High court decision protecting species may endanger law.

Ruling on what was generally acknowledged to be one of the most important environmental cases in a generation, the U.S. Supreme Court recently confirmed the government's authority to require private landowners to protect crucial wildlife habitats. (Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, No. 94-859 (U.S. June 29, 1995).)

For two decades, the government has been using its power under the Endangered Species Act of 1973 (16 U.S.C. [sections]1531 (1988)) to persuade and compel individual and corporate landowners to protect the habitats of endangered and threatened wildlife. If the Supreme Court decision had gone the other way, that power undoubtedly would have been seriously undermined.

Almost immediately, however, the decision was described as a spur to radical revision of the Endangered Species Act (ESA) when it comes up for renewal in Congress later this year. (Tom Kenworthy, Justices Affirm Wide Power to Protect Wildlife Habitat, Wash. Post, June 30, 1995, at 1.)

Several members of Congress seem intent on making the law more responsive to the concerns of business and private property owners. For example, Senate bill S.768, introduced by Sen. Slade Gorton (R-Wash.), would make it more difficult to list endangered species, make it harder to protect habitats, and leave recovery of listed species optional.

In Sweet Home, a coalition of timber industry interests and small farmers challenged the Department of Interior's definition of "harm" under the ESA. The act makes it unlawful for anyone to "take" endangered or threatened species and defines "take" as meaning to harass, harm, pursue, wound, or kill. In developing regulations to implement the law, the secretary of the interior further defined "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife."

The timber industry group - aroused by restrictions placed on logging private lands inhabited by species like the northern spotted owl - argued that "harm" should mean only direct injury to the species, as might be suffered through the trapping or hunting of individual animals. They described habitat protection as an unacceptably broad interpretation of the act.

The U.S. District Court for the District of Columbia rejected these arguments (806 F. Supp. 279 (D.D.C. 1992)), but the court of appeals reversed (17 F.3d 1463 (D.C. Cir. 1994)).

Justice John Paul Stevens wrote the Supreme Court decision, reversing the appeals court. "Given Congress' clear expression of the ESA's broad purpose to protect endangered and threatened wildlife, the secretary's definition of `harm' is reasonable," said Stevens. "When Congress has entrusted the secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his."

Vic Sher, president of the Sierra Club Legal Defense Fund, has described ESA powers to protect wildlife habitat as "no different than restrictions placed on landowners who want to open a toxic waste dump.... You always require property owners to take care that the activities on their lands don't interfere with the public good." (David F. Pike, Court Upholds Rule Protecting Animal Habitat, L.A. Daily J., June 30, 1995, at 1.)

But opponents charge that the economic impact of the law is not justified by the recoveries made by a handful of endangered species. High-profile recoveries of bald eagles and gray whales have occurred for other reasons - the DDT ban and international whaling agreements.

Opponents of the present law are particularly unhappy because it makes no concession to economics when deciding whether to list a species as endangered or threatened. Opposition to listing can be expressed only on scientific bases. Economic concerns are considered only as part of a proposed recovery plan when one is developed by the U.S. Fish and Wildlife Service.

Landowners whose projects will harm crucial habitats can obtain permits to "take" a species environment, but that process usually means mitigating the loss by setting aside or buying other land to be kept exclusively as habitat. Because this cost is beyond the means of most farmers, there is a growing movement to demand compensation (based on Fifth Amendment prohibitions against government "takings") for property owners who have been denied the use of their land. (Dennis Pfaff, Endangered Law, L.A. Daily J., June 22, 1995, at 1.)

The recent clearcut victory for environmentalists in the Supreme Court was dimmed somewhat by Justice Sandra Day O'Connor, who in concurring noted, "Congress may, of course, see fit to revisit this issue. And nothing the Court says today prevents the agency itself from narrowing the scope of its regulation at a later date." Those could soon be recognized as prophetic remarks.