Sep 182015

An array of environmental and social justice groups called on the Fish and Wildlife Service and National Marine Fisheries Service to withdraw proposed regulations that would add steps to the Endangered Species Act's listing petition process.

In a letter to FWS Director Dan Ashe and NOAA Administrator Kathryn Sullivan, 175 groups said the proposed changes "would impose unprecedented restrictions on the right of citizens to petition the federal government to protect endangered species and exceed the services’ statutory authority."

But "more than that," they said that if made final, "the revisions would set a dangerous, far-reaching precedent that would undermine the rights of citizens to petition the government to vindicate their rights under an array of environmental, social justice, and other laws." The letter continued:

"[T]he fundamental right to petition federal agencies to protect the environment and human communities is particularly important in our modern society because of the federal government’s powers to create uniform national standards and prevent the undue influence of vested interests on state governments. Recognizing this fact, Congress has expanded and strengthened the right to petition beyond what is provided for in the [Administrative Procedure Act] under many laws including the Clean Air Act, the Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA), as well as the ESA."

The most significant change proposed would require petitioners to submit their petitions "to all states where the declining species is found," at least 30 days before sending it to FWS. "The petitioner must then submit any and all information received from a state as an appendix to his or her petition. The petitioner is also required to attach all information received, even if a state is hostile to the petition’s objective — e.g., because it believes that listing a species under the ESA would represent a loss of regulatory control over wildlife within its borders —and even if that information is false or deliberately undermines the petition."

In addition, "The petitioner would also be required to submit (and certify) that s/he has submitted 'all relevant information' about the species that s/he seeks to protect under the ESA, a requirement that would be virtually impossible to meet, and could cost a petitioner thousands of dollars to comply with. If the petitioner fails to comply with these new mandates and incur these financial burdens, the petition would be summarily rejected."

"Nothing in the ESA supports the imposition of such onerous mandates on a would-be petitioner," the groups said in the letter. "Nor does the language of the APA or any other environmental law suggest that a petitioner must submit his or her petition to any other entity prior to filing it with a federal agency. Herein lies the danger: Because the proposal is divorced from all statutory text in both the ESA and APA, it would be a precedent without limitation."

Among the signatories: Center for Biological Diversity, Humane Society of the United States, Greenpeace U.S.A. and Friends of the Earth. But there were many smaller groups, as well -- Juniata Valley Audubon Society, Palm Beach County Environmental Coalition, Reef Relief, Tualatin Riverkeepers and Seven Generations Ahead, to name a few.

The letter follows: