Academic journal article Duke Environmental Law & Policy Forum

Endangered Species Act Innovations in the Post-Babbittonian Era - Are There Any?

Academic journal article Duke Environmental Law & Policy Forum

Endangered Species Act Innovations in the Post-Babbittonian Era - Are There Any?

Article excerpt

INTRODUCTION

There was a time when I did not have much nice to say about the Endangered Species Act (ESA). (1) It struck me as always expanding in regulatory impact without producing a corresponding improvement in the condition of imperiled species. (2) Indeed, in many ways it seemed a downright perverse statute, that is one that sent the wrong message to landowners about what it means to have habitat for endangered species on their property: get rid of it before the government knows it's there. (3) I never went as far as the so-called "property rights" advocates, who condemned the ESA as if it were a form of communism. (4) Rather, as a self-proclaimed member of the radical center. (5) I simply believed there had to be a better way to get the job of species conservation done.

Well, there was. The tenure of Bruce Babbitt as Secretary of Interior during the Clinton Administration was a turning point in the ESA's history as important as any other. Babbitt put forth a concerted, long-term effort to find a better way to implement the statute and largely succeeded. The Babbitt story, is well known and documented. (6) Not everyone was pleased with what transpired under his term, but most of those who were dissatisfied occupied opposite ends of the political spectrum. In other words, those of us in the middle had our day.

But this Article is not about the Babbitt era. Rather, it concerns what has been done by the Bush Administration's Department of the Interior to continue the process of innovation. Part I provides a brief background on the ESA's statutory programs. Part II offers a summary of regulatory innovation as practiced in environmental law circles to assist in the evaluation of the ESA in the Babbitt and post-Babbitt eras. Part III summarizes the innovation themes of the Babbitt era in order to allow comparison to what has followed. Part IV examines what Gale Norton, as Secretary of the Interior under the Bush Administration, has accomplished to keep the ESA innovation movement alive.

The end result is that not much has happened. Thus far, the Bush Administration has no high-profile ESA innovation "products" it can call its own, though it has finalized or updated several polices that were initiated during the Babbitt era and thus has put its imprint on the direction of those innovations. The Bush Administration does appear to be gearing up some new approaches with respect to intergovernmental relations under the ESA and has focused more on ground-level projects aimed at partnering with landowners and other resource managers. But overall, there is no theme of ESA innovation emanating from the Department as there was under Babbitt.

It is not altogether clear what to make of this. Babbitt was a tough act to follow, and it was not immediately obvious when the Bush Administration stepped in where more innovation was needed, if any was needed at all. What was left to innovate? After all, times have changed. The events of 9/11 have moved many ESA issues to the side or the background. Courts have also increased their role in ESA oversight, forcing the Bush Administration, even more than during the Babbitt era, to follow a judicially prescribed agenda rather than set its own. (7) Thus, other than covering the topic of innovation under the ESA in the following pages and offering some opinions along the way, I would not have the audacity to issue a "report card" on the Bush Administration's record of innovation under the ESA. Suffice it to say, though, that these times are not nearly as interesting as was life as an ESA lawyer in the Babbitt era.

I. SETTING (8)

The ESA requires the Secretary of the Interior, who acts through the Fish and Wildlife Service (FWS), and the Secretary of Commerce, who acts through the National Marine Fisheries Service (NMFS), to make various decisions about the status and protection of animal and plant species. (9) The FWS and NMFS administer several core programs in that regard, some of which are explored in more detail later in the Article. …

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