March 01, 2013

The New Old Grievances Against ESA Citizen Suits

Madeline June Kass

They say, history repeats itself. And so it seems to be with attacks on citizen enforcement of the federal Endangered Species Act (ESA). From almost the beginning, ESA citizen actions have provoked dogged efforts to weaken the statute. In that most famous of environmental stories, the Tellico Dam case, a citizen suit to protect a small fish from extinction not only stalled a major federal dam project, but triggered congressional wrath vented in years of legislative efforts to diminish the statute. See TVA v. Hill, 437 U.S. 153 (1978); Holly Doremus, The Story of TVA v. Hill in Environmental Law Stories110–111 (2005). In more recent decades, periods of deep displeasure with citizen enforcement of the ESA have continued. In the 1990s, ESA opponents and their congressional supporters pursued an extensive campaign directed at eviscerating the act, a campaign at least partially in response to citizen-initiated lawsuits. See J. B. Ruhl, The Endangered Species Act’s Fall From Grace in the Supreme Court, 36Harv. Envtl. L. Rev. 488, 519 (2012); Brennan Cain, Bennett v. Spear: Did Congress Intend for the Endangered Species Act’s Citizen-Suit Provision to be One Size Fits All? 20 Environs 2, 4 (1997). In 2001, opponents again took aim at the ESA. This time the attack took the form of a budget rider embedded in a Department of the Interior appropriations bill. The so-called “extinction rider” sought—but ultimately failed—to constrain citizen suits targeting agency listing and critical habitat designations. See EarthJustice, Citizens’ Guide to the Endangered Species at 45 (2003).

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