Harriet Hageman Asks Expert How 'Threat Of Litigation' Affects 'Science-Based Decisions'

3 days ago

During a House Natural Resources Committee hearing Tuesday, Rep. Harriet Hageman (R-WY) spoke about the threat of litigation affecting agencies to make scientific decisions regarding endangered species.

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00:00for questions, beginning with myself.

00:04Dr. Roberts, how has the threat

00:06of litigation impacted a federal agency's decision

00:10to delist a species?

00:12Thank you for the question, Chair.

00:15I believe that the threat

00:17of litigation creates fear in agencies moving forward

00:22with delisting decisions.

00:24I think it unnecessarily delays those decisions.

00:28Lawyers like to be in court.

00:30Biologists don't want to be in court.

00:32And so I believe that it slows down

00:34that process, unfortunately.

00:36Well, how would prohibiting judicial review

00:40within the post-delisting five-year monitoring period help

00:44with science-based decisions?

00:48I believe that that would help,

00:52because in that five-year delisting period,

00:55that's a required monitoring period.

00:57For most of these issues, or all of these issues,

01:00we're very concerned about the long-term trajectory

01:03and populations, not a change one year to the next.

01:07So we're interested in how a trajectory is changing.

01:10And it takes time to see that.

01:12And so that five-year period, I believe, is appropriate,

01:16the five-year monitoring period.

01:18Removing it from judicial review allows those situations

01:21to play out.

01:22I think it's important to note

01:23that the minimum population goals that are established

01:29by Fish and Wildlife Service and enabling delisting are set

01:33sufficiently high that they can be resilient

01:37to some unforeseen circumstances,

01:39thus limiting the need to respond through litigation.

01:46Well, that resiliency has been shown

01:48with both the gray wolf population

01:51and the grizzly bear population in Wyoming.

01:53I think both of those species are an example

01:56of how state management actually works

01:59to protect a recovered population

02:04and shows the resiliency that you're talking about.

02:07Isn't that correct?

02:08Yes, I would say so.

02:09There may be some debate about the particular methods

02:14that are used in those states.

02:15But we need to remember the Endangered Species Act is

02:17focused on preventing an animal from going extinct.

02:21That is the purview of the Endangered Species Act.

02:24And it is clear that wolves and grizzly bears are not

02:28in danger of extinction in the northern Rocky Mountains.

02:31Mr. Guardado, the issues you have raised today are a perfect

02:34example of how local agency bureaucrats are able

02:38to place mandates on the operations of infrastructure

02:42that has billions of dollars in direct

02:44and indirect economic impacts with little or no approval

02:48from political appointees or Congress.

02:50How does providing a clear and consistent definitions

02:53for terms such as environmental baseline create more certainty

02:58for the communities you serve and limit the discretion

03:01of agency bureaucrats?

03:03Well, thank you.

03:04Well, as a result related to the environmental baseline,

03:08in our particular case, we have a Freeman diversion.

03:10And rather than just separating out the status of the species

03:14and using that as the baseline and the existing operations,

03:17a compilation of that baseline along with future operations

03:21and a future project are tacked on,

03:23which make it virtually impossible

03:25in its current state to achieve any type of requirements.

03:29Right now at the Freeman diversion, we have a situation

03:32where the National Marine Fisheries Service has a preferred

03:35legacy project of their own, which is a price tag

03:38of about $250 million,

03:41which imagine a concrete platform the size

03:44of a football field in the middle of a river,

03:46wiping out existing ecosystem

03:49when we have another alternative that's about $20 million

03:53that meets all of the design criteria,

03:55all of the species criteria,

03:57to ensure that it's not only protected

03:59but it has a viable recovery state.

04:02So these are clear examples where, you know,

04:05the amendments here in this ESA, it's not to dissolve the ESA.

04:09It's to improve it, to provide clarity

04:12so that we can actually move projects forward

04:14and save the taxpayers a lot of money.

04:16I think one mistake that people make is

04:19that when a species is delisted or downlisted,

04:23there is continuing management and monitoring.

04:26In fact, one of the factors for delisting is

04:28that there must be an adequate regulatory mechanism in place

04:32to protect that species into the long term.

04:35So when the gray wolf in Wyoming, for example,

04:38was delisted, the state of Wyoming has taken

04:41over the monitoring and the management and been able

04:44to protect a recovered population

04:47for literally decades at this point.

04:50So I appreciate your comments and your testimony

04:53and the insight that you bring.

04:55I now will call on

Harriet Hageman Asks Expert How 'Threat Of Litigation' Affects 'Science-Based Decisions'

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