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Critical Habitat And The Challenge Of Regulating Small Harms, David R. Owen

David R Owen

This Article investigates how the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on “adverse modification” of “critical habitat.” That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 “biological opinions,” interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, the Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse …