By Senator Jeff Sessions, Ranking Member of the Senate Subcommittee on Water & Wildlife
I read with great interest the recent editorial in this newsletter by Chairman Doc Hastings of the House of Representatives Natural Resources Committee. I agree with Doc that the Endangered Species Act (ESA) “needs to be improved so that it can be more effective for both species and people” and that “endless litigation diverts valuable time and resources away from actual recovery efforts.” As the ranking member of the Senate subcommittee with jurisdiction over the ESA, I have grown increasingly concerned about how the worthy goals of the ESA are being imperiled by litigation and government settlements.
I am a strong believer in protecting endangered species. Only California and Hawaii have more threatened or endangered species than Alabama, the beautiful and environmentally diverse state that is my home. We need a science-based endangered species program that prioritizes the smart use of federal dollars and effectively protects listed species. But a dangerous legal trend has recently emerged—agencies charged with setting priorities and defending the law too often agree to court-approved settlements that advance the agendas of activist groups. This unhealthy process is advanced by the requirement that, in certain cases, the U.S. government must pay the activist groups if they win even a part of their claim. The result is that, contrary to our nation’s legal heritage, laws and regulations are expanded or altered far beyond Congress’s express directive, federal conservation priorities are reshuffled, and taxpayer dollars are diverted from species protection to lawyers and special interests groups.
In one recent example, a group sued the Interior Department to force the listing of hundreds of species as endangered or threatened. The agency settled the case and paid the group $128,000, and just months later, the same group filed another petition seeking dozens of new listing determinations and presumably seeking even more in government payments. From 2001 to 2010, the Interior Department made over 230 attorney fee payments “as a result of Endangered Species Act litigation”, totaling more than $21 million. According to the U.S. Government Accountability Office (GAO), one such payment in 2010 exceeded $5.6 million.
I believe there is too much secrecy in these settlements. There is too often collusion. There is too much politics. The “sue and settle” actions can quickly become anti-democratic, leaving the American people unable to fix responsibility for policies being imposed with which they disagree. And taxpayer money is wasted. In the long run, we would all be better served if the nation’s governing principles are followed, and our nation’s imperiled species would be better protected as well.
As a former U.S. Attorney and Attorney General of Alabama, I know it is the duty of government attorneys to vigorously defend lawsuits that seek to force an agency to act prematurely or contrary to law. Collusive settlements by which an agency works with a friendly plaintiff are a direct threat to the rule of law and democracy.
