The Endangered Species Act of 1973 (ESA) provided a framework to conserve and protect endangered and threatened species and their habitats both domestically and abroad. According to the Center for Progressive Reform, at an April 2023 hearing of the Water, Wildlife and Fisheries Subcommittee of the House Natural Resources Committee, the conservative majority pushed no less than three Congressional Review Act (CRA) resolutions aimed at blocking ESA protections.
In this episode of our Environmental Law series, host Craig Williams is joined by professor of environmental law, Robert L. Fischman from the Indiana University Maurer School of Law, as they spotlight ESA, its impact, and ESA reform.
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Robert L. Fischman: Seems to me if we spent a little more money on protecting habitats and on ecosystem, resilience, on maintaining ecosystems, especially rare and declining ecosystems and did that now, we would save ourselves a much greater expense later in trying to go back and trying to recreate habitats that we lost because of inattention.
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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named ‘May It Please The Court’ and I have two books out titled ‘How to Get Sued’ and ‘The Sled’. Well today on Lawyer 2 Lawyer, we’re continuing our series on environmental law where we cover cradle-to-grave treatment of chemicals and our laws on environmental biology.
But today, we’re going to be turning our attention to the Endangered Species Act also known as the ESA. The Endangered Species Act of 1973 provided a framework to conserve, protect endangered, and threatened species, and their habitats, both domestically and abroad. According to the Center for Progressive Reform and an April 20, 2023 hearing of Water, Wildlife and Fishery Subcommittee of the House on Natural Resources Committee, the conservative majority pushed no less than three Congressional Review Act resolutions aimed at blocking ESA protections.
In this episode, we’re going to spotlight ESA, its impact and ESA reform. And to speak more on this topic, our guest today is Professor of Environmental Law Robert L. Fischman from the Indiana University Maurer School of Law.
Rob teaches environmental law, administrative law, public natural resources law, water law, wildlife law, and an advanced environmental seminar. His book on management of the National Wildlife Refuge System has become the standard reference in the field. Rob recently appeared at a hearing of the Water, Wildlife and Fisheries Subcommittee of the House on Natural Resources Committee where he gave his testimony regarding comprehensive reform of the ESA.
Welcome to the show, Rob.
Robert L. Fischman: Thanks Craig. I’m really honored to be here. I’ve listened to a few of your other episodes on the environmental law theme and I’m happy to contribute to that string.
J. Craig Williams: Well we are thrilled to have you and such an experienced 30 years or so in the field, how did you get started?
Robert L. Fischman: Well, I got started generally in natural resources and environmental law by leaping from being a geology major in college to studying natural resource management as a graduate student, went to law school and have always been interested in that aspect of law. That is, it mediates between the words on the page of things like the Federal Register and the U.S. code and actions on the ground like logging activities or land development.
And very quickly with that focus, I at my first job at the Environmental Law Institute began researching issues related to Federal implementation of the Endangered Species Act. So it really is of all the statutes I teach in all of my environmental law classes, the one that I have been dealing with for the longest.
J. Craig Williams: Must have been around a long time back, I think it was around before I graduated from high school when you started to testify before the Water, Wildlife and Fisheries Subcommittee of the House on Natural Resources Committee, tell us about your testimony.
Robert L. Fischman: So that is my most recent testimony and that was specifically addressed to a number of resolutions. The House was considering under the Congressional Review Act. That is a law that allows Congress to use a fast-track legislative process to overturn agency rulemaking as long as Congress acts within a particular period of time, a certain number of legislative days on the Congressional calendar.
And when Congress does enact a resolution and the president signs it, not only does that basically vacate whatever final rule the resolution addresses, but it also prevents the agency from enacting a similar rule. And so it potentially has profound consequences though it hasn’t been much tested in court because Congress has not used it very often.
J. Craig Williams: Well, it seems from reading through some of your testimony that there are specific species that are affected by this Congressional Review Act, or it seems at least to me, that Congress is substituting its judgment for science.
