Species Act Can Work Both Ways Supreme Court Rules Environmental Law Can Be Used To Protect Landowners As Well

Landowners and pro-development forces won an important Supreme Court victory Wednesday, as the justices ruled unanimously that the Endangered Species Act can be used in court to challenge, as well as defend, the federal protection of threatened animal species.

The court’s decision levels the legal playing field for pro-development forces and their environmentalist foes, and it represents a setback for the Clinton administration, which had argued for a “one-way” interpretation of the powerful endangered species law.

“It’s a home run for us. It looks like we got everything we wanted,” said Nancie Marzulla of the advocacy group, Defenders of Property Rights.

The endangered species law passed in 1973 and quickly became a powerful tool of the environmental movement, as well as a symbol of excessive government regulation among landowners, developers and conservative think tanks.

The law allows the U.S. government to restrict the development of habitats of such popular vanishing species as the grizzly bear and bald eagle, but it also is used to stop development that threatens obscure fish, rodents, and insects.

The Oregon case decided Wednesday involved the kind of odd-sounding endangered species - two fish called the Lost River sucker and the shortnose sucker - that property rights advocates traditionally have used to make sport of environmentalists.

To protect the two fish species, the federal government has restricted water use in times of drought by Oregon farmers and irrigation districts. The farmers sued under a provision of the law that allows “any person” to file citizen suits. The farmers’ lawyer told the Supreme Court in January that his clients at times lost 80 percent of their water supply, driving down the value of their land to $20 from $100 an acre.

Fifteen states, mainly from the South and West, supported the farmers in their court challenge, as did the National Association of Home Builders, the American Forest and Paper Association, the American Petroleum Institute, and the National Cattlemen’s Beef Association.

The Clinton administration opposed the farmers, arguing that citizen lawsuits under the endangered species law can be used only to challenge “actions that harm the species,” because that was the over-all intent of the law.

Lower court rulings had sided with the Clinton administration, saying that landowners who suffered economic damage did not have standing to sue because they did not fall within the “zone of interests” protected by the endangered species law.

But the Supreme Court rejected that argument Wednesday.

“The Court of Appeals concluded that this test was not met here, since petitioners are neither directly regulated by the ESA nor seek to vindicate its overarching purpose of species preservation. That conclusion is in error,” wrote Justice Antonin Scalia.

“Economic consequences are an explicit concern of the Act,” Scalia said.

Marzulla of the property rights group said property owners and prodevelopment forces now will be free to contest federal officials who seek to safeguard habitats on behalf of endangered species.

“It says ‘any person,’ and it means ‘any person.’ This is a ruling that Congress makes the law, not judges,” Marzulla said.

Environmental organizations had sat on the sidelines in the court battle, because they have long defended and used citizen suits by environmentalists and did not want to challenge that principle. Wednesday, they tried to put the best face on the court’s decision.

John Kostyack of the National Wildlife Federation said his organization welcomed the ruling’s expansion of court access. “When legal standing is denied, it’s usually done to keep environmentalists out of court,” he said.

William Snape, the legal director for the Defenders of Wildlife, hoped the Supreme Court decision might curb efforts among conservatives in Congress to overhaul the endangered species act, which is up for reauthorization this year.

“The moaning and groaning from the far right that the ESA didn’t take into account economic hardship has been shown to be false. This takes away that red herring,” said Snape. “This very clearly puts the onus on those who want to gut the ESA” to find a better reason.

The case is Bennett v. Spear, 95-813.