When you decide to dedicate your career to environmental advocacy, you know the job will involve tackling some difficult issues and you know many people are going to disagree with you. I think that’s great. The best ideas usually include a variety of opinions and viewpoints. While I welcome a debate on complex environmental issues, a recent op-ed on endangered species protection written by Jerry Patterson, Texas’ current Land Commissioner and candidate for Lt. Governor simply took my breath away. While it’s possible there is more background his comments, it wasn’t included so I took it at face value.
I should start by stating that this post is based on two basic assumptions: 1) ecosystems are extremely complicated and it is often difficult to understand how we are all interrelated; such that the addition or deletion of a species can sometimes lead to extreme, unintended consequences; and 2) every species is important, not only for its part in the greater design, but as an individual unit. Many medicines and other important discoveries have come from the animal and plant world.
Apparently, the federal government agreed with my assumptions when it passed the Endangered Species Act (ESA) in 1973. The express purpose of the act is to “protect and recover imperiled species and the ecosystems upon which they depend.” The law recognizes that the country’s natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” Essential in protecting our natural heritage is the protection of our species. Lately, there has been a tendency to present species issues as a false conflict of people v. critters. It’s false because we need both.
Obviously, there is room for other viewpoints in the conversation; however, the level of vitriol and inaccuracy coming from Commissioner Patterson is worrying. At the very least, it is not conducive to a professional or even civil discourse on the topic. At its worst, it is a proclamation regarding the strictly one-sided approach with which he approaches issues related to species and habitat protection.
What’s Wrong with the Commissioner’s Numbers?
In his editorial, Patterson attacked lawyers and citizens who seek to protect endangered wildlife and their habitat referring the latter effort as a “racket” and calling the attorneys involved “radicals” and “zealots”. In an effort towards full disclosure, I know many attorneys involved in these types of actions (although I know none at the organization mentioned in the piece) and contrary to Patterson’s characterization, they are actually decent, caring individuals who are generally concerned with the direction Texas water and land management is going. They are trying to compel agencies and government officials to adhere to the federal law. They are attempting to speak for those that cannot speak for themselves. I should also add that none of the attorneys I know are in it for the money. A comparison of their fees compared to their industry defending counterparts would quickly disprove that claim.
One important reality overlooked by Commissioner Patterson’s argument is that species are often the canary in the coalmine for us – including property owners. I am afraid to imagine what the Edwards Aquifer and those areas dependent on its spring flow would look like had a court action not required the formation of the EAA and a cap on pumping. I am confident the salamander and other protected species would not have been the only casualty.
Finally, the Commissioner states that the money to pay attorneys has not saved a single species. He provided no specifics to support such a strong allegation so I cannot respond to that directly, but there are ESA success stories. The most famous is the Bald Eagle, but there are many others as well. If the real concern being expressed is the capacity of U.S. Fish and Wildlife to manage this workload with existing resources, that is worth a discussion, but the solution isn’t to ignore threats to species or their habitats.
A Word About the ESA & Habitat Protection
It is important recognize that the protection of species is not a choice. It is federal law. Texas has already gotten crosswise with the ESA. As much as Texas panics at the idea of the federal government taking over state water management, it should be noted that this has never actually happened. Unfortunately, narrow viewpoints such as those expressed by Commissioner Patterson invite just this result.
Often, when people rail against a consequence, they forget the path that got them there. States, such as Texas, are given ample opportunities to make their own decisions governing water resources. This is appropriate since we are in the best position to understand our supply and our needs; however, this power isn’t boundless and there are rules we must play by. One of those rules is to not allow an entire species of animal or plant to disappear forever. That seems like a generous limitation in my opinion. The federal government doesn’t get involved unless the state has failed in their duty.
Protection of habitat is a key aspect of ESA. Without much additional data, it is clear that if you took away our food, water, shelter and ability to reproduce, we wouldn’t last long. The ESA makes it illegal for a person to “take” an endangered species. The definition of “take” includes to “harass” or “harm”. These are defined by the regulations as “any act that creat[es a] likelihood of injury by significantly disrupting normal behavior patterns, including breeding, spawning, rearing, migrating, feeding, and sheltering” or “any act that kills or injures the species, or that significantly modifies or degrades the habitat of a species.” As such, the ESA has extensive requirements to designate critical habitat with the understanding that extinction often happens when a species simply has nowhere to go.
Does the ESA impact individuals and private landowners? Absolutely it can, but so does the disappearance of a species. Further, a quick study of property law reveals that there has never been an absolute right to your property free from any government limitation or interference. These limitations range from the inability to build a mechanic’s shop in your home to the inability to increase the likelihood that a species gets annihilated. The reason for these limits is simple – the good of one cannot and should not outweigh the good of the larger community.
We have to cohabitate peacefully and respectfully, with one another as people, and with the other species that share our planet, because it benefits us to do so. With that in mind, the wise thing to do is to join together to deal with these issues and avoid unsupported name-calling. Otherwise, where one goes, we all go.
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- One Water in Action: Travis County Courthouse - September 20, 2019
