September 15, 2015
Private: First Amendment Right to Petition Threatened by New Endangered Species Act Proposal
Endangered Species Act, First Amendment
by Jamie Pang, Center for Biological Diversity
The right to petition the federal government for a "redress of grievances" is one of the heralded freedoms guaranteed in the Bill of Rights. This right has been codified by the Administrative Procedure Act, and ensures that any citizen can petition an administrative agency of the executive branch to take a course of action. The ability of citizens to petition the government to make progressive change has been a critical tool under the Endangered Species Act ("ESA"), Clean Air Act, and Clean Water Act, among many other laws. For example, a citizen petition was the precursor of the landmark Supreme Court case Massachusetts v. Environmental Protection Agency, which requested that the EPA regulate greenhouse gases as a pollutant. At its most basic, the right to petition serves as a powerful tool that levels the playing field for citizens and watchdog groups to ensure that environmental protections are not weakened by industry or state governments hostile to progressive change.
This summer, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively the "Services") proposed to severely limit the ability of private citizens and organizations to petition for protection of imperiled species as threatened or endangered under the Endangered Species Act. One of the most troubling aspects of this proposal is a requirement that any individual or organization petitioning to have a species listed under the ESA submit their petition to every state where the species may occur (live) prior to submitting the proposal. Going further, the petitioner must allow each state to respond, refute, or comment on the petition. The petitioner must also append any responsive information provided by a state agency to the petition, without the opportunity to rebut any information that may be adverse to the petition. On a practical level, the proposal essentially gives potentially hostile states that are resistant to federal wildlife protections veto power over the petition. On a constitutional level, the proposal violates the basic right of free speech to the extent that it requires a petitioner to act as a mouthpiece for state data.
The second proposed requirement would mandate that a petitioner gather "all relevant information" regarding the imperiled species and include that information with the petition. This unbounded requirement effectively forces a petitioner to act as if they are an expert government agency and compile an enormous amount of information at great cost. Despite the ESA’s clear instruction that the government has the burden to conduct status reviews of imperiled species, this proposal would burden ordinary citizens with the nearly impossible task of collecting hundreds , if not thousands, of articles, books, reports and virtually everything about the species available on the internet. The petitioner must legally "certify" that he or she has fully complied with these requirements under penalty of law. These broad requirements will likely have a chilling effect on speech. They will dissuade citizens, individual scientists and non-profit organizations from filing petitions to protect species and thereby infringe on the first amendment right to petition.
If enacted, the far-reaching proposal could serve as a dangerous precedent, extending well beyond petitions to protect wildlife. This proposal could serve as a model for other federal agencies to similarly enact restrictions on petitions to make it more difficult to petition the government on a host of environmental and social justice issues, diminishing the effectiveness of public-interest groups across the board. Imagine, for example, before submitting a petition to OSHA asking for measures to address workplace safety, there was a requirement to first submit the petition to your employer or an industry trade group.
The Services are justifying their far-reaching proposal as an attempt to "streamline" the petitioning process. This rationale is absurd, and a slew of diverse public interest groups have already voiced their opposition to these regulations. This proposal stretches far beyond species protections and could lead down a slippery slope. In response to the proposed rules, on September 18, my organization, the Center for Biological Diversity will be submitting public comments and delivering a diverse coalition letter to the Services.
*For further information on the public comments and coalition letter, contact Jamie Pang at: JPang@biologicdiversity.org or 202-347-3737.