Secretaries of Interior and Commerce Petition
The Property Owners Association of Riverside County, Pacific Legal Foundation, and several allied organizations submitted a petition on November 10, 2017 to the federal agencies that administer the Endangered Species Act – the Secretaries of Interior and Commerce, U.S. Fish and Wildlife Service, and National Marine Fisheries Service. The petition asked the agencies to initiate rule-making to define the terms “species” and “subspecies” as used in the Endangered Species Act.
The agencies responded to the petition, on November 10, 2021. The agencies declined to act on the petition, and stated that they were compelled by the Endangered Species Act (ESA) to continue using the “best available scientific and commercial data” standard. The standards of review for challenging agency denials of rulemaking petitions are extremely deferential to the government. Therefore, litigating over the government’s denial of the rulemaking petition would be imprudent. Instead, Pacific Legal Foundation will litigate defective taxonomic decision-making in the context of particular ESA listings. The Association suggests that parties interested in participating in this litigation strategy contact Pacific Legal Foundation.
Presently, these terms are undefined by the Act or by regulation. As a result, the listing and delisting process for species and subspecies is a function of arbitrary decision-making, such as with the coastal California gnatcatcher’s subspecies designation. These decisions become a “numbers game,” where a single species is split into multiple species or subspecies, and because each resulting taxonomic unit will have fewer numbers and smaller ranges, each will be at greater risk of extinction, and therefore more likely to be listed, writes Damien M. Schiff, Senior Attorney at Pacific Legal Foundation.
The petition sought to establish definitions for the terms “species” and “subspecies” that are scientifically defensible, legally justified, and politically sensible. The petition recommended that, for “species,” the longstanding and well-regarded biological species concept be adopted, by which a “species” is defined as a group of actually or potentially interbreeding populations that are reproductively isolated from other such groups. For “subspecies,” the petition recommended a variant of the equally longstanding “75% rule,” by which a “subspecies” is defined as a population for which at least 75 percent of its distribution lies outside the distribution of any other population within the same species, based on two or more significant, independent characters of genetics, morphology, or ecological distinctiveness.
The petition recommended that the agencies adopt these definitions, which would have led to scientifically-based, rather than arbitrary, listing decisions and to fewer listings, which in turn would have lessened the Act’s economic impact on property owners. These definitions would have been significant improvements to the current decision-making process, which could have been be further refined as science advances.
The petition would have led to more effective environmental protection, with less regulatory overreach or economic harm. These new definitions would have replaced vagueness and arbitrariness with clarity and consistency, so that listing decisions would have been based on solid science. Regulators would have been better able to focus their attention on species and subspecies that are truly in need of protection. Resources would have been used more efficiently, and land use restrictions would not have been imposed where they are unneeded and unjustified.
The Petition is available at Pacific Legal Foundation.
The agencies responded to the petition, on November 10, 2021. The agencies declined to act on the petition, and stated that they were compelled by the Endangered Species Act (ESA) to continue using the “best available scientific and commercial data” standard. The standards of review for challenging agency denials of rulemaking petitions are extremely deferential to the government. Therefore, litigating over the government’s denial of the rulemaking petition would be imprudent. Instead, Pacific Legal Foundation will litigate defective taxonomic decision-making in the context of particular ESA listings. The Association suggests that parties interested in participating in this litigation strategy contact Pacific Legal Foundation.
Presently, these terms are undefined by the Act or by regulation. As a result, the listing and delisting process for species and subspecies is a function of arbitrary decision-making, such as with the coastal California gnatcatcher’s subspecies designation. These decisions become a “numbers game,” where a single species is split into multiple species or subspecies, and because each resulting taxonomic unit will have fewer numbers and smaller ranges, each will be at greater risk of extinction, and therefore more likely to be listed, writes Damien M. Schiff, Senior Attorney at Pacific Legal Foundation.
The petition sought to establish definitions for the terms “species” and “subspecies” that are scientifically defensible, legally justified, and politically sensible. The petition recommended that, for “species,” the longstanding and well-regarded biological species concept be adopted, by which a “species” is defined as a group of actually or potentially interbreeding populations that are reproductively isolated from other such groups. For “subspecies,” the petition recommended a variant of the equally longstanding “75% rule,” by which a “subspecies” is defined as a population for which at least 75 percent of its distribution lies outside the distribution of any other population within the same species, based on two or more significant, independent characters of genetics, morphology, or ecological distinctiveness.
The petition recommended that the agencies adopt these definitions, which would have led to scientifically-based, rather than arbitrary, listing decisions and to fewer listings, which in turn would have lessened the Act’s economic impact on property owners. These definitions would have been significant improvements to the current decision-making process, which could have been be further refined as science advances.
The petition would have led to more effective environmental protection, with less regulatory overreach or economic harm. These new definitions would have replaced vagueness and arbitrariness with clarity and consistency, so that listing decisions would have been based on solid science. Regulators would have been better able to focus their attention on species and subspecies that are truly in need of protection. Resources would have been used more efficiently, and land use restrictions would not have been imposed where they are unneeded and unjustified.
The Petition is available at Pacific Legal Foundation.