Sue-and-Settle: Environmental Groups Keep Suing Despite Vast ESA Settlement Agreements

September 29, 2014

(DENVER) - Western Energy Alliance today released a legal analysis of Endangered Species Act (ESA) petitions and lawsuits filed by environmental groups since a 2011 “sue-and-settle” agreement with the U.S. Fish & Wildlife Service (FWS) to make listing decisions on 1,008 species. The Alliance documents how two serial litigants, WildEarth Guardians (WEG) and the Center for Biological Diversity (CBD), continue to sue the agency despite winning the ability to set policy in closed-door negotiations that exclude the public, elected officials, state and local governments, businesses and other stakeholders. In fact, the rate of ESA species petitions is twice as high as before the settlement, revealing that the environmental groups have violated the spirit of the agreement.

Using legal and FWS databases, Western Energy Alliance analyzed petitions and lawsuits filed since the 2011 settlements were reached and discovered that:

  • 46 petitions were filed with FWS requesting listing or uplisting (from threatened to endangered) on 122 species. WEG and CBD were responsible for 34 of the petitions, or 74 percent, covering 109 (89 percent) of the species. 
  • Since the settlements, environmental groups have petitioned FWS to list more than three species per month on average and more than 38 per year. Prior to 2007, the rate averaged 20 per year. That’s about half the post-settlement rate.
  • 35 different plaintiffs filed 29 lawsuits on 97 different species, challenging FWS decisions on petitions and listing determinations. Of those species, 26 were already addressed in the settlement agreements.
  • Between them, WEG and CBD were plaintiffs on 14 different lawsuits challenging listing decisions on 35 different species, or nearly 40 percent of those filed since the settlement agreements.  Of those species, 19 were subject to previous settlement agreements. 

“Lawsuits are a lucrative business for environmental groups since the federal government often reimburses attorney fees at taxpayer expense,” said Jack Ekstrom, chairman of Western Energy Alliance. “Attorneys for the environmental lobby line their pockets and organizations flood the agency with listing petitions for species that are not truly endangered to boost their fundraising. This takes resources away from actual species conservation, and ultimately the American economy takes a hit.

“Sue-and-settle is a great racket: force the government into an untenable situation, sue it for failing to meet statutory obligations, win the exclusive right to negotiate a favorable settlement, and set policy that satisfies only the environmental lobby.”

“Since the Endangered Species Act passed in 1973, it has only managed a two percent success rate, due in part to abuse of the statute. Environmental groups overload the government with far too many listing petitions and then sue for missing deadlines. This diverts resources away from actual species recovery and into litigation and bureaucratic process,” said Kathleen Sgamma, vice president of government and public affairs at Western Energy Alliance.

“Under the Equal Access to Justice Act, these environmental groups with multi-million dollar budgets have been reimbursed millions in attorney fees at the expense of the American taxpayer. The U.S. House of Representatives has passed common sense legislation that would prevent these groups from using taxpayer money to promote policies through litigation that kill jobs and harm the American economy. We urge the Senate to pass this common-sense reform,” concluded Sgamma.

To learn more about Western Energy Alliance’s analysis, visit