Robert L. Fischman: Well Congress would certainly be substituting its judgment for an agency’s judgment. And the agency exercises its judgment with a big dollop of its expertise, its scientific expertise, but also its policy judgment, right. So it would be what the administrative law wags would call a mixed question of law. In fact, the particular suite of Congressional Review Act resolutions that Congress has recently been considering, dealt with one kind of a broad type of rule of the sort we usually think of when we think of agencies making policy through rules.
It was the Biden’s administration’s rule that revoked a Trump administration rule that defined habitat for the purposes of designating critical habitat under the Endangered Species Act and that’s something we can talk more about. But the other rules are particular types of rules that are authorized by the Endangered Species Act to place certain species of plants and animals on this list, which is the domain of species that receive protection under the act.
So unlike a lot of environmental laws that would define their scope in the statute itself, the Endangered Species Act basically tells the National Marine Fisheries Service and the Fish and Wildlife Service and the Department of Commerce and Department of the Interior to periodically make a rule that places a species threatened with extinction on a list so that the requirements of the act can be employed to protect those species.
J. Craig Williams: So the Congressional Review Act seems low it parsing particular species, I think you referenced a bat and a several other species.
Robert L. Fischman: Right. So two of the resolutions, two or three of the resolutions would have dealt — would have unlisted species that the Fish and Wildlife Service had listed because the Fish and Wildlife Service determined that they were on the brink of extinction. The other rule would – was a broader rule that revoked a Trump administration rule that narrowed the scope of the areas that could be designated as critical habitat for species that have already been listed.
J. Craig Williams: So what’s your suggestion on how to resolve this issue with the Congressional Review Act parsing these individual species out?
Robert L. Fischman: Well I think it’s a very bad idea for Congress to get in the business of listing and delisting species. I think it would be much more productive if Congress thinks that there are systemic problems with over or under regulation for species for Congress to actually amend the Endangered Species Act to provide greater clarity for what the threshold is for a species that may be in decline or species that has lost some of its habitat, what the threshold would be for listing that species for protection under the Endangered Species Act.
J. Craig Williams: You mentioned that there’s been an issue over habitat between the two administrations that were forward now in terms of defining what constitutes habitat. Can you explain that?
Robert L. Fischman: Yeah. So I think to explain it is worth beginning with the observation that species are listed as being in danger of going extinct for a number of reasons. But by far, the most common stressor that is driving a species to extinction is loss of habitat. So there really is nothing more important in the act than those provisions that address loss of habitat. If we can’t address the restoration and creation and maintenance of existing habitat for imperiled species, we won’t ever be able to recover them.
J. Craig Williams: Now you’re using a word imperiled. It’s a little bit different than the statute for that endangered, can you give us a rundown of that?
Robert L. Fischman: Yeah, let me back up. So the statutes called the Endangered Species Act and people often use the word endangered species to mean any species that enjoys protection under the act but those of us in the field often make the finer distinction between threatened and endangered species because the act provides for two levels of protection. So I often use the word imperiled species to describe a type of plant or animal that’s on the brink of extinction.
Now, a species no matter how close to that brink of extinction is not protected under the Act unless or until one of the listing agencies in the Interior Department or the Commerce Department actually promulgates a final rule that lists it as either threatened or endangered.
So, when I use the word imperiled I mean it more broadly. But I think for the purposes of the podcast, we can just talk about endangered species as being more or less congruent to the endangered or threatened species are imperiled species. So because habitat is the principal problem that is driving species to extinction, it’s particularly important to make sure that the services are able to use whatever authority they have to try to promote the conservation of existing habitat and the restoration of new habitat, habitat that may have been lost that can be restored or if the species is experiencing a range change, perhaps creation of habitat in an area where the species was not formally located.
So I’m sure your listeners have heard about how climate change is scrambling a lot of ecosystems, right, some species do well, others do poorly, some species are able to move to more suitable places, others are not and so as climate change increasingly drive species to the endangered species list, it’s going to be more and more important to protect habitat in places where the species historically has not been found.
