Major new allies join ESA fight

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For many years, agriculture fought estate taxes – eventually calling them death taxes – because of their pernicious effects on family businesses and succession. It wasn't until home prices and the values of general family businesses increased enough to bump up against tax limits that the issue gained serious political traction. Agriculture joined with small business groups to make major inroads on the death tax.

The Endangered Species Act (ESA) is another prime example of overreaching federal government power, drawing opposition from the timber industry and agriculture early on.

Years ago, the Northwest timber industry warned that the ESA and the spotted owl restrictions would put it out of business and decimate the region's towns and communities. Little mercy escaped from federal agencies or Congress and the timber industry's predictions came true, devastating whole regions in the Pacific Northwest.

Western livestock operators have railed against the restrictions and costs the ESA forced on them for decades. Livestock groups, key legal groups and certain intrepid individuals have fought battles against ESA's efforts to restrict and eliminate private property rights, while the gathering storm threatened extinction of the western livestock business.

Now, it is encouraging to see a state and another industry group join the fight. With many American voters finally beginning to doubt man-made global warming, grasping the costs added to their gasoline and energy bills by government global warming prescriptions and favoring using our country's energy resources, a new ESA battleground is opening up.

The Oklahoma attorney general has filed suit against the U.S. Fish and Wildlife Service (USFWS) on behalf of the state of Oklahoma and the Domestic Energy Producers Alliance (DEPA) over its practices for listing animals and plants under the ESA Act ("A Chicken Endangers Boom in Oil and Gas," Investor's Business Daily, 03/18/14).

I've covered before the technique activist groups use to achieve their goals –  manipulating the courts to force government agencies to do what the groups want. Activist groups meet with like-minded bureaucrats within government agencies and decide together what they want to accomplish. Then the activist groups sue the government agency for not having done it already. They pick a court venue they believe will be favorable to their viewpoint. If they get the court ruling they want – to "settle" the case – the federal agency works out a private agreement with the activist groups (affected industries and communities not participating) to agree to do what it wanted to do all along – but for which it didn't have statutory authority.

In this case, the general technique is adapted and termed "sue and settle," wherein environmental groups petition USFW to add a species as nearing extinction and then quickly sue the government to force action.

Some of these groups put together listing machines, petitioning to add hundreds of species to the endangered list in recent years. They have boosted their efforts under the Obama administration to record levels, according to a 2012 U.S. Chamber of Commerce study.

Under a recent "sue and settle" deadline, the USFWS ruled on additions to the threatened list. The Service announced plans to list the lesser prairie chicken as a “threatened species” under the ESA.  The bird is found in Texas, Oklahoma, Kansas, New Mexico and Colorado.

DEPA is concerned because "this designation could disrupt drilling and exploration on hundreds of thousands of very promising oil and gas lands in this part of the country."

This is just one species. There are some 300 species being considered for the list. The IBD article said energy officials fear this administration could use the ESA to withdraw millions of acres of prime oil and gas lands from production. What’s more, once a species is listed, it’s next to impossible to get them de-listed, thus, the land remains needlessly locked up for years.

The sage grouse is also under consideration.  Its listing would  remove millions of acres in 11 states from use by ranchers, farmers, miners, drillers, road building and water projects. The combination of listing the prairie chicken this year and the sage grouse next could subject private property to "some of the most invasive private land-use rules and property acquisitions in the history" of ESA, according to a Wall Street Journal editorial ("Sage Grouse Rebellion," 03/11/14). According to that article, the USDA Natural Resource Conservation Service estimates that between them, the birds' habitat includes 50-100 million acres.

Much of the land in question is private property. Up to now, immense amounts of the regulatory damage by ESA have been done on federal lands. The government owns nearly half the land west of the Mississippi and higher percentages in some states.

The “sue and settle” scam the environmental activists have been utilizing is ingenious because it usually bypasses the normal scientific review process. The Energy Producers Alliance charges the method "is not in conformity with the federal statute," according to the IBD story. 

The Oklahoma lawsuit gets specific, charging that, "by entering into private settlements with special interest litigants, the (USFWS) has attempted to circumvent the legislative and regulatory process and make fundamental changes to its (ESA)-imposed obligations." 

The suit asks for declaratory relief and injunctions, intended to overturn ESA listings for dozens of species.

The IBD story noted a Manhattan Institute study that showed since the beginning of the recession, almost all U.S. job growth has stemmed from the oil and gas industry. The environmentalists are desperate to stop that growth, as illustrated by their ESA activities and opposition to the Keystone XL pipeline.


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