Restoring the Emergency Room: How to Fix Section 7(a)(2) of the Endangered Species Act

Document Type

Article

Publication Title

Environmental Law

Version

pre-publication

Journal Abbreviation

Env’t L.

Abstract

The two federal agencies responsible for implementing the U.S. Endangered Species Act have for decades interpreted the law to allow federal agency actions to push species incrementally closer to the brink of extinction, as well as permit federal actions that destroy designated critical habitat on a project by project basis. We show that this view of the statute misinterprets Section 7(a)(2)'s ban on federal actions that jeopardize the continued existence of listed species or destroy or adversely modify their designated critical habitat. We also outline a means by which the U.S. Fish and Wildlife Service and National Marine Fisheries Service can remedy this problem and restore the protections Congress intended to afford threatened and endangered species under Section 7(a)(2). This fix is not difficult -- it relies mostly on current regulations and policies, along with modest changes to existing Section 7 regulations. Like an emergency room, efforts to protect imperiled species should focus on immediately halting further declines as the foundation for putting species on a path toward recovery. The current "death by a thousand cuts" approach to species management in the United States urgently needs reform -- a move that would be consistent with so-called 30x30 biodiversity goals championed by the Biden Administration.

First Page

685

Last Page

748

Publication Date

Fall 2022

Comments

The page numbering in the recommended citation is from the final published journal article. The pages in the pre-publication version of the article provided in this repository are unnumbered.

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