When Texas Attorney General Greg Abbott acted swiftly against a federal court ruling this month that sought greater protections for the endangered whooping crane, he was opening the latest front in a long-running battle between state officials and the federal government over property rights and the Endangered Species Act.
Abbott’s request for an emergency stay in the case was “as much a political document as a legal one,” said Jim Blackburn, a lawyer who represented an alliance of Gulf Coast environmental and business interests in the case.
Abbott, after all, may mount a campaign for governor in 2014, and, along with fellow state Republican leaders eying higher offices, has made endangered species protections Exhibit A in the evidence of federal overreach.
Last year, Land Commissioner Jerry Patterson, who might run for lieutenant governor, attached himself to an endangered species issue in West Texas; state Comptroller Susan Combs, who might also run for lieutenant governor, described endangered species proposals as “incoming Scud missiles” at a conservative legislative confab in January; and Agricultural Commissioner Todd Staples, another potential lieutenant governor candidate, testified before a congressional committee in 2012 that the Endangered Species Act has “been used to accomplish the goals of radicals and those seeking to expand the reach of government.”
Criticism of the act, which was signed into law by President Richard Nixon in 1973, fits nicely into a Texas conservative narrative about heavy-handed Washington lawmaking. In recent years, disputes over the potential listing of a West Texas lizard, cave-dwelling insects in the Edwards Aquifer and salamanders in Williamson County have led to a collision of environmental protection and private property rights.
“The Republican Party is the party of small government and less interference from the feds,” said Patterson, who had argued, along with industry interests, that the dunes sagebrush lizard would disrupt oil and gas work in West Texas, thus potentially robbing the state of royalties on its land. (The lizard ultimately didn’t land on the endangered list.)
Fighting certain species proposals “is not only the politically advantageous thing to do — it’s the right thing to do,” he said.
The species listings are often proxy battles over the fate of development. In Austin, for example, the listing of Hill Country songbirds as endangered has led to some building restrictions. In the mid-1990s, then-Sen. Kay Bailey Hutchison, R-Texas, fought to delay the listing of the Barton Springs salamander over concerns that development could be restricted.
In the whooping crane case, U.S. District Judge Janis Jack ruled this month that the state must come up with a conservation plan for the whooping crane that ensures enough water remains in the Guadalupe River, whose basin includes San Marcos and New Braunfels, to sustain the cranes’ habitat in San Antonio Bay.
Given that all the river’s water is already spoken for, the ruling suggests the state will have to reallocate existing water-use rights in the basin.
The Texas Chemical Council joined the state environmental agency as a defendant in the case. Industries that tend to give more to Republican campaigns — oil and gas refiners, industrial manufacturers, utilities, homebuilders — have frequently opposed endangered species proposals.
On Wednesday, Abbott filed an emergency stay request with the 5th U.S. Circuit Court of Appeals, arguing that Jack’s ruling will harm farmers, ranchers and communities along the Guadalupe and San Antonio rivers.
“Anytime you have an issue that implicates the federal government increasing its entanglements in concerns of the state, that’s something people get concerned about,” said Josiah Neeley, a policy analyst with the conservative Texas Public Policy Foundation, which works closely with Texas officeholders.
The state had the opportunity more than a decade ago in the whooping crane case to take action to steer clear of federal entanglement.
In 2000, the San Marcos River Foundation, using calculations prepared by state staff, sought the rights to an enormous amount of water in the San Marcos and Guadalupe rivers — they sought more water than Lake Travis holds — with the goal of keeping the water in the rivers to protect wildlife and recreation.
But because of opposition from the Texas Commission on Environmental Quality — the very agency Jack excoriated in her opinion on the whooping cranes — court rulings, and, ultimately, legislative action, the foundation was stymied.
“We warned them 10 years ago,” said Dianne Wassenich, program coordinator of the foundation. The habitat conservation plan ordered by the judge is a sensible solution she said.