Air Date: Week of March 28, 1997

The U.S. Supreme Court recently ruled unanimously that people whose economic interests are hurt by Interior Department proposals have a right to sue under the Endangered Species Act. This decision could have a far-reaching impact on the future enforcement of the Endangered Species Act, and other environmental legislation. Patrick Parenteau is a professor at the Vermont Law School and director of its Environmental Law Center. He joins us now from member station W-V-P-R

Transcript

CURWOOD: When the US Supreme Court decided on March 19th to give a group of ranchers and water agencies the right to sue the Federal Government under the Endangered Species Act, private property rights activists claimed a major victory. The ranchers had sued over a government plan to reduce rancher access to water from a reservoir near the Oregon/California border. The government said the move would help protect 2 endangered species of fish. But the ranchers argue the proposal was based on faulty science. The actual merits of the case have yet to be tried. The question before the high court was whether the ranchers had the right to sue, a right lawyers call standing. The Clinton Administration said no: the only ones who have standing to sue under the Endangered Species Act, it claimed, were those who seek more protection of species, not less. But in a unanimous decision, the Supreme Court ruled that the law allows suits from citizens with a wide range of interests. Professor Patrick Parenteau, director of Vermont Law School's Environmental Law Center, says that while the case of Bennett v. Spear does make it clear that property owners have the standing to sue, the ruling, he says, does not mean the suit they filed will prevail.

PARENTEAU: The court made no comment whatsoever on the merits of what the irrigation districts and the ranchers were arguing. And in fact, in looking at the claims that they seek to bring, I can't believe that they're going to be very successful. Now, it's always hazardous to predict the outcome of any litigation but their arguments are of a very technical nature. They're basically arguing that the Fish and Wildlife Service, in effect, was designating critical habitat for these 2 species without going through the proper steps to do so. And that's the kind of discretionary action that I think it's going to be very difficult for the ranchers when they finally get back down to the trial court level, to actually win.

CURWOOD: I'm really wondering how much this decision changes. The review that we did of the law in this area points out that property owners have had the right to sue under the Endangered Species Act. We're thinking of the Sweet Home case, which also wound up in front of the Supreme Court. And there, people who had some woodlands, some timber, were allowed to file a suit under the Endangered Species Act, weren't they?

PARENTEAU: Yes. It's interesting that you mention the Sweet Home case, because in Sweet Home there was no argument based on standing. The standing of the timber industry that brought that case wasn't even challenged. It could have been and that could have been the case that reached the Supreme Court on the standing question. But it was not challenged, and by the time it got to the Supreme Court nobody was raising a question about whether these groups actually had standing.

CURWOOD: Does this decision from the high court mean that the Endangered Species Act is going to be even more bogged down by litigation? I mean, is it just going to get tied up in dockets and legal knots here?

PARENTEAU: Well, certainly from the standpoint of the Fish and Wildlife Service, which is understaffed, under-budgeted in every way, it is going to be a diversion. So yes, in the sense that this opens the door to challenges by industry that seek to slow down the Endangered Species listing process, for example, or anything that the government may be doing on behalf of endangered species, what's going to happen now is that more time of the Fish and Wildlife Service staff is going to go into building better records to defend against industry attack, and then actually being dragged into litigation and having to defend those decisions in the face of lawsuits.

CURWOOD: Some people say that this decision also has an impact in other laws like the tax laws.

PARENTEAU: Well, it could. A lot of tax policy is anti-environmental because it rewards resource consumption, accelerated consumption, or rewards activities that alter wetlands, for example, and alter wildlife habitat. And environmental groups, when they try to sue and challenge, for example, a tax credit -- recently they challenged the tax credit for ethanol -- and the reason they challenged it is because to produce ethanol you have to put a lot more land into agricultural production, and to put more land into agricultural production means you have to convert wetlands or wildlife habitat to crop production. Their case got thrown out; the environmentalists' case got thrown out, on the grounds that they lack standing to challenge and Internal Revenue code regulation creating this ethanol tax credit. I don't know whether the Bennett decision will specifically overturn a decision like that, but at least it gives the environmental plaintiffs an argument that their interests in the environment are every bit as important as the business interest in the tax credit. Whenever the court opens the doors of the courthouse to one set of interests, there are [sic] always another set of interests quick to find entrance as well. And I think that's what this opinion is likely to produce. I think it's going to allow environmental lawsuits to proceed in cases where in the past they might not have.

CURWOOD: Patrick Parenteau is a professor at the Vermont Law School and director of its Environmental Law Center. Thanks for joining us.

PARENTEAU: Thank you, Steve.