Dispatches From the “Sue and Settle” Front: Trade Groups Do Not Have Standing to Challenge Settlements Regarding ESA Listing Procedures

Last week, a federal court, for the fourth time, found that property owners’ groups do not have standing to challenge a settlement between the administration and conservation groups under which the administration agreed to make listing decisions under the Endangered Species Act on more the 250 candidate species by 2016.  Judge Emmet Sullivan, who entered the original settlements, ruled that settlements imposing procedural deadlines on the Fish and Wildlife Service did not cause any redressable injuries to the plaintiffs.

The case has been something of a poster child for those complaining about so-called “sue and settle” agreements between the administration and environmental groups.  However, I think that it’s time for the trade groups to give up, move on, and defend, as appropriate, individual listing decisions made by the FWS in pursuant to the settlement.

As Judge Sullivan noted in systematically taking apart each of the plaintiffs’ claims, several courts have already rejected the claims, and the D.C. Circuit Court of Appeals rejected almost identical claims in the context of a Clean Water case as well.  The bottom line is that an agreement by FWS to decide whether to list candidate species does not cause any injury; the plaintiffs still retain their rights to challenge the individual listing decisions.

I also wonder about the big picture.  The standing shoe is often on the other foot.  Regulated entities often rely on standing to keep environmental groups out of court.  Is it really in their interests to expand standing?  I think that this is a sauce for the goose situation.

sauce for the goose

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