1 National Waterways National Waterways Conference Conference “ “ When and How to Make a Stand on the When and How to Make a Stand on the Endangered Species Act Endangered Species Act ” ” By By Rob Fowler Rob Fowler Balch & Bingham LLP Balch & Bingham LLP (205)226-8733 (205)226-8733 [email protected][email protected]Houston, Texas Houston, Texas September 26, 2003 September 26, 2003
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1 National Waterways Conference “When and How to Make a Stand on the Endangered Species Act” By Rob Fowler Balch & Bingham LLP (205)[email protected].
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National Waterways ConferenceNational Waterways Conference
““When and How to Make a Stand on the When and How to Make a Stand on the Endangered Species ActEndangered Species Act””
2.2. Know who you are fightingKnow who you are fighting
3.3. Have a reason to fightHave a reason to fight
4.4. Choose the proper battlefield locationChoose the proper battlefield location
5.5. Pick your battlesPick your battles
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““With many calculations, one can With many calculations, one can win [a war]; with few one cannot. win [a war]; with few one cannot. How much less chance of victory How much less chance of victory has one who makes none at all.”has one who makes none at all.”
Sun TzuSun Tzu
‘‘Art of War’Art of War’
Preparation
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Know Who You Are FightingKnow Who You Are Fighting
In most instances, administrative In most instances, administrative appeals and lawsuits brought by appeals and lawsuits brought by environmentalists under the ESA are environmentalists under the ESA are not filed directly with or against the not filed directly with or against the members of the particular industry they members of the particular industry they have chosen to attack. Rather, they have chosen to attack. Rather, they are lodged against FWS. This strategy are lodged against FWS. This strategy is important for many reasons:is important for many reasons:
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Strategy of the EnemyStrategy of the Enemy
Immediately places industry in a weakened Immediately places industry in a weakened positionposition
Provides environmentalists with a friendly Provides environmentalists with a friendly opponent—the FWSopponent—the FWS
Allows FWS to be a “neutral arbitrator”Allows FWS to be a “neutral arbitrator” Allows Environmentalists to choose their Allows Environmentalists to choose their
battlefieldsbattlefields
rfowler
Talk about agenda....not the protection of species..in fact the ESA has been marginally beneficial to the species at best with only a few recovered species.
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A Reason to Fight = StandingA Reason to Fight = Standing
Bennet v. SpearBennet v. Spear: Economic interests : Economic interests equals standing under ESAequals standing under ESA
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Bennet v. SpearBennet v. Spear Expanded Expanded
Alabama-Tombigbee Rivers CoalitionAlabama-Tombigbee Rivers Coalition: “. . . : “. . . the Coalition’s injuries are produced by the the Coalition’s injuries are produced by the coercive effect of the ESA as implemented coercive effect of the ESA as implemented by the FWS or NMFS: federal agencies by the FWS or NMFS: federal agencies andand Coalition members must at least consider Coalition members must at least consider whether consultation is necessary for their whether consultation is necessary for their activities….The ESA establishes a activities….The ESA establishes a framework that is coercive rather than framework that is coercive rather than voluntary.”voluntary.”
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Choose the BattlefieldChoose the Battlefield
The three most important words in The three most important words in real estate are location, location, real estate are location, location, and location. The same holds true and location. The same holds true for environmental litigation.for environmental litigation.
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Pick Your BattlesPick Your Battles
““Pick battles big enough to matter, Pick battles big enough to matter, small enough to win.”small enough to win.”
Jonathan KozolJonathan Kozol19811981
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Pick Your BattlesPick Your Battles
Prelisting (FACA, FOIA, Comments, etc.)Prelisting (FACA, FOIA, Comments, etc.) The Listing (Best available science, critical habitat, The Listing (Best available science, critical habitat,
““No science is immune to the infection of politics and No science is immune to the infection of politics and the corruption of power.”the corruption of power.”
Jacob BronowskiJacob Bronowski
““As soon as questions of will or decision or reason or As soon as questions of will or decision or reason or choice of action arise, human science is at a loss.”choice of action arise, human science is at a loss.”
Noam ChomskyNoam Chomsky
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Best Available ScienceBest Available Science
An 8An 8thth grade boy was doing some research grade boy was doing some research for his career report at school. He asked his for his career report at school. He asked his dad, “Father, how many wildlife biologists dad, “Father, how many wildlife biologists work for the federal government?”work for the federal government?”
The honest father replies, “Oh, I would say The honest father replies, “Oh, I would say at around half of ‘em”at around half of ‘em”
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Alabama-Tombigbee Rivers Alabama-Tombigbee Rivers Coalition v. U.S. Dept. of InteriorCoalition v. U.S. Dept. of Interior
Standing to challenge listing based on consultation requirement
Consultation = economic injury
11th Circuit: “It is conceivable that [FWS’] action [listing the Alabama sturgeon] could have local economic impacts without affecting interstate commerce.”