Since the Endangered Species Act (ESA) passed in 1973, it has only managed a 2% success rate, due in part to abuse of the statute. Environmental groups overload the U.S. Fish and Wildlife Service (FWS) with far too many listing petitions, and then sue FWS for missing deadlines, diverting resources away from actual species recovery and into litigation and bureaucratic process.

But what happens when the federal government capitulates to the environmental groups? It enters into closed-door negotiations that exclude the public, elected officials, state and local governments, job-creating businesses, and other stakeholders. Sue-and-Settle is a great racket: force the government into an untenable situation, sue it for failing to meet statutory obligations, win the exclusive right to negotiate a favorable settlement, and set policy that satisfies only the environmental lobby.

In 2011, two serial litigants, WildEarth Guardians (WEG) and the Center for Biological Diversity (CBD) sued on and reached settlements on a combined 1,008 species. Both groups agreed to limit future listing petitions and litigation, but were these agreements made in good faith?

If so, the result should be a decline in petitions and lawsuits, but the reality is the opposite. That’s not surprising–lawsuits are a lucrative business for environmental groups, and since the federal government often reimburses their attorney fees at taxpayer expense, what do they have to lose? Lawyers line their pockets and organizations flood FWS with listing petitions for species that are not truly endangered to boost their fundraising, taking resources away from actual species conservation, and the American economy takes a hit.

Using legal and FWS databases, Western Energy Alliance conducted an analysis of petitions and lawsuits filed since the huge settlements were reached (see the methodology here) and discovered that:

· 46 petitions have been filed with FWS requesting listing or uplisting (from threatened to endangered) on 122 species. WEG and CBD are responsible for 34 of the petitions, or 74%, covering 109 (89%) of the species.

· Since the settlements, environmental groups have petitioned FWS to list more than three species per month on average and more than 38 per year. Prior to 2007, the rate averaged 20 per year. That’s about half the post-settlement rate.

· In a flippant disregard for the spirit of the agreements, CBD delivered a large 53-species petition to FWS less than a year after the settlements were approved, prompting FWS Assistant Director for Endangered Species Gary Frazer to state, “We’re disappointed that they filed another large, multi-species petition.” Such actions continue to make it difficult for FWS to focus on real species recovery.

· 35 different plaintiffs have filed 29 lawsuits on 97 different species, challenging FWS decisions on petitions and listing determinations. 26 of those species were already addressed in the settlement agreements.

· Between them, WEG and CBD have been plaintiffs on 14 different lawsuits challenging listing decisions on 35 different species, or nearly 40% of those filed since the settlement agreements. 19 of those species were subject to the settlement agreements.

Sue the government, get favorable settlement agreements, shut out the public, yet keep suing if 100% of your demands aren’t met. Sue-and-settle: a good deal for environmental activists, a bad deal for the American taxpayer, jobs, the economy and endangered species.

Watch Western Energy Alliance’s video highlighting the sue-and-settle practices of environmental lawyers. This is part of our current campaign on the Greater Sage-Grouse.

The staff of Western Energy Alliance and I are always available to answer any questions about western oil and natural gas development. We’re available at (303) 623-0987 or via email - Ursula Rick, Manger of Regulatory Affairs; Brian Meinhart, Policy Analyst; and Aaron Johnson, Communications Analyst.

Sincerely,
Kathleen M. Sgamma
VP, Government & Public Affairs
Western Energy Alliance
1775 Sherman St., Suite 2700
Denver, CO 80203
(303) 623-0987
(303) 893-0709 fax
ksgamma@westernenergyalliance.org
www.westernenergyalliance.org