J. Craig Williams: Right.
Robert L. Fischman: Now, the Supreme Court a few years ago decided a case involving Weyerhaeuser, the big timber company, which owned and leased land in Louisiana and it concerned protection of the dusky gopher frog, a frog that has seen its range shrunk considerably to just one or two locations. The frog is on the Endangered Species Act. Nobody disputes that the frog is on the brink of extinction.
And the question in the case that the Supreme Court addressed is whether the federal government could list as critical habitat, which is a special area designated by the listing agency; in this case, it was the Fish and Wildlife Service as being habitat, that’s essential for the recovery of the species.
The upshot of that decision, which was remanded to the lower courts and settled before the lower courts get decided, the upshot of that decision was the court said, well before the Fish and Wildlife Service can designate critical habitat, it first has to determine whether the land that is being considered for critical habitat is actually habitat for the species.
The Fish and Wildlife Service had never promulgated a definition for what is habitat. The Supreme Court took a stab at it, but as is often the case where an agency hasn’t clearly made a rule, the court chided the agency for not promulgating a definition. The Trump administration took up that invitation and defined habitat, which is a prerequisite for designating critical habitat in a way that would have excluded areas that did not currently have the elements that are necessary for the species.
So in the case of that dusky gopher frog, it needs habitat that has vernal pools, that has these ephemeral bodies of water that fill up in the spring, but that evaporate off in the summer that allows the frogs to breed.
They lay their eggs in the ponds, the eggs grow into tadpoles, but are not eaten up by fish because they’re ephemeral ponds, the fish don’t survive in those areas. The Biden administration revoked the rule on the basis that well that it didn’t make policy sense given that the dusky gopher frog doesn’t have much habitat left. It only has a couple of places that are currently suitable for it to reproduce. So the only way to recover the dusky gopher frog is to create habitat in other places, the Fish and Wildlife Service in that case had thought that the timber lands that were managed by Weyerhaeuser were close enough that with a little bit of work, they would be able to restore those ephemeral ponds.
So, the Biden administration revoked that Trump administration rule that would have prevented services from designated critical habitat in places where a species — in places that were not currently suitable for species but that would be suitable in the future given climate change projections, given some existing technology for doing things like installing transient ponds.
J. Craig Williams: Right, habitat restoration, it’s considered out here in California, the regular remedy for developers to use when they can’t find suitable land. But Rob at this time, we’re going to take a quick break to hear a word from our sponsors. We will be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I am joined by Rob Fischman from the Indiana University Maurer School of Law. We’ve been talking about habitat. In your testimony, you mentioned that there’s a problem with the Endangered Species Act from an overall perspective that it concentrates kind of too late in the process on species that become threatened and then become on the endangered species list before they become extinct.
You offered the idea or a solution that perhaps we had to think about it a little bit sooner than that.
Robert L. Fischman: That’s exactly right Craig. The Endangered Species Act is a kind of emergency room for biodiversity, right. You have species that land in that emergency room because if they’re not treated immediately, they will wink out. They will go extinct. They won’t be able to continue to reproduce.
And just as in the healthcare debate, we often say well, we’d rather not treat chronic conditions like diabetes by letting people’s symptoms get worse and worse until they are driven to the emergency room and then their prognosis are not very good and they can only be treated at great expense. What we like to do is to have preventive health care, which is both less expensive and better for the patient.
We need the same thing for biodiversity. We’ve got this very strong federal law, the Endangered Species Act, which is the emergency room. But we have no other federal legal infrastructure really for seeking to prevent extinctions. We have a little bit of one, which would be the National Wildlife Refuge System.
The original Federal Endangered Species Law enacted in 1966 was a statute that was paired with another statute that provided organic legislation for managing the National Wildlife Refuge System and established a new goal for the Refuge System, which is extinction, prevention for all species, but Congress has done very little since then.
