Court Upholds Bush Wildlife Policy Limits

Rejecting a challenge by wildlife experts, the Supreme Court upheld a Bush Administration policy Friday that keeps the Endangered Species Act from being applied to U.S.-funded projects overseas.

The 7-2 decision is a victory for the President and his attorneys, but it came at an inopportune time: the day Bush arrived at the Earth Summit in Brazil to fend off criticism of his environmental record.

The ruling dealt environmentalists a far-reaching defeat on two counts.

First, the court said wildlife experts and other environmental activists may not go to court to contest Administration environmental policies, even those which appear to violate the law, unless they can show that the policies have caused them “actual injury.”

Second, the court left intact a policy change engineered by the Ronald Reagan Administration that says federal officials need not consider the impact on an endangered plant or animal before they fund development projects abroad.

In 1989, the Interior Department listed 1,046 animal species as endangered or threatened, 507 of which lived entirely outside the United States.

The ruling again appeared to indicate that the Rehnquist Court is inclined to defer to the wishes of the executive branch rather than Congress. In dissent, Justice Harry A. Blackmun accused the majority of a “slash and burn expedition” that offers an “invitation to executive lawlessness.”

Environmentalists quickly condemned the ruling.

“This is disaster,” said Brian O’Neill, a Minneapolis environmental lawyer. “It says the Administration can thumb its nose at Congress, and it makes it nearly impossible to get into court to do anything about it.”

In defending the policy, Bush Administration lawyers argued that the United States should not use aid funds to try to force “a sort of land-use planning policy” on Third World nations.

At issue was the reach of the Endangered Species Act of 1973. In that measure, Congress set forth “the commitment of the United States to the worldwide protection of endangered species.” The law requires federal agencies to “insure that any action authorized, funded or carried out . . . is not likely to jeopardize the continued existence of any endangered species.”

In addition, Congress authorized “citizen suits” to enforce the law’s provisions. “Any person may commence a civil suit on his own behalf to enjoin any person, including the United States and any other government instrumentality or agency . . . who is alleged to be in violation of any provision of” the Act.

During its first decade, the law was read by federal officials as applying to U.S.-funded projects both here and abroad. Environmentalists said the interagency consultations often resulted in modifying development projects so as to protect the habitats of endangered animals.

But in 1983, Interior Secretary James Watt, a Reagan appointee, proposed a change in policy. From that point on, he said, the Act will not apply to American efforts beyond U.S. borders.

When that policy become final in 1986, several wildlife experts, members of the Defenders of Wildlife, filed a citizen suit in a federal court in Minnesota.

Members of Defenders of Wildlife said dam projects aided with U.S. funds threatened the Nile crocodile in Egypt and elephant and leopard habitat in Sri Lanka.

Acting on the lawsuit, a federal appeals court in 1990 denounced the Administration’s “radical shift” in policy and said it should be revoked. “We believe the Act, viewed as a whole, clearly demonstrates congressional commitment to worldwide conservation efforts,” the three-judge panel said.

Bush Administration lawyers appealed and the Supreme Court reversed the decision Friday in Lujan vs. Defenders of Wildlife, 90-1424.

Without ruling squarely on the merits of the Administration’s policy, the high court said it is “pure speculation and fantasy” to say the Defenders of Wildlife have suffered an injury because of the U.S. policy, Justice Antonin Scalia wrote for the court.

Under the arguments advanced by Defenders, “anyone who goes to see Asian elephants in the Bronx Zoo” could go to court to contest Administration policies affecting wildlife, Scalia said. Such a legal rule would badly undercut the President’s power to enforce the laws, he said.

His opinion was joined in full by Chief Justice William H. Rehnquist and Justices Byron R. White and Clarence Thomas. Justices Anthony M. Kennedy and David H. Souter largely agreed, but said they did not want to “foreclose the possibility” that some environmentalist could challenge some federal policies in court.

Justice John Paul Stevens said he would permit the legal challenge, but nonetheless said he would have upheld the Administration’s policy on the merits. Blackmun was joined in dissent by Justice Sandra Day O’Connor.