(Also posted on Legal Planet.)
The federal Endangered Species Act (ESA) is a vitally important bulwark in the legal protections for our environment in the United States. The ESA provides essential life support to a wide range of species on the edge of extinction, species such as our native salmon, grizzly bears, and California condors. The Act has helped to bring back species such as our national symbol, the bald eagle.
Of course, there are costs to the ESA. We might lose out on economic development opportunities because of concerns about habitat destruction. The resources we spend on restoring endangered species might be worth spending on other goals. And the ESA regulatory program has its share of paperwork and administrative costs. But when Congress passed the ESA in 1973, it concluded that species protection was generally speaking worth these costs. And Congress hasn’t changed its mind since then.
One of the key provisions of the ESA is what lawyers generally call “Section 7” – it’s the part of the Act that requires federal agencies, when they undertake activities such as development projects, to consult with the agency that implements the Act, the U.S. Fish and Wildlife Service (FWS). The point of that consultation process is to help both the agency proposing to undertake a development activity and FWS to work together to determine what the impacts of that action might be on endangered species. If the proposed action might cause serious harm to the species – what the Act calls “jeopardy” – it is prohibited unless it is changed to reduce or eliminate that harm. Read the rest of this entry »