Academic journal article Albany Law Review

They Paved Paradise and Put Up a Parking Lot

Academic journal article Albany Law Review

They Paved Paradise and Put Up a Parking Lot

Article excerpt

I. Introduction

The United States has recognized the importance of biological diversity(1) because of the unlimited benefits that potentially could be conferred from unidentified species.(2) Faced with increasing numbers of species extinctions, Congress enacted the Endangered Species Act (ESA or Act)(3) in 1973 to encourage conservation and to protect biodiversity. However, the species-by-species listing procedure provided by the ESA does not adequately protect the ecosystems of endangered species nor promote biodiversity.(4) According to Edward O. Wilson, "[i]f the biodiversity crisis remains largely ignored and natural habitats continue to decline, we will lose at least one quarter of the earth's species.(5)

The ESA's current regulatory scheme does not prevent the problems that the Act was intended to solve. Currently, the ESA establishes a general prohibition against the taking of endangered or threatened species.(6) To clarify the "take" prohibition, the Director of the Fish and Wildlife Service (FWS) promulgated a regulation defining the term "harm" within the take prohibition of the ESA.(7) The agency's promulgation of the "harm" regulation, however, has been controversial and the topic of much litigation.(8) Most recently, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(9) the Supreme Court ruled that where habitat modifications directly or indirectly actually kill or injure individually listed members of a species, and where such an effect is proximate and foreseeable, such habitat changes are prohibited by the takings clause of the ESA.(10) Subsequently, private land owners have criticized this ruling as an overly expansive interpretation of the ESA because it prevents them from developing all the viable uses of their land.(11) On the other hand, environmentalists have labelled the Supreme Court's decision a narrow construction of the ESA's purpose of protecting biodiversity.(12)

This Comment argues that the ESA fails to achieve its stated purpose of biodiversity, and therefore, the United States must shift gears and implement habitat conservation planning. Part II of this Comment provides a brief history of the ESA and the take definition. Part III sets forth the controversial harm regulation. Part IV outlines the procedural history of the most recent leading case interpreting the harm regulation, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. Part V analyzes the Supreme Court's decision in Sweet Home. Finally, Part VI offers several solutions for dealing with the ambiguous take prohibition and explains why habitat conservation planning offers the most appropriate solution for addressing the decision's subsequent ambiguities.

II. The Endangered Species Act

In the United States, the ESA has been providing federal protection to endangered species since 1973.(13) The purpose of the ESA is "to provide for conservation, protection and propagation of endangered species of fish and wildlife by Federal action. and by encouraging the establishment of state endangered species conservation programs."(14) According to the Senate Committee Report, the two major sources of the extinction of species are hunting and habitat modifications.(15) In order to curtail the risk of extinction posed to endangered species by hunting and habitat modification, section 9(a)(1)(B) prohibits the taking of endangered species.(16) The takings clause of the ESA states that it "is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States."(17) This prohibition applies to both private and governmental parties. Take is defined in the ESA as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(18) Legislative history indicates that take should be defined "in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife. …

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