WHO'S DRIVING THIS BUS?: Gayle Norton's Right To Set The Agenda For Enforcing The Endangered Species Act

By BARTON ARONSON

Friday, Apr. 20, 2001

The Bush Administration recently proposed setting limits for the next fiscal year on the Department of the Interior's obligations with respect to citizens' suits involving the Endangered Species Act (ESA). Secretary of the Interior Gayle Norton claimed that the budget for enforcing the ESA had been overwhelmed by the suits, and that Interior (and Commerce, which also administers the ESA) had lost control over the enforcement of the statute.

[Endangered Species]

The uniform response to this announcement in America's newsrooms was outrage. The Kansas City Star's April 17 editorial was typical: Gayle Norton, the paper huffed, "wants to set her own priorities for when — or if — to add species to the lists of threatened or endangered plants or animals."

How Citizens' Suits Work

Private citizens and organizations play an unusually large role in protecting our air, water, and land. Starting with the Clean Air Act, Congress has routinely provided for so-called "citizens' suits" with respect to the environmental protection laws. Concerned that federal agencies would not aggressively enforce these laws against powerful polluters and developers, Congress allows these private suits to level the playing field.

Here's how it works. A citizen's suit can get a court to order an agency to do something it is obligated to do, but might choose not to if left to its own devices (and the pressure of political heavyweights, like manufacturers or developers). Citizens' suits are particularly effective in the environmental area, because many environmental laws — unlike many other types of regulation — severely limit the government's discretion.

For example, the ESA requires the Secretary of Interior to list as endangered any species that meets certain criteria. If the Secretary decides not to list a species anyway, despite this obligation, a citizen can sue to force her to do so.

Compare this to the criminal law: while Congress has defined, say, the crime of bribing a federal official, the Attorney General has unfettered discretion in deciding whether to prosecute someone for that crime, no matter how strong the evidence is that the person has in fact committed it. A citizen cannot sue Attorney General Ashcroft to force him to prosecute.

Why Citizens' Suits For the ESA Make Sense

Citizens' suits have played a prominent role in enforcing the ESA. For example, they have been critical in the decisions to "list" (that is, designate as threatened or endangered) hundreds of species; to specify the habitats that are critical to a species' survival; and to prevent countless land uses that would threaten species that are listed.

This is due to the unusually draconian nature of the ESA. The Supreme Court has said that the showing required to prove that a proposed project impermissibly threatens a listed species is fairly minimal. Thanks to the ESA, a rare fish can stop a major construction project cold.

If we're serious about protecting endangered species, then citizens' suits make sense in the ESA context — maybe more than they do in the context of most environmental statutes. After all, if you want to pollute the air in the L.A. basin even further, there are millions of angry breathers who can hire lawyers to descend on Washington, D.C. to persuade the federal government to block your project. But Northern Spotted Owls are hard to find (they're endangered, as it happens), and even when you can find them, they can't hire lawyers.

Whose Enforcement Priorities Should Rule?

The cost of protecting a species plays no role whatsoever in deciding whether to protect it. But that does not mean the budget for administering the ESA is unlimited; far from it. Interior and Commerce have budgets, just like all other agencies, and Congress cannot change that fact by limiting an agency's discretion. It's an eternal law of government: Enforcing the ESA is a matter of allocating limited resources, and always will be.

We have to make choices when it comes to protecting endangered species. How? There's a lot to do: species have to be listed (or not); critical habitats have to be designated; federal building projects have to be reviewed for compliance; and countless private projects have to be scrutinized for harm to species. The Bush Administration's proposal would give the government relief for one budgetary year from having to comply with orders that are the product of new citizens' suits (existing orders would not be affected).

Perhaps we should be concerned with the most threatened species first. Or perhaps certain species are more critical to biodiversity, or to the survival of certain valued ecosystems, than others. Making these decisions is just what you'd think Gayle Norton was hired to do, the outrage of the chattering classes notwithstanding.

The Bush Administration's complaint that it has lost the ability to make these types of decisions is hardly partisan. The Clinton Administration expressed similar frustration. Because the government has to respond to the citizens' suits, and because budgets are not unlimited, spending on the ESA is now driven largely by the priorities of private litigants — not those of the government charged with enforcing the statute.

This is a lot like depriving a police department of the power to decide how to handle crime. The department may have a crime control plan involving heavy patrols in areas experiencing a lot of crime. But if the law requires them to respond to every 911 call immediately, there won't be any cops left to patrol the hotspots. The department's crime control plan will have been hijacked by a group of uncoordinated private citizens with personal agendas. Every 911 call is important, of course (no one is suggesting environmental groups are purposefully wasting the government's money), but responding to all 911 calls is not a successful police strategy. In fact, it's not a strategy at all.

A citizen's suit may be brought by a local community that opposes a specific project, or by environmental organizations with interest in either a specific part of the country or a specific species. What every private litigant lacks, from the Sierra Club on down, is any form of public accountability. Private litigants have no obligation to see the big picture and recognize that serving their needs necessarily means not serving someone else's — which may be more important.

Outcry over Gayle Norton's desire to "set her own priorities" looks a lot less plausible in this light. Environmentalists may not like Norton, but she was appointed by the President and is subject to Congressional oversight. She administers a limited budget, so rigorously applying the ESA here means not applying it there. Since enforcing the law will necessarily require using someone's priorities, it makes a lot more sense to give some deference to hers.


Barton Aronson, a FindLaw columnist, is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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