Damien Schiff, principal attorney at the Pacific Legal Foundation, is emerging as the scariest threat yet to the enviro-litigation industry and its allies in the federal government. One can tell by Big Green’s dismissive obfuscation. The Supreme Court listens to Schiff attentively. He won the Sackett property rights case this March — unanimously, 9-0.
Last week, Schiff filed PLF’s petition to remove the killer whale, or orca, subspecies in Pacific Northwest waters from the federal Endangered Species Act list. The reason? They’re not endangered and they’re not a subspecies.
The petition was filed on behalf of the Center for Environmental Science, Accuracy & Reliability, a nonprofit organization dedicated to scientific rigor in environmental regulations. PLF also represents two farms in California’s San Joaquin Valley, whose irrigation water is threatened by the unjustified ESA listing, which diverts rivers for the killer whales.
The orca was listed as an endangered subspecies in 2005 after a legal fight by the Tucson, Ariz.-based Center for Biological Diversity and the agreement of federal scientists and bureaucrats.
The quarrel over species and subspecies has raged in biology for years. I noted in a previous column that overeager scientists have used the most specious of evidence to proclaim new subspecies. The Pacific Northwest orca subspecies is just one such fantasy beast, whose alleged existence results in regulations on everything from sea kayakers to whale-watching boats. They give eco-babe orca counters something to do, and they inspire cuddly stuffed orcas for sale, orcas with names (like Tilikum, which killed its trainer in 2010), and “educational programming.”
When enviro-litigator Earthjustice heard of PLF’s petition to the U.S. Commerce Department and the National Oceanic and Atmospheric Administration, the response from spokeswoman Kristen Boyles was “This petition is based on make-believe law and made-up biology.”
Boyles nailed her argument with “People up here in the Puget Sound area are working hard to protect our orcas. They mean a lot to us, and that’s what the focus should be.”
Government scientists are likely to go for that. But a similar argument prompted Supreme Court Justice Antonin Scalia to say, “What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?”
Noah Greenwald of the Center for Biological Diversity said PLF had “already lost this argument in front of the Ninth Circuit Court of Appeals.” Well, sort of. Schiff told me that the court gave very little attention to the argument (mentioned only in one footnote) and the decision is unpublished and therefore not precedential. That’s Mr. Greenwald’s best shot.
The Associated Press story was fair to the greenies and said of the Pacific Legal Foundation, “A previous petition by this group failed in 2006.”
But they didn’t say that Schiff was lead attorney in PLF’s successful legal challenge to force the government to make good on its promise to remove the bald eagle from the list of threatened species under the ESA — a promise that was five years overdue.
He was also lead attorney in PLF’s Barnum Timber Company v. EPA, a standing case won in the Ninth Circuit Court of Appeals, and Great Northwest v. Army Corps of Engineers, a Clean Water Act permit case won in federal District Court.
Currently, he is lead attorney in Sackett v. EPA, concerning Clean Water Act compliance orders.
Damien Schiff just keeps going. No amount of bamboozling about him can erase the fact that a genuine, vetted “legal superstar” has emerged to argue for sound science and property rights.
Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.
