GAO Debunks GOP Claims on Endangered Species Act Litigation – Grijalva Calls for More Honest Debate, Increased Protection Funding

Washington, D.C. – The U.S. Government Accountability Office (GAO) released a report today thoroughly debunking a common Republican talking point on citizen lawsuits and the Endangered Species Act (ESA), prompting Ranking Member Raúl M. Grijalva (D-Ariz.) to call for an end to misleading GOP rhetoric. In a letter today, available at http://bit.ly/2ma0xTn, Grijalva also urges the House Appropriations Committee to increase funding for threatened and endangered species programs at the U.S. Fish and Wildlife Service (FWS).

When FWS or other agencies fail to meet statutory deadlines for making decisions on whether or how to protect a species listed under the ESA, citizen groups frequently file lawsuits seeking to compel a decision. Republicans have long maintained that such suits influence the outcome of agency protection decisions – a claim GAO has now comprehensively rebutted.

The GAO report, available at http://bit.ly/2lkDyjD, clearly shows that lawsuits filed under the ESA after federal agencies miss statutory deadlines do not impact agencies’ decisions on whether to list species, designate critical habitat, or take any other substantive action. The report, which Grijalva requested, reviewed every ESA deadline suit filed against FWS and the National Marine Fisheries Service (NMFS) from 2005-2015 and found that, aside from helping the services set schedules for completing overdue evaluations, the suits and subsequent settlement agreements and court orders “did not affect the substantive basis or procedural rule-making requirements the Services were to follow…or the substance of any rulemaking action to be completed.”

“This report confirms what we have known for a long time: that ESA deadline suits do not force the government to list species. Now it should be clear to everyone that the GOP ‘sue and settle’ conspiracy theory belongs in the garbage along with its claims of global cooling and massive voter fraud.” Grijalva said.” Instead of targeting American citizens and the conservation groups that help them hold the government accountable for breaking the law, Congressional Republicans should adequately fund species conservation efforts so that agencies can actually meet statutory deadlines.”

The funding Grijalva requests in today’s letter to House appropriators would allow FWS to evaluate candidate species for listing and respond to listing petitions within the time frame required by the ESA, thereby reducing the need for deadline litigation. Additional funding would also allow the Service to move beyond its successful efforts to prevent extinction and make additional progress in species recovery – something Democrats and Republicans agree is desperately needed.

Passed by Congress with overwhelming bipartisan support and signed into law by President Nixon in 1973, the ESA is the world’s most important and successful law for protecting biological diversity. Ninety-nine percent of the species that have received protections under the Act have avoided extinction, and 90 percent of all listed species are on track to meet their recovery goals. Section 4 of the ESA requires the Services to protect species that meet certain criteria and to accept, review, and respond to citizen petitions to list or delist species.

The petitions themselves are filed pursuant to the Administrative Procedures Act, but ESA Section 4 sets deadlines for agency action: 90 days to make a finding as to whether or not the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and 12 months to decide whether or not the petitioned action is warranted, is not warranted, or is warranted but precluded by other higher order listing priorities or because the agency is already making progress toward listing or delisting the species. Similar procedures apply for petitions to modify critical habitat for listed species.

The Services maintain, and the GAO report confirms, that even after losing or settling a lawsuit for failing to meet a 90-day or 12-month deadline, the Services maintain all of their discretion under the ESA. However, these citizen petitions and suits are critically important to wildlife conservation as they present new science and force the Services to take a hard look at species that the public feels may need – or may no longer need – ESA protection.

In testimony before the Natural Resources Committee in 2013, former Fish and Wildlife Service Director Dan Ashe stated that settlement of deadline suits “accomplished our objectives of making our listing activities more certain and predictable, and allowing the Service to focus more of our limited resources on actions that provide the most conservation benefit to the species that are most in need of help.”

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