Endangered Species Law & Policy

The New York Times recently reported that, in an effort to offset the rising costs associated with the review of federal listing petitions, which must be acted on pursuant to statutorily mandated deadlines set forth in the federal Endangered Species Act ("ESA"), the U.S. Fish and Wildlife Service ("Service") has requested that Congress impose a cap on funds that can be spent responding to ESA listing petitions.  (The New York Times, 3/24/2011, by Lawrence Hurley.)  In the past, environmental groups have been quick to challenge the Service's failure to comply with the statutorily mandated deadlines in court.  The Department believes that a cap would dissuade such lawsuits in the future, as the Service could assert a futility defense:  that is, there simply is no funding to complete the review.  As noted in the recent report by The New York Times, environmental groups have criticized the proposal, asserting that if the Service believes it does not have sufficient funds to address the increasing number of listing petitions, the Service should simply request additional resources from Congress.