It seems to me if we spent a little more money on protecting habitats and on ecosystem resilience, on maintaining ecosystems especially rare and declining ecosystems and did that now, we would save ourselves a much greater expense later in trying to go back and trying to recreate habitats that we lost because of inattention.
So the Endangered Species Act is a program of last resort, what we need is federal biodiversity protection for first second and third resort, a kind of preventive health for our ecosystems.
J. Craig Williams: You also mentioned that the current system puts an undue burden on those who have chosen to conserve and are sometimes in some instances, the last conservationists for a particular species, when the critical habitat arises on that particular entity or person’s land as opposed to what you’ve just proposed. How can we solve that?
Robert L. Fischman: Well, the preventive approach that I mentioned would go a long way to solving that. I mean part of this problem of the inequitable burden, the disproportionate cost that’s imposed on relatively few people to protect endangered species that benefit us all has to do with the fact that we don’t look to conserve habitat before we are down to the very last few ephemeral ponds for the dusky gopher frog.
If we had federal programs, that monitored and alerted us when those key habitats were in those critical ecosystems were declining, there would still be enough of the habitat left that we can make some trade-offs. That would be circumstances, where if you have an ephemeral pond on your land, you might be able to engage in mitigation either by developing it and mitigating somewhere else, or holding onto it, and gaining some financial benefit because someone else was paying for mitigation before we were at the point where we didn’t have many degrees of freedom and we had to protect every single pond.
And it’s of particular injustice if you think about a landowner who has been a great steward, right, as all of those ephemeral ponds in her neighborhood were plowed over or filled in. The one person remaining in the area who made the ephemeral pond is rewarded by land use restrictions through the critical habitat program.
So I do think there are inequitable distribution of costs in the Endangered Species Act that have to do with cost, doesn’t have to do with the Endangered Species Act being an inappropriate goal, right. I mean, I think most of us would agree that Mollie Beattie, Former Fish and Wildlife Service director said, what a country chooses to save is what a country chooses to say about itself.
The protection of wildlife is a bipartisan and very popular objective. I think where we hit the political impasses is in circumstances where we’ve not been paying attention unless species decline to the point of being at the brink of extinction and at that point we don’t have a lot of flexibility in terms of where we need to turn to find habitats.
So if we kind of stemmed the hemorrhaging of ecosystems earlier, we would, I think a long way, to reduce those inequities. The other way to reduce those inequities of course is for Congress to take greater responsibility for implementing the law that it enacted. The Endangered Species Act imposes costs not just on the Fish and Wildlife Service and the National Marine Fishery Service, which are responsible for the expertise and the listing in the recovery, it also places burdens on any agency that engages in an action that authorizes funds or carries out something that might jeopardize the continued existence of a species or adversely modified critical habitat.
That reaches very broadly across especially Federal Public Land Management agencies but also Federal permitting agencies, like the Army Corps of Engineers, Housing and Highway Building and Funding agencies.
And Congress could reduce with the inequitable costs by providing greater funding to pay for habitat protection rather than just putting it on people who happen to be left holding the bag after many, many years of ignoring warnings signs of species that are imperil.
J. Craig Williams: It’s a great idea, Rob, we’re going to take another quick break to hear a word from our sponsors, we will be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I am joined by Rob Fischman. Rob, we are almost near the end of the program but there’s one part of this conversation we still need to have. And that’s the why, why is it important that we have an Endangered Species Act and that we protect the species that live around us?
Robert L. Fischman: Yeah, well, I think there are different answers to that question depending on the moral basis on which you think that species are important. So for instance, there are a lot of religious people including Christian fundamentalists, who believe quite fervently in what they call creation care. The idea that there’s something in there creed that places a responsibility, a duty on people to maintain the diversity of life that we were born into on Earth.
