Oklahoma’s attorney general has filed what could become a landmark lawsuit against the U.S. Fish and Wildlife Service, arguing the so-called “sue and settle” procedure for listing animals and plants on the endangered and threatened list violates the federal Endangered Species Act.
Scott Pruitt filed the complaint late Monday on behalf of the state of Oklahoma and the Domestic Energy Producers Alliance (DEPA), a national network of oil and gas companies.
The attorney general charges that “by entering into private settlements with special interest litigants, (the Fish and Wildlife Service) has attempted to circumvent the legislative and regulatory process and make fundamental changes to its (Endangered Species Act)-imposed obligations.”
But this is more than just another green lawsuit. If Oklahoma and DEPA lose their suit, it could have a devastating impact on the U.S. energy boom, halting exploration and drilling on huge tracts of energy-rich land.
In their suit, Oklahoma and the DEPA seek “declaratory and injunctive relief for violations of the ESA.” The relief is intended to overturn designation of dozens of species added to the threatened or endangered list through the “sue and settle” process.
It works by left-wing environmental groups, including the Center for Biological Diversity and Wildlife Guardians, petitioning Fish and Wildlife (FWS) to list a species as nearing extinction and then quickly suing the government to take action.
‘Sue And Settle’
Under the Obama administration, the feds have entered into a consent agreement with the environmentalists to rush forward a judgment on an unprecedented number of species. A 2012 Chamber of Commerce study found record numbers of such “sue and settle” cases under Obama.
The issue has taken on new urgency. Under a March 31 sue-and-settle deadline, Fish and Wildlife is expected to rule that a handful of additional species are endangered — including the lesser prairie chicken.
This colorful bird is found in Texas, Oklahoma, Kansas, New Mexico and Colorado. According to a spokesman at DEPA, “this designation could disrupt drilling and exploration on hundreds of thousands of very promising oil and gas lands in this part of the country.”
In an interview, Pruitt told IBD that “the sue-and-settle timelines force the FWS to make determinations without a thorough review of the science. This violates the original statute requiring sound science before listing species” as endangered.
Pruitt also claims the Fish and Wildlife has broken federal law by “ignoring state and local conservation measures” in the affected states with millions of private and tax dollars invested.
The Energy Producers Alliance, another energy group, charges “sue and settle has been abused, and the process is not in conformity with the federal statute. They simply ignore the science needed to make a legitimate determination” of whether a species is truly endangered.
Private industry also complains that these settlements are often made in cozy behind-closed-door dealings between green groups and the Obama administration, with no representation from state and local officials, or the affected industries.
For the booming oil and gas industry, the Obama administration’s approach to enforcing and adjudicating the Endangered Species Act is a thorn in the side.
Many energy industry officials believe an administration openly hostile to fossil fuel development is using the Endangered Species Act as an excuse to withdraw potentially millions of acres of prime oil and gas lands from production.
Green groups like the Center for Biological Diversity make no secret on their website of their desire to shutdown local oil and gas drilling in order to combat global climate change.
There are currently some 300 species that are now being considered for addition to the endangered species list, thanks to the sue-and-settle racket. In addition to the prairie chicken, the sage grouse, another pheasant that populates the western states, is also under consideration for inclusion on the Endangered Species List.
According to the Resources First Foundation, a group that represents industry interests, “millions of acres of land could be removed from drilling, farming, ranching, and mining” if these birds are designated as facing extinction.
Resources First concedes that the bird populations have fallen in recent years, but primarily because of the Western drought, not private and lawful commerce.
A major energy industry concern is that an endangered listing will effectively quarantine an area from development.
Under one proposed rule, if an endangered bird is discovered it would trigger a four-mile radius habitat protected zone. That means no mining, drilling or farming.
“We are talking about potentially millions of acres being removed,” says Amos Eno, a former Fish and Wildlife official and now president of Resources First Foundation.
“Much of this land,” he warns, “is on private property.”
All of this comes at a time when the oil and gas industry has exploded with growth.
A new study by the Manhattan Institute shows that since the beginning of the recession, almost all job growth in the U.S. economy has been due to the oil and gas industry — thanks mainly to shale drilling technologies.
“These are jobs that often pay, $80,000, $90,000 or even $100,000 a year,” says Harold Hamm, DEPA chairman and CEO of Continental Resources, an energy firm active in the huge Bakken Shale play in North Dakota.
Recently, even Democratic Gov. John Hickenlooper of Colorado, requested the White House to let state and local conservation initiatives take the lead in safeguarding species.
Among the scores of critters under consideration for the ESL are the Panama City crayfish, the moccasin shell mussel and several species of toads. In more than 95% of cases, once a species gets on the endangered list, it never gets off.
Many Westerners remember the 1980s and 1990s when the spotted owl was used all too successfully by the environmental groups to try to shut down the timber industry in Oregon and California.
Many in energy producing states fear the prairie chicken will do to oil and gas development what the spotted owl did to the loggers.
Under President Obama, says Oklahoma AG Pruitt, we have had “sue and settle on steroids. For the good of our state, and our economy, that has to stop.”
It doesn’t take a conspiratorialist to think this is all more about stopping oil and gas development than saving chickens.