Greater Balance for Species Act

Politically, the U.S. Supreme Court’s decision last week on the Endangered Species Act may eventually infuse government efforts to protect threatened habitats and wildlife with a greater sense of balance and credibility. Those characteristics have been sorely absent from the divisive battles that too often have marked planning for the future of this critter or that patch of land.

In the near term, however, the court’s unanimous decision allowing farmers and developers to challenge endangered species regulations, where previously only those who wanted more protection--not less--could sue, may lead to more litigation, higher costs, more controversy and less progress toward habitat protection.

The case centers on a provision in the 1973 Endangered Species Act allowing “any person” to bring suit to enforce its mandate. More than five years ago, during a drought affecting the Klamath River project in southern Oregon and Northern California, the federal Fish and Wildlife Service prohibited the release of water for irrigation from several lakes and reservoirs, insisting the water was needed to protect the shortnose sucker, an endangered fish. Farmers argued that this action adversely affected their crops. They sued, but a federal judge threw out their complaint before trial, saying they were pursuing not enforcement of the law but their economic interest in the use of water.

The high court, in an opinion written by Justice Antonin Scalia, held that access to the court is not for “environmentalists alone.” While the law must protect endangered species it also must “avoid needless economic dislocation.”

There is a note of irony in the words of praise that farmers and developers have for this ruling. Last year, Congress members who had long been frustrated by the scope and mandates of the law sought, as part of an unsuccessful effort to broadly curtail that act, to severely limit citizen lawsuits challenging endangered-species regulations. Now the Supreme Court, relying on that same “any person” provision, has substantially extended legal standing to the act’s critics.

An upsurge of litigation is certain to be the immediate result as environmentalists and developers square off over regulatory actions. Yet such litigation is unlikely to bring the scientific or economic impacts of those actions into much sharper focus since so much remains unknown about how ecosystems work and about the true costs of regulation. As is often the case, the lasting solution is the political one--and perhaps with more viewpoints aired we will get to that point faster.