Since the Endangered Species Act (ESA) was first introduced in 1973, environmental activist groups – like the Sierra Club and Center for Biological Diversity – have exploited the ESA as a tool to block infrastructure development and further an anti-fossil fuel agenda. In reality, these actions add burdensome costs to federal agencies that cut into the resources available for the species these groups claim to be protecting.
Now, in Texas, anti-industry groups are seeking to replicate this tactic as a way to stanch development of critical energy infrastructure supporting the Permian Basin – the nation’s most prolific energy producing region.
On February 5, a coalition including the cities of Austin and San Marcos, Hays and Travis counties, the Barton Springs Edwards Aquifer Conservation District and several private landowners filed a lawsuit against the U.S. Fish and Wildlife Service (FWS) alleging the Permian Highway Pipeline violates the Endangered Species Act.
The lawsuit – spearheaded by the Texas Real Estate Advocacy and Defense (TREAD) Coalition and funded by trial lawyers officed in Austin – is part of a continued legal effort to stop construction of the pipeline.
However, this strategy is nothing new. Activists have spent years alleging oil and gas activities could potentially harm a listed species in order to increase regulatory burdens on industry and delay or cease energy development. Moreover, ESA abuse has also been used to halt important military trainings and operations, and stop construction of housing projects, highways, hydropower dams, wind farms, and efforts to control coastal erosion.
A 2013 piece by the Washington Examiner Editorial Board describes this decades-old, “sue-and-settle” tactic succinctly:
“First, the private environmental group sues the EPA in federal court seeking to force it to issue new regulations by a date certain. Then agency and group officials meet behind closed doors to hammer out a deal. Typically in the deal, the government agrees to do whatever the activists want. The last step occurs when the judge issues a consent decree that makes the deal the law of the land. No messy congressional hearings. No public comment period. No opportunity for anybody outside the privileged few to know how government regulatory policy is being shaped until it’s too late.”
While these groups claim to want to protect wildlife, they fail to acknowledge that frivolous litigation allocates tax dollars away from the species they claim to want to defend. Dan Ashe, former director of the U.S. Fish and Wildlife Service (FWS), said the agency had $20.9 million allocated for listings and critical habitat in 2011. Of this amount, almost 75 percent was spent on actions related to litigation.
Forced to spend valuable tax dollars on unnecessary litigation, since the inception of the act, the FWS has only successfully delisted 59 of the approximately 2,400 threatened or endangered species because their population rebounded.
In Texas, endangered or threatened species are protected by overlapping layers of federal and state laws. Throughout the state, there are 102 listed species – including plants, animals and fishes, under federal law – and 184 under state law.
Texas oil and natural gas companies are one of the largest drivers of conservation efforts throughout the state, working with local, state and federal authorities to improve species habitat and ensure industry activities have minimal impact. For instance, a coalition of Permian operators donated $4.6 million dollars and partnered with the National Fish and Wildlife Foundation (NFWF) on the Pecos Watershed Conservation Initiative to identify projects to improve species habitat and restore more than 8,000 acres of grasslands and 50 miles of river habitat.
While Texas operators continue to play an important role in the protection and conservation of species and their habitats, frivolous litigation exploiting the Endangered Species Act threatens these efforts, wastes valuable taxpayer dollars and undermines the protection of species in critical need.
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