Other people who are more secular might subscribe to Aldo Leopold’s view of the Land Community that we ourselves, we humans here in the United States and more broadly on Earth are not conquerors, we are citizens, we are citizens of a community and the community is interdependent. Some species depend on certain actions we take or certain restraint that we practice and others, we are dependent on think of all the creatures that play a role in fertilizing our soils or cleaning our waters.
Lot of the legislative history for the Endangered Species Act refers neither to Aldo Leopold nor to Christian Creed. But instead to good old cost-benefit analysis this idea that preventing — the idea that an endangered species is a figurative canary in the coal mine that as species start to disappear, they are giving us clues that the sort of the fabric of life on which we depend are fraying.
One very commonly used metaphor is they are rivets on an airplane that are starting to pop, right. If I told you at the boarding gate that you’re going to go onto a plane to fly across country and one rivet or two rivets were missing, you might say well that’s just one or two. That’s not a big deal. I’ll take my chances. I don’t think that’s going to cause the wings to fall off, that’s not a danger.
But what about when it’s 100 or 200 rivets, right, at what point are we starting to do things in our shorter term interest that undermine our longer term survival, certainly our longer-term ability to thrive.
And so that’s a kind of economic cost benefit analysis that we ought to be aware that species going extinct are giving us clues or signals that we are doing things that may lead us to lose say animal or plant that provides the source of drugs or the source of, in the case of the horseshoe crabs, we use a particular enzyme in the horseshoe crabs to produce vaccines that are safe.
And so there are different justifications for different people. But as I said, it’s bipartisan the Endangered Species Act was the modern version enacted in 1973 with overwhelming votes, 90% or more in both the senate and the House of Representatives. And I think that’s because most of us in our values find some basis for not wanting to soil our own nests.
J. Craig Williams: Exactly so. Well, Rob, we’ve reached the end of our program. It’s like take this opportunity to share your final thoughts and your contact information.
Robert L. Fischman: Well I’d say my final thought is that you and I have spoken almost entirely about federal law and that makes sense. You invited me to come to talk about the Endangered Species Act and I’m happy to do that, but I do want to highlight that state wildlife management is extremely important. Every state has wildlife action plan in which it identifies species of greatest conservation need and I think often overlooked in debates about the Endangered Species Act is the critical role that states play.
State wildlife agencies cumulated together are a much larger source of what are often called, boots on the ground or boots in the water efforts to conserve habitat. They have a lot of expertise, much more than in the federal government, again, cumulatively across states and Congress, the last Congress came very close to enacting would have been a transformational funding mechanism to provide the means for states to do a lot more to address the conservation of those species of greatest conservation need.
So if you’re someone who’s interested in getting involved in efforts to conserve biological diversity and prevent animals from going extinct, don’t look just to the federal government, look to your state laws and your state programs and help to build support for better funding for states to play this preventive role in conserving habitat, and keeping common species and abundant species common and abundant.
J. Craig Williams: Well Rob, thank you very much for joining us today. It has been a pleasure having you on the show.
Robert L. Fischman: Craig, the pleasure was mine. Thank you for the invitation.
J. Craig Williams: Well here are a few of my thoughts about today’s topic. I think that Rob is exactly right that the federal government has looked at this as though it’s a cost-benefit analysis all along. And if you think back to the episodes we’ve been doing in this environmental series, the same can be said for all of our laws regarding chemicals.
It’s to our own health and benefit to get them out of the ground and out of the soil and out of the air around the area that we live in, and prevent them from getting there in the first place. And the same here in the Endangered Species Act, why wait until the last minute when you’re trying to resuscitate a species CPR by saving habitat, that is almost gone.
Let’s start acting sooner. Let’s start funding state and local governments to protect these species and the people who do the conservation efforts on the ground every day to protect them as well.
Well, that’s it for Craig’s rant on today’s topic. Let me know what you think and if you’ve liked what you’ve heard today, please rate us on Apple podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter.
I’m Craig Williams, thanks to listing. Please join us next time for another great legal topic. Remember when you want legal, think Lawyer 2 Lawyer.
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