On April 21, 2014, IPAA and a coalition of regional and national oil and gas trade associations filed their principal brief in Defenders of Wildlife v. Jewell – a lawsuit brought by group of environmental plaintiffs in the United States District Court for the District of Columbia against the U.S. Fish and Wildlife Service (“FWS” or “the Service”) challenging the Service’s decision to not list the dunes sagebrush lizard (“DSL”) as an endangered species under the Endangered Species Act (“ESA”). IPAA and its coalition of trade associations successfully intervened in the action to defend the Service’s decision because their members are significant landowners and leaseholders in the DSL’s range (the Permian Basin), and because those members were working to conserve DSL habitat through voluntary programs. The brief filed on April 21st was our first meaningful opportunity to provide the court industry’s arguments why the Service’s decision to not list the DSL was both appropriate and defensible.
The environmental plaintiffs sued FWS because the Service had originally proposed to list the DSL as endangered under the ESA. After that proposal, FWS was presented new information about DSL range and abundance, and about conservation measures in place to protect the DSL and its habitat. Many of these voluntary conservation measures were implemented by IPAA members before the proposed rule or significantly expanded by the participation of IPAA members following the publication of the proposed rule. Indeed, by the time FWS was set to make the final listing determination, IPAA members helped secure protections for over 85% percent of DSL habitat. Because potential habitat fragmentation and degradation were the only real potential threats to the DSL, FWS had little choice but to determine that the DSL was no longer endangered and to withdraw its initial proposed listing.
The environmental plaintiffs, however, argued that the withdrawal was illegal and inconsistent with the ESA and the Administrative Procedure Act because it relied on voluntary conservation plans that were uncertain to be implemented and effective. The brief filed by IPAA and its coalition explained how these voluntary measures imparted meaningful protections to the DSL and its habitat. We explained in great detail how these voluntary conservation programs were both comprehensive and structured to provide measurable benefits to the DSL and its habitat. Finally, IPAA’s brief explained why it was entirely proper for FWS to work with private landowners and the states in furtherance of conservation. Listing under the ESA is not the only means of protecting species – and in many ways it is a very poor way of protecting species, given that the majority of the conservation funds that would generally be provided to protect a species listed under the ESA are unfortunately diverted to defending lawsuits from the environmental plaintiffs. Industry’s conservation efforts on the DSL were effective and provided a high-profile example that working with states and industry can benefit conservation far better than command-and-control regulation through the ESA.
The environmental plaintiffs are understandably worried when the FWS allows effective alternatives to the statute that the plaintiffs have so effectively used to constrain development, but their concern is more about their own loss of leverage – not conservation. IPAA appropriately informed the court that FWS has ample discretion to consider industry’s voluntary efforts and, given the state of conservation and conservation budgets, the court should allow such discretion and encourage such efforts. This is an important fight – not just for the DSL, but for the future of voluntary conservation programs.
The environmental plaintiffs reply is due May 5, 2014. IPAA’s reply is due May 29, 2014.
