEPA. Other courts recognize the broader scope of NEPA and require that government efforts to protect species under the ESA consider the impacts on the larger human environment, as required by NEPA. While the United States Supreme Court has never addressed this question, the warbler lawsuit brings the issue into focus, because the Fish and Wildlife Service never complied with NEPA in connection with any of its actions regarding the warbler. Rather, it rigorously but unintelligently concentrated on benefitting just one species to the exclusion of all other considerations.
The case has implications far beyond central Texas. Because the ESA requires the federal government to protect endangered and threatened species throughout the nation “whatever the cost,” NEPA is the only currently available legal mechanism to soften the ESA’s drastic implications. Accordingly, General Land Office of the State of Texas v. U.S. Department of the Interior provides the best opportunity for the nation, through the judicial process, to recognize that our complex world requires more than dogmatic adherence to the protection of a single species regardless of the societal impacts.
Theodore Hadzi-Antich, senior attorney, Texas Public Policy Foundation, is one of the attorneys representing the Texas General Land Office in the litigation.