"The Interior Department's Fish and Wildlife Service has resurrected a Clinton-era tactic known as 'sue and settle.' With this strategy, outside green groups friendly to the Administration sue the government, demanding a particular regulatory action. The agency happily forswears court and sits down with the plaintiffs to reach a settlement."

Fishing for Wildlife Lawsuits
March 10, 2013
Wall Street Journal
By Editorial Board

The Senate last week gave a warm confirmation welcome to Sally Jewell, until recently the head of outdoor equipment company REI and now President Obama's nominee to run the Interior Department. It's a pity the Senators didn't ask what Mrs. Jewell thinks of the Obama Administration's amazing assault on private property. Its weapon is the Endangered Species Act.

The Interior Department's Fish and Wildlife Service has resurrected a Clinton-era tactic known as "sue and settle." With this strategy, outside green groups friendly to the Administration sue the government, demanding a particular regulatory action. The agency happily forswears court and sits down with the plaintiffs to reach a settlement.

The Administration then claims it was forced to take an action that it wanted all along. One more thing: Businesses and property owners most hurt by the settlement are barred from the talks; the public gets no input. Is this a great country or what?

This tactic reached a zenith in Fish and Wildlife's 2011 mega-settlement with the Center for Biological Diversity, WildEarth Guardians, and other green groups over the species act. That agreement allowed Fish and Wildlife to claim it must take action on some 750 species covered by 85 legal actions. The deal's immediate effect was to tee up 250 species for full protection, including sweeping "critical habitat" designations that will restrict commercial or other use of millions of acres of private property.

Among the 750 species is the lesser prairie chicken, a bird whose listing could devastate farmers and ranchers across five states. Oh, and the greater sage grouse, which could shut down oil and gas development and cattle grazing, for starters.

The Administration is also moving to hide the costs of these actions. One of the only smart parts of the species act is a requirement that regulators evaluate the economic impact of designating a critical habitat. That at least gives the public a sense of the costs for businesses and landowners.

The Administration is pushing a rule to dilute these inconvenient economic reports, by moving to what is known as the "baseline" approach. This allows regulators to assume, for purposes of the economic analysis, that the land in question is already subject to a critical habitat designation—and thus worthless for private economic activity. Fish and Wildlife can then claim the only cost of a listing is the cost to the agency itself.

Louisiana Senator David Vitter, ranking member on the Environment and Public Works Committee, has demanded that Fish and Wildlife provide details of its interactions with the suing green groups. The agency refused. Mr. Vitter is calling on Congress to cut off money for the enforcement of these settlements. That's a start.

The 40-year-old law has an undistinguished record of restoring species. Its main effect now is simply to terminate economic activity. Mrs. Jewell could make a mark at Interior by initiating a modernization of the species act, and it's a shame no one in the Senate thought the issue mattered enough to inquire about.