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Oil Companies Win, Enviros Lose in Lizard Listing Lawsuit

By Casey C. Sullivan, Esq. on March 02, 2016 | Last updated on March 21, 2019

The Fish and Wildlife Service did not violate the law when it removed the dunes sagebrush lizard from consideration for endangered species protection, a unanimous D.C. panel ruled on Tuesday. The dunes sagebrush lizard had been up for protection for years, but FWS reversed course and stopped considering endangered species protections in 2012, after Texas and New Mexico adopted voluntary conservation measures.

The dunes sagebrush lizard lives in a small area of southeastern New Mexico and Texas, which just happens to be prime oil land. Oil companies had feared that a win for the lizard could hinder oil production in the Permian Basin, the largest oil patch in the nation.

Federal Protections vs. Voluntary Conservation

When an animal is listed as endangered or threatened under the Endangered Species Act, it is subject to a variety of strong protections, including prohibitions on "taking" the species and requirements that federal agencies not jeopardize the continued existence of the species.

The dunes sagebrush lizard almost received those protections. Surveys in 2004 showed the lizards population dwindling. In 2010, after determining that local efforts were insufficient, the FWS proposed listing the dunes sagebrush lizard as protected under the ESA.

But that proposal was reversed just a few years later, adopted Texas and New Mexico adopted voluntary conservation agreements meant to protect much of the lizard's habitat. According to Defenders of Wildlife and the Center for Biological Diversity, two environmental groups, these voluntary agreements didn't measure up. They sued, arguing that the voluntary conservation agreements were "not regulatory mechanisms and are too speculative to ensure the conservation of the species."

Oil's Interest

The environmentalists may have had good reason to be skeptical of the voluntary conservation measures. Oil had reacted strongly to the threat of endangered species protections effecting prime drilling land and they had a major influence on the conservation plans that resulted. Here's how The Texas Tribune described the Lone Star State's conservation measures in 2013:

When Texas promised to protect a threatened lizard in the oil-rich Permian Basin, state officials entrusted the day-to-day oversight to a nonprofit that sounds like an environmental group: the Texas Habitat Conservation Foundation.

What's not advertised is the occupation of the board members who created it.

They are all registered lobbyists for the powerful Texas Oil and Gas Association, also known as TXOGA.

TXOGA represents the interests of Exxon, Chevron, and other major oil and gas companies.

Some saw it as "a case of the fox guarding the hen house," as Jay Linger, a biologist with the Center for Biological Diversity characterized it. For others, it was an important chance to show that the oil industry can protect threatened species, before burdensome federal regulations are needed. The Fish and Wildlife Service hailed the conservation agreement as "a great example of how states and landowners can take early, landscape-level action to protect wildlife habitat."

Not Foolproof, But Nothing Is

The D.C. Circuit, however, was unconvinced by Defenders' and CBD's arguments that the plans were too uncertain to be effective conservation measures. The Fish and Wildlife Service's determinations were backed up with significant evidence throughout the administrative record, the court found. Further, the environmental groups were prohibited to from challenging the policy that allowed the Interior to consider voluntary conservation agreements, the Circuit ruled, since they had waived that argument in district court.

"The Texas plan may not be foolproof, but neither is every regulatory regime," the Court wrote, "The evaluation of the adequacy of the Texas plan involves the Service's judgment based on its expertise and experience. Appellants have failed to demonstrate that the Service was arbitrary and capricious in exercising that judgment to rely on the Texas plan."

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