12 October 2012 Facts Matter Posted by: Glenn Sugameli | Leave a comment | Share: Glenn Sugameli, Staff Attorney, Judging The Environment Since 1973, the Endangered Species Act (ESA) has played a vital role in helping to prevent the extinction of our nation’s wildlife treasures, and in aiding their recovery. Fair, independent, and informed federal judges are essential to uphold and enforce the ESA —and other laws that protect endangered and threatened species, clean water, and clean air. In 2001, I founded Judging the Environment, now a Defenders of Wildlife project, to help protect environmental laws, including provisions allowing citizens to sue when these laws are violated, and ensure fair federal judicial nominations. An important part of all this is pointing out and correcting erroneous statements about the Endangered Species Act, and rebutting unjustifiable attacks on the ESA and court decisions. A prime example came up last week in Paul Bedard’s Washington Whispers column in The Examiner, “Scalia slams reach of Endangered Species Act,” which began: As an avid duck hunter and sitting Supreme Court justice, Antonin Scalia knows something about the Nixon-era Endangered Species Act. And what he knows most–the court’s OK of the Environmental Protection Agency’s expansion to cover animal habitat–he considers illegal. “It’s just a terrible interpretation,” Scalia said at a Tuesday event to promote the new book he co-authored, “Reading Law: The Interpretation of Legal Texts.” Bedard erroneously claimed that Scalia was describing “the EPA’s decision to expand the act beyond the ‘taking’ or injuring or killing of endangered animals to protecting their habitat. The expansion led the court before Scalia joined in 1986 to OK protecting the habitat of animals ….” Although Bedard presented Justice Scalia as knowledgeable about the ESA and its interpretation, Bedard’s article on Justice Scalia was just plain wrong on some of the most basic facts. The column was wrong on the agency (it was the U.S. Fish and Wildlife Service at the Department of the Interior, not the EPA), the year of the Court’s decision (1995 not 1986), and even Justice Scalia’s role in this case that interpreted the ESA — he was on the Court at the time, and he wrote a dissenting opinion. But most importantly, Bedard quoted Justice Scalia as mocking the Court’s decision by stating that “Injuring in that context does certainly not mean destroying the habitat. Nobody would think that that’s ‘taking’ an animal.” This is where the facts are most vital, because the Endangered Species Act specifically defines a prohibited “taking” to include “harm.” The Court merely upheld an Interior Department rule spelling out that “harm” includes habitat destruction that “actually kills or injures wildlife.” Marbled Murrelet (Credit: Rich MacIntosh/USFWS) And rightfully so. As I wrote in a letter to the editor, animals, like people, can be harmed or injured by destroying the food and shelter they need to survive. That’s not just my feelings on the matter, it’s scientific fact and essential to protect endangered and threatened species. For example, in 1996, a court of appeals prevented logging in a marbled murrelet nesting area that would likely harm the endangered birds by “impairing their breeding and increasing the likelihood of attack by predators.” Courts routinely decide whether to uphold, strike down, enforce, rewrite, or gut species and environmental protection laws; the 2007 case in which four dissenting justices attempted to rewrite the Clean Air Act to exclude greenhouse gases is just one of many examples. The Supreme Court continues to be narrowly yet deeply split in deciding how to interpret statutes and the Constitution in environmental cases. The fate of the ESA and other fundamental environmental laws depends on courts, and therefore on fair, informed, and independent Justices and judges. So it’s important to set things straight when a Supreme Court Justice’s reported comments leave out vital information and would unjustifiably limit the ESA in a way that would result in extinctions of protected species. According to the ESA, the Department of the Interior and the Supreme Court, preventing injury to endangered animals does mean preserving the feeding grounds, breeding grounds, and shelter they need to survive. In this case, facts matter — and so do habitats. Post Your Comment Click here to cancel reply. Name (required) Mail (required) (will not be published) You May also be interested in California prepares to welcome wolves home, but delays on providing state protections Now, as the U.S. Fish and Wildlife Service proposes to remove Endangered Species Act protection for wolves throughout most of the rest of the country, gray wolves are once again at risk. Delisting would short-circuit wolf recovery in the Pacific West and would effectively mean giving up on one of our country’s most important and iconic species. Fortunately, California has an opportunity to play a meaningful role in helping the gray wolf continue to recover in the coming months and years. I Was There It was a bitterly cold winter morning when the convoy departed down the remote Forest Service road near Salmon, Idaho. Decades after scientists first called for the restoration of wolves in the region, the first four wolves arrived in Idaho on January 14, 1995, thanks to the Endangered Species Act… Victory for Wild Bison in Montana! In a decision that the uninitiated would argue is a painful exercise in stating the obvious, a Montana court last week determined that the wild bison of Yellowstone, an animal that has roamed the continent for millennia, are indeed wild animals.