Law review on ESA: Reform or Refutation?
Another law review summary from Liz Batres... Brian E. Gray, The Endangered Species Act: Reform or Refutation?, 13 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 1 (2007).
This article discusses the historical context in which the ESA was enacted, current criticisms, and the 2005 house bill that aimed to overhaul the Act. Noting that Congress passed the ESA with overwhelming approval, the author questions whether the law’s participants “and the public understood either the Act or the forces that it would set into motion.” Id. at 2. For example, the Act extended the reach of the federal regulatory power beyond federal lands to private and state areas. Taking a case from each of the last four decades, the article then explains the controversy over the Act.
First, the TVA v. Hill, 437 U.S. 153 (1978) court held that species are “‘to be afforded the highest of priorities,’” which was “a far cry from both the technology-based, cost conscious way in which we seek to protect air and water quality and the multiple use-sustained yield management policies we employ in our national forests and other public lands.”
Second, drawing on the Sweet Home case, the author explains that “application of the Act to regulate land use activities that traditionally have been the province of state and local laws have fostered the political argument that the critical habitat provisions of the statute must be curtailed.” Id. at 13.
Next, in 1992, USFWS settled with two wildlife groups, committing itself to list 400 species over the following four years. Id. (explaining that plaintiffs claimed USFWS “violated its nondiscretionary duty under section 4 of the [ESA] to list species that qualified for protection”). The Clinton Administration, subsequently struggled to comply with the settlement, while “construct[ing] comprehensive species management plans.” Id. at 14. The second Bush Administration then “asked Congress to impose a moratorium on its obligation to list species for protection.” Id. According to the author, this experience suggests that both political parties consider the mandatory section 4 duties as distracting “from the crisis spots and opportunities for creative solutions by continually adding new species that, with limited resources, must be evaluated and protected.” Id. at 15.
The fourth example of controversy is the Klamath River litigation. In 2001, to protect two types of listed Suckers, the biological opinion set a minimum water level for reservoirs in the Klamath Irrigation Project. The result was lack of water for area farmers, who then brought “$1 billion takings and breach of contract claims,” which a court has rejected. This incident stands “as a symbol of the tensions the Act creates between endangered species conservation and private property rights.” Id. at 16.
Next, the article addresses various criticisms of the Act, and analyzes the failed bill that aimed to reform it. Faulting the legislature for devoting too little time to discuss important policy questions, the article foresees "the 110th Congress to consider the challenges and controversies of endangered species regulation." Id. at 29 (urging the legislature to analyze the competing interests of species conservation and private property rights). In addition, the author reasons that a single entity, the USFWS, should control endangered species regulation.
Finally, the article concludes by suggesting the Act and the failed reform bill may "serve as bookends to the public debate over our future endangered species policy."