Volume 20, Issue 2 (Spring 2014)
Daniel J. Rohlf
Michael C. Blumm & Kya B. Marienfeld
The Endangered Species Act (ESA), with its reputation as the nation’s strongest environmental law, might be expected to impose some limits on greenhouse gas (GHG) emissions adversely affecting listed species due to rising global temperatures. Although the federal government recently conceded that some species warrant listing because of climate change, the accompanying listing decisions revealed a federal refusal to apply the ESA to constrain GHG emissions. In this Article, we explain those decisions—involving the American pika, the polar bear, the wolverine, and the Gunnison sage-grouse—and their implications. We conclude with some surprising observations about the Obama Administration’s apparent endorsement of Justice Scalia’s approach to the ESA’s habitat protections, the Administration’s endorsement of constitutional standing rules to limit the effective scope of the statute, the growing significance of the distinction between endangered and threatened species, and the unintended boomerang effects of the administrative reforms of the statute in the 1990s.
Reviewing preliminary injunction motions under the Endangered Species Act (ESA), most district courts evaluate “irreparable harm” through one of two lines of analysis. One line, promoted by property rights interest groups, reasons that individual mortalities might not constitute irreparable harm if they do not impact survival of the species. In contrast to this “species-level harm” analysis, another approach argues that “individual-level harm” suffices because it is irreparable to the animal. The recent First Circuit opinion in Animal Welfare Institute v. Martin attempts, but ultimately fails, to bridge the divide over which level of analysis to apply for irreparable harm under the ESA. Rather than pick a side about the appropriate level of animal harm analysis, this Article approaches the question of irreparable harm from a fresh angle. Drawing on procedural and remedial principles from across the ideological spectrum, this Article argues that analyzing the scope of animal harm is a false choice. Instead, courts should look to the human plaintiff to define irreparable harm: Will the defendant’s actions harm the plaintiff’s interest? Focusing on irreparable harm to the plaintiff cleans up a messy jurisprudence: it fits the plain text of the traditional injunction standard, fulfills the purpose of the ESA, and synchronizes with the standing analysis. This Article investigates the consequences of moving from an animal harm to a human harm analysis for ESA preliminary injunctions, and identifies the likely challenges for both institutional defendants and wildlife advocates.
Brie D. Sherwin
Recently in Texas, the dunes sagebrush lizard—a tiny, little-known reptile living in the sparse brush and dunes of the oil and gas fields—sparked a heated discussion and criticism over the listing process under the Endangered Species Act (ESA). This six-year battle ended with the withdrawal of a proposed rule to list the lizard and resulted in numerous criticisms about the role and use of scientific data throughout the process. Under the ESA, the United States Fish & Wildlife Service (FWS) is required to consider the best available scientific data when deciding whether to list a species. However, there is no direct legislative history explaining this standard. Because existing scientific data on “stressors” in the environment is typically limited and inadequate, this data gap leads to uncertainty, which unquestionably leads to difficult decision making by the regulatory agencies. Although a review of past listing designations confirms that FWS is not only utilizing sound science, but more often than not, is making sound decisions based on that science, many policy makers are still criticizing the use of science in decision-making processes and are pitting science against economics. This Article advocates for a more systematic, transparent application of science in the decision-making process: a well-defined “weight of evidence” approach that will foster structured deliberations, hypothesis testing, and the necessary clarity and transparency that will benefit all parties involved.
James Jay Tutchton
This Article, presented by a former general counsel for WildEarth Guardians, discusses the organization’s attempts to protect imperiled species under the Endangered Species Act (ESA). By comparing extinction patterns from the past, we can see that the human impact on the Earth’s biodiversity is similar to that caused by past geological catastrophes. The ESA is the Noah’s Ark of our time, providing the best opportunity to help stem the tide of extinction. In analyzing the ESA, it is clear that the Act serves important human interests and is effective when utilized as intended. However, the United States Fish & Wildlife Service (FWS)—citing budgetary restrictions—has failed to list thousands of species likely warranting protection. WildEarth Guardians, in an effort to prevent humans from driving a large percentage of other species to extinction, developed a strategy in which they filed two “mega-petitions” and conducted a “BioBlitz.” The mega-petitions, which sought the listing of hundreds of species, and the roughly six week BioBlitz finally got the attention of FWS and led to a Multidistrict Litigation settlement. The Article concludes by analyzing the effectiveness of the settlement and its resulting success for the future of the ESA.