Open Data for Endangered Species Decisions

Summary#

This bill would change parts of the Endangered Species Act (ESA) to force more public disclosure about how the federal government decides which species are listed as endangered or threatened and to report government spending on ESA litigation. The main goal is to increase transparency about the science, data, and money behind ESA decisions and lawsuits.

Key changes:

• Publish basis for listings: The Fish and Wildlife Service and National Marine Fisheries Service must post on the internet the “best scientific and commercial data available” that form the basis for each final or proposed regulation that lists a species.
• State and DoD exceptions: States can request nondisclosure when state law prohibits release of information. The Secretary must make an agreement with the Defense Department within 30 days to protect classified DoD information.
• Share data with affected States: Before making a listing decision, agencies must provide all data that form the basis for the decision to States affected by it.
• Include State/Tribal/county data: The definition of “best scientific and commercial data available” must include data submitted by State, Tribal, or county governments.
• Publish litigation spending: Interior (with Commerce) must report annually and maintain a monthly-updated searchable online database showing federal spending, case names, attorneys’ fees, staff time, and related details for ESA suits against the federal government.
• Clarify attorney-fee standard: The bill changes the statutory cross-reference for awarding litigation costs to existing general fee statutes.

What it means for you#

• Federal agencies and employees

  • Must post the scientific and commercial data underlying listing regulations online.
  • Must share those same data with affected States before making listing decisions.
  • Must supply detailed litigation spending and staffing data for publication.
  • Could need more staff time for data collection, redaction, and website maintenance.

• States, Tribes, and counties

  • Their submitted data must be treated as part of the “best available” data standard.
  • States can ask the federal government not to disclose data when state law forbids release.
  • States will receive the data that agencies rely on before a listing decision.

• Landowners, businesses, and developers

  • May gain earlier access to the data that agencies use to justify a listing or proposed regulation.
  • Could use that information in planning or challenge decisions.

• Conservation groups and scientists

  • Will have public access to the underlying data for listing decisions, unless excluded by a State or DoD.
  • May face changes in how disputes over data are framed if state or local data are given added weight.

• Litigants and courts

  • Federal agencies must publish detailed information about ESA suits, including funding, staff time, attorneys’ fees, and links to case documents.
  • The bill refers fee awards to existing federal fee statutes. It is unclear whether this changes how courts award fees in ESA cases.

• General public and journalists

  • More documents and spending data about ESA listings and lawsuits would be available online in searchable form.

Expenses#

No publicly available information on a formal cost estimate or fiscal note was provided with the bill.

Possible budget and administrative effects the bill could cause:

• Agencies would likely face increased administrative and IT costs to collect, redact if necessary, and upload the underlying data and to build and maintain a searchable litigation database.
• Agencies may need extra legal, technical, and records staff time each year to produce the annual reports and monthly updates.
• Publishing detailed litigation spending (including disaggregated agency account data and full-time equivalent employee counts) could require internal accounting work and staff time to track and report consistently.
• The DoD agreement and any security reviews to protect classified information could require coordination costs.
• The bill does not include a funding source or specify new appropriations.

Proponents' View#

The bill appears intended to increase transparency and state involvement in ESA decisions. Possible arguments in favor, based on the bill text:

• Making the data behind listing decisions public could improve accountability and allow outside experts, stakeholders, and the public to review the scientific and commercial basis for decisions.
• Requiring agencies to provide the data to affected States before a decision could improve state-federal cooperation and allow States to present additional information or corrections.
• Including State, Tribal, and county data explicitly in the “best available” data standard could ensure local knowledge and information are considered.
• Publishing federal spending and staff time on ESA litigation could inform Congress and the public about litigation costs and settlements.
• Referring fee awards to general federal fee statutes could clarify the legal standard for awarding attorney fees.

Opponents' View#

The bill raises several potential concerns and trade-offs that follow from its design:

• One concern is administrative burden: collecting, redacting, and publishing large datasets and maintaining a searchable database would require staff time and money, and the bill does not fund those tasks.
• The bill could force release of sensitive location or personal data that might harm species or private landowners unless adequately protected. The bill allows some State and DoD exceptions, but it is unclear whether those exceptions are broad enough to protect all sensitive information.
• Requiring agencies to share all underlying data with States before deciding could delay listings or expose scientific data to political pressure in state governments.
• Publishing detailed information about litigation and settlements (including some items even if a settlement is sealed) may affect the willingness of parties to settle or could complicate confidential agreements. The bill does limit its reach by saying it does not override nondisclosure provisions for information not described in the required list, but it nonetheless mandates publication of many settlement-related details.
• It is unclear how the change to the fee-award language will affect court awards in practice; the bill replaces the prior wording with references to general fee statutes, but it does not explain whether courts should change their fee practices under the ESA.