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The Hidden Rise Of Efficient (De)Listing, Zachary A. Bray

Zachary Bray

What is the value of the gray wolf, and what might be the costs of including a tiny desert lizard on the list of endangered species? For decades, Congress has formally excluded questions about the economic value of species and the costs of their protection from agency decisions about whether a species should be listed under the Endangered Species Act. Recently, however, a number of federal legislators have sought to incorporate their own ad hoc views about the value of individual species in peril, and the costs of protecting such species, into listing decisions. This goal has been accomplished through …

Beyond The Spotted Owl Problem: Learning From The Old-Growth Controversy, Alyson C. Flournoy

Alyson Flournoy

This Article is a case study of a single controversy that has been raging in the Pacific Northwest: the now infamous dispute over logging in publicly owned old-growth forests and the attendant threat to the northern spotted owl. The spotted owl, confronting extinction, sits at the center of the controversy, but the debate extends far beyond the fate of the owl, raising issues about the intrinsic value of unique and native ecosystems and the long-term consequences of logging practices on our public lands on the one hand, and about the costs of environmental protection and economic transition on the other.

Redressing The Failure Of Environmental Law To Protect Birds And Their Habitat, Mary Jane Angelo, Anthony J. Cotter

Mary Jane Angelo

The Audubon Report indicates that the forty-seven bird species occupying grassland habitats may be at the greatest risk. This category has the highest proportion of species at great risk of extinction. The risk of extinction is also high for shrubland birds. Most shrublands are degraded, and 107 bird species reside in shrubland habitat. Twelve species are of high conservation concern and twenty-four are of moderate concern. One hundred sixty-four avian species occupy woodland habitats. Sixteen of those species are of high concern and another twenty-eight are of moderate concern. For woodland species, the Audubon Report established a declining trend for …

Turning The Endangered Species Act Inside Out, Jud Mathews

Jud Mathews

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings". The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation is …

Day 1: Wednesday, 17 August 2005: Biodiversity And Critical Habitat, Charles Bedford, Federico Cheever, Tim Sullivan

Tim Sullivan

6 pages (includes color illustration). Contains references.

How National Park Law Really Works, John Copeland Nagle

John Copeland Nagle

This article provides the first explanation of the relationship between the three overlapping sources of national park law. It first explains how the Organic Act affords the National Park Service substantial discretion to manage the national parks, including deciding the proper balance between enjoyment and conservation in particular instances. It next shows how federal environmental statutes push national park management toward preservation rather than enjoyment. Third, Congress often intervenes to mandate particular management outcomes at individual parks, typically but not always toward enjoyment rather than preservation. The result is that the NPS has substantial discretion to manage national parks in …

The Effectiveness Of The Endangered Species Act: A Quantitative Analysis, Martin F.J. Taylor, Kieran F. Suckling, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Population trends for 1095 species listed as threatened and endangered under the Endangered Species Act were correlated with the length of time the species were listed and the presence or absence of critical habitat and recovery plans. Species with critical habitat for two or more years were more than twice as likely to have an improving population trend in the late 1990s, and less than half as likely to be declining in the early 1990s, as species without. Species with dedicated recovery plans for two or more years were significantly more likely to be improving and less likely to be …

State Fish Stocking Programs At Risk: Takings Under The Endangered Species Act, Amy L. Stein

Amy L. Stein

Part I of this article provides a brief background to fish stocking practices in the United States, including a discussion of beneficial fish stocking practices, as well as some of the allegations surrounding the detrimental effects. Part II of this article provides some necessary background on section 9 of the ESA, the “actual injury” prong, the “significant impairment” prong, and their application to fish stocking. Part III of this article sets forth recommendations for future clarification and increased consistency on these issues. Specifically, this article supports the use of two rules that can help reconcile the uncertain landscape surrounding a …

Biodiversity And Mom, John C. Nagle

John Copeland Nagle

No abstract provided.

Playing Noah, John C. Nagle

John Copeland Nagle

The biblical story of Noah and the ark has been cited by numerous writers as a justification for the protections contained in the Endangered Species Act. In that story, Genesis reports that God instructed Noah to save two of every species from the flood that would destroy life on earth, and that after doing so God established a covenant with Noah and the animals that were saved. The story has inspired writers and activists to posit a duty to imitate Noah today when we struggle to provide the resources and the will to protect all species, however popular or obscure, …

The Effectiveness Of Biodiversity Law, John C. Nagle

John Copeland Nagle

The Endangered Species Act (ESA) has generated a heated debate between those who believe that the law has succeeded and those who believe that the law has failed. The resolution to that debate depends upon whether the law’s stated purposes or some other criteria provide the basis for judging a law’s effectiveness. Meanwhile, since the enactment of the ESA in 1973, biodiversity protection has received growing attention in the nations of southeastern Asia. So far, the law has been much less effective in protecting Asian biodiversity from habitat loss, commercial exploitation, and other threats, yet southeastern Asia’s biodiversity law has …

The Killing Fields: Reducing The Casualties In The Battle Between U.S. Species Protection Law And U.S. Pesticide Law, Mary Jane Angelo

Mary Jane Angelo

For the past 35 years, the conflicting goals, standards, focuses, and methods of United States species protection laws and United States pesticide law have produced a fierce legal battle. The unwitting casualties of this battle are the millions of birds, fish, and other wildlife that have been killed, and the hundreds of protected species put at risk of extinction. This battle has intensified in recent years, as environmental organizations have sued the United States Environmental Protection Agency ("EPA") for its continued failure to comply with the Endangered Species Act ("ESA"). In response, EPA has invoked numerous legal and regulatory strategies, …

Embracing Uncertainty, Complexity, And Change: An Eco-Pragmatic Reinvention Of A First-Generation Environmental Law, Mary Jane Angelo

Mary Jane Angelo

Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, bird and wildlife species as well as ecosystem services, are in unprecedented decline. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carry out its mission of environmental protection. A number of recently-filed lawsuits assert that the registration of certain pesticides violates the federal Endangered Species Act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, which fueled the environmental movement of the late 1960s and early 1970s, largely have been …

Stumbling Toward Success: A Story Of Adaptive Law And Ecological Resilience, Mary Jane Angelo

Mary Jane Angelo

For decades, scientific and legal scholars alike have promoted the concept of "adaptive management" as a necessary approach to meaningful environmental management, restoration, and regulation. Unfortunately, adaptive management success stories are few and far between. The Lake Apopka Restoration Project provides a real-world illustration of adaptive management at work. This article uses adaptive management theory to explore mechanisms to make environmental law better able to address the uncertainties and changing nature of natural systems to restore and protect ecological resilience.

Incorporating Emergy Synthesis Into Environmental Law: An Integration Of Ecology, Economics, And Law, Mary Jane Angelo, Mark T. Brown

Mary Jane Angelo

Emergy synthesis, flrst developed by Dr. Howard T. Odum in the 1970s, and further expanded and refined by other scholars over the past thirty years, has the potential to transform environmental decisionmaking by providing a methodology that can integrate ecology, economics, and law. Virtually all areas of environmental law are concerned in some way with both the ecological and the economic impacts of environmental decision making. Unfortunately, existing environmental law statutes tend to incorporate ecological and economic considerations in a simplistic, piecemeal, and awkward fashion. Emergy synthesis incorporates both ecological and economic considerations through a sophisticated scientiic methodology. Emergy synthesis …

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Kalyani Robbins

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …

The Snail Darter, The Tellico Dam, And Sustainable Democracy — Lessons For The Next President From A Classic Environmental Law Controversy., Zygmunt J.B. Plater

Zygmunt J.B. Plater

This presentation was the product of an invitation to speak at a symposium for students and faculty from a variety of different non-law departments at the University of Tennessee, where in 1973 I had started what became a six-year legal campaign to divert the Tennessee Valley Authority from impounding the last flowing 33 miles of the Little Tennessee River behind TVA’s Tellico Dam.

Adaptive Management Program Poster, Susan Wainscott

Susan Wainscott

Adaptive Management is the use of evidence-based data and best scientific knowledge to improve management and programmatic actions and to reduce the uncertainty inherent in those actions. This approach is the core of the Clark County Multiple Species Habitat Conservation Plan (MSHCP), which also includes a strong emphasis on transparency in decision making to increase the accountability of the program.

The MSHCP supports an incidental take permit from the United States Fish and Wildlife Service (USFWS). When reviewing the MSHCP and issuing the incidental take permit, the USFWS required certain tasks be completed on a regular or ongoing basis. The …

Recovery Of An Endangered Provision: Untangling And Reviving Critical Habitat Under The Engangered Species Act, Kalyani Robbins

Kalyani Robbins

There has been long-term confusion among courts, agencies, developers, and environmental organizations regarding the legal, environmental, and economic impacts of designating critical habitat for species listed as threatened or endangered under the ESA. At the heart of this difficulty has been a need to understand the degree to which the protections for critical habitat can be distinguished from those for listed species generally. Critical habitat is primarily protected via section 7’s requirement that federal agencies consult with the Fish & Wildlife Service and the National Marine Fisheries Service to determine whether a proposed federal action either jeopardizes a listed species …