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Strategic Dodging Of Esa Listing Determinations, Madeline Kass

Faculty Articles

Endangered Species Act (ESA) listing determinations create a focal point for controversy and litigation. A decision to list can elicit the full force of the ESA’s “pit bull” regulatory authorities and, potentially, result in onerous regulatory constraints on land uses. A decision not to list can continue the status quo and, potentially, result in species extinction. Increasingly, efforts to avoid ESA protective measures include anticipatory efforts to avert, divert, or postpone listing determinations. This article describes some of these “dodging” efforts and whether they are likely to benefit at-